AMARILLO, Texas (KAMR/KCIT) – In the wake of a recent US Supreme Court ruling stripping federal agencies of authority over millions of acres of wetlands in a weakening of longstanding environmental legislation, the situation over the ownership and protection of playa lakes, rivers, and groundwater systems on the High Plains has gotten murkier.

On Thursday, as previously reported on MyHighPlains.com, the Supreme Court sharply limited the federal government’s authority to police water pollution into certain wetlands with its ruling in the Sackett v. EPA case. By a 5-4 vote, the court said in an opinion by Justice Samuel Alito that wetlands can only be regulated under the Clean Water Act if they have a “continuous surface connection” to larger, regulated bodies of water. 

Environmental advocates said the decision may strip federal protections from tens of millions of acres of wetlands across the US. Up to this point, the Environmental Protection Agency and the US Army Corps of Engineers have been interpreting the idea of “waters of the United States” – federally owned waters – according to pre-2015 regulatory measures.

As noted in previous reports, that has meant the EPA and US Army Corps of Engineers have crafted environmental regulations according to a 2006 SCOTUS ruling and its concurring opinion from former Justice Anthony Kennedy. That ruling said that WOTUS includes navigable and “relatively permanent, standing or continuously flowing bodies of water” such as oceans, rivers, and lakes, and “wetlands with a continuous surface connection” to one of those bodies. Kennedy said that waters and wetlands also qualified as WOTUS if they have a “significant nexus” to navigable waters.

As a result of that 2006 ruling and opinion, federal agencies were allowed to regulate water and wetlands that could impact the health of larger waterways. The ‘significant nexus’ rule acted as the standard, if a fluid one, for evaluating whether or not land developers need permits to build on or near wetlands or certain bodies of water under the 1972 Clean Water Act, and also allowed for regulations over what can be discharged into wetlands and other water.

However, Thursday’s ruling stating that wetlands need to have a “continuous surface connection” to larger regulated bodies of water means that federal protections for water in the western US have been thrown into question.

Shown in a 2017 slideshow by the US Army Corps of Engineers obtained by E&E News, at least 51% of wetlands in the US do not meet a “continuous surface connection” standard due to not intersecting with any mapped streams, and an extra 13-14% of the wetlands may not qualify because they only intersect with “intermittent” or “ephemeral” streams.

In the western US, including the High Plains, droughts have been getting increasingly longer, harsher, and more frequent, causing many of the rivers and streams to lower or entirely dry up for most of the year. This means that surface water sources for the High Plains, such as the Canadian River and the Red River, may have their own federal protections put into flux, but also further destabilizes bids for protections of major water features they connect to, such as both the region’s Ogallala Aquifer System and thousands of ephemeral playa lakes.

The Canadian River and the Red River, as described by the Texas Commission on Environmental Quality and the Texas State Historical Association, are major rivers that span multiple states across the High Plains. The Canadian River, a tributary of the Arkansas River, touches Colorado, New Mexico, Texas, and Oklahoma. Meanwhile, the Red River is in the Mississippi drainage basin and touches Texas, Oklahoma, Arkansas, and Louisiana.

While these are both major rivers connected to major river systems, in the High Plains they both flatten out for long stretches of their courses to become intermittent, bounded in mud flats or spreading out into quicksand-laden marshland. This, according to collected data, has created a situation in which the rivers, lakes, playa lakes, and aquifer systems across the region all feed off of one another in numerous ways, including:

• The playa lakes and river drainage basins collect rainfall and floodwaters and at times introduce minerals and salts to the river waters;
• The river water running into the basins and the playa lakes contributes to aquifer recharge and surface water levels; and
• The lakes fed by the rivers act as major water suppliers for municipalities in the region, as well as act as reservoirs for the rivers and assist in catching and distributing floodwater.

As the High Plains prepares to enter a summer and fall influenced by El Niño conditions, according to seasonal forecasts, the rivers and lakes have already seen distinct increases in water levels throughout May. While this has provided some relief to the sustained drought conditions in the region over the last few years and given a boost to water reserves for its communities, it also serves as a visual reminder of the intertwined nature of the area’s surface and groundwater sources, and those of the rest of the country. Each one sustains and supports the other just as they work to sustain and support their dependent communities in Texas as well as in neighboring states.

The most recent session of the Texas Legislature sent a number of bills to the desk of Texas Gov. Greg Abbott relating to water and groundwater in the state, including a bill aimed at establishing a new fund to invest in water infrastructure and supply, and some entities such as the Canadian River Compact Commission and the Red River Compact Commission exist that work to regulate and protect major surface water suppliers. However, the bounds of federal oversight and protection over these water sources and others remain clouded, and this latest court ruling appears to point towards a preference for individual state and community guidelines regarding water.

It remains to be seen now how the latest court ruling will impact EPA guidelines and protections for rivers, lakes, and wetlands across the High Plains, or how those changes will trickle down into how inter- and intra-state agencies and communities will regulate water and water quality. For the moment, Texas and its neighboring states can both await the outcomes of the assorted water bills from the state legislature, as well as consider voluntary participation in surface water and wetland conservation and protection measures from state and federally-funded programs such as the Wetland Reserve Enhancement Partnership.