The Clean Water Act (CWA) is the primary law in the United States that protects surface waters from pollution. Historically, the CWA has applied to wetlands and waters with a “significant nexus” to navigable waters. However, the Supreme Court’s 2023 decision in Sackett v. EPA significantly reduced the scope of waters protected under the CWA. Sackett rejected the “significant nexus” test and held that the CWA applies only to “wetlands with a continuous surface connection” to navigable waters. The Sackett WOTUS definition also excludes non-relatively permanent waters, which significantly affects streams and creeks, particularly in the arid West.
These wetlands and non-perennial (non-continuously flowing) streams serve crucial purposes. Wetlands mitigate water quality concerns, curb flooding, and support up to 40% of the world’s biodiversity. Non-perennial streams bring significant amounts of water to larger rivers and play an essential part in habitat formation and nutrient distribution. Nonetheless, the Sackett decision disregards the fact that these surface waters are critical and deserving of protection under the CWA.
Recently, our friends at the National Resource Defense Council (NRDC) released a report estimating the consequences that Sackett will have on waters nationwide. Using Geographic Information System (GIS) data, NRDC quantified the extent to which streams and wetlands will lose CWA protections after Sackett under three possible interpretation scenarios. The strictest interpretation—which the Trump Administration may very well adopt in a forthcoming rulemaking—only protects wetlands “indistinguishable” from nearby waters. Under this scenario, NRDC found that 95% of nationwide, individual wetlands would go unprotected. In California, 96% of individual wetlands are at risk of losing protections after Sackett. Even the two less stringent interpretations exclude over half of California’s wetlands from CWA protections.
And the losses are not limited to wetlands: streams are also left vulnerable. With California’s Mediterranean climate, seasonal and ephemeral (waters that only flow for a short duration in direct response to precipitation) streams are characteristic of the state’s hydrology. According to NRDC’s report, over 90% of California’s streams are “intermittent” or “ephemeral,” and thus at risk of losing CWA protections after Sackett.
The losses in CWA protections after Sackett are tremendous. California must act to prevent harm toward these irreplaceable water resources.
NRDC’s report only further solidifies the need for Senator Ben Allen’s SB 601, a CCKA co-sponsored bill. SB 601 would bring back the protections previously granted to water bodies under the CWA. If we wish to continue to protect both aquatic ecosystems and California’s citizens, we must fill in the gaps that have been created by federal rollbacks.
Just this week, SB 601 secured its first victory in the Senate Environmental Quality Committee. SB 601 will be heard in the Senate Judiciary Committee later this month.
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Berit Cummings is an intern at CCKA fighting for swimmable, fishable, and drinkable waters for all and is currently a student at USC.
Photo credit: Bureau of Land Management
