Sackett versus EPA – A Landmark Environmental Decision

?What Do Wetlands Do and Why Are They Important?

Wetlands are highly valuable ecosystems that provide a wide range of important functions and benefits. Here are some key roles and services that wetlands perform:

Water Filtration: Wetlands act as natural filters, purifying water by trapping and removing pollutants, sediments, and excess nutrients. They help improve water quality by preventing these substances from reaching rivers, lakes, and groundwater.

Flood Control: Wetlands play a crucial role in flood mitigation. They absorb and store excess water during heavy rains or floods, acting as natural sponges. By temporarily holding and slowly releasing water, wetlands help reduce the risk of downstream flooding.

Habitat and Biodiversity: Wetlands support a diverse array of plant and animal species, many of which rely on these unique ecosystems for their survival. They provide nesting areas, breeding grounds, and feeding habitats for numerous bird species, fish, amphibians, reptiles, and mammals.

Carbon Storage: Wetlands are effective carbon sinks, meaning they store significant amounts of carbon dioxide from the atmosphere. The vegetation in wetlands absorbs carbon dioxide during photosynthesis, helping to mitigate climate change by reducing greenhouse gas emissions.

Erosion Control: Wetland vegetation, such as marsh grasses and mangroves, helps stabilize soil and prevent erosion along coastlines and riverbanks. Their intricate root systems and dense vegetation act as natural barriers, protecting against erosion caused by waves, currents, and storms.

Recreation and Aesthetics: Wetlands offer opportunities for recreational activities such as birdwatching, fishing, boating, and hiking. They provide serene and scenic landscapes appreciated by people for their beauty, tranquility, and connection with nature.

Overall, wetlands are essential for maintaining ecological balance, promoting biodiversity, protecting water resources, and supporting human well-being. Their preservation and proper management are crucial for sustaining healthy ecosystems and the many benefits they provide.

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Sackett v. EPA

The recent Supreme Court decision in Sackett v. EPA (“the decision”) provides a more precise definition of wetlands protected under the Clean Water Act, which could be seen as a positive for developers/property rights advocates and a negative for environmentalists. The court clarified that federal protection for wetlands should only apply to those directly connected to rivers, lakes, and other bodies of water. This decision offers greater clarity and reduces potential ambiguity for developers, allowing them to proceed with their projects more efficiently.

Summary of the Supreme Court Case:

Sackett v. EPA is a landmark environmental law case in the United States. It involved a couple, Mike and Chantell Sackett, who owned a residential lot in Idaho and planned to build a home. They began filling the lot with dirt and rocks, intending to construct a house on it. However, the Environmental Protection Agency (EPA) issued a compliance order claiming that the property contained wetlands and required a permit under the Clean Water Act.

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The Sacketts disagreed with the EPA's determination and argued that they should have the right to challenge the compliance order in court before facing potentially severe penalties (potentially $40,000 per day!). They filed a lawsuit against the EPA, contending that their due process rights had been violated. The case ultimately reached the U.S. Supreme Court.

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In 2012, the Supreme Court ruled unanimously in favor of the Sacketts, stating that they had the right to seek judicial review of the EPA's compliance order. The Court determined that property owners have the right to challenge administrative orders before being subject to penalties, allowing them an opportunity to present their case in court. The decision was seen as a significant victory for property rights and provided a precedent for individuals to challenge federal regulatory actions.

By narrowing the scope of wetlands eligible for federal protection, the decision alleviates some of the regulatory burdens that property developers often face. Obtaining permits for discharging materials or conducting activities in wetlands can be time-consuming and costly. With a more streamlined approach, developers can expect reduced regulatory obstacles and a more straightforward process for their projects.

Moreover, the decision acknowledges the importance of a balance between environmental protection and development. It recognizes that wetlands adjacent to water bodies already enjoy protection and focuses on defining the specific wetlands that warrant federal oversight. This ensures that critical environmental areas are preserved while enabling responsible development to take place.

The decision provides developers with greater certainty and clarity regarding which wetlands require federal permits. This promotes economic growth and job creation by facilitating construction projects that might have been hindered by previous uncertainties and complex regulations. It also encourages investment in development while ensuring that appropriate environmental safeguards remain in place for wetlands directly connected to significant water bodies.

On the flip side, some environmentalists think that it will be open season on wetlands impacts and the detriments to the ecosystem will be long-lasting. This obviously assumes that some developers out there will choose not to be responsible for their impacts on the environment, but I do not think all developers act in that manner – of course, some will.????

“Direct Connection” versus “Significant Nexus”

In the context of the decision, the term "direct connection" refers to a continuous surface connection between wetlands and larger bodies of water, such as rivers, lakes, and oceans. This means that the protected wetlands must physically and visibly connect to significant water bodies.

The concept of a "significant nexus" was proposed by Justice Kennedy in a previous case but was not adopted as the majority opinion in the decision. The significant nexus standard suggested that wetlands should be protected if they have a substantial ecological connection to navigable waters, even if there isn't a continuous surface connection. However, in the decision, the majority of the justices did not adopt Kennedy's significant nexus approach.

Instead, the court ruled that protected wetlands must have a continuous surface connection (example a. in the photo) to larger water bodies, as described by Justice Scalia in a prior case. This narrower interpretation focuses on visible and direct physical connections between wetlands and significant water bodies.

Potential Impact on Water Quality

The decision could potentially have an impact on water quality. By narrowing the scope of wetlands eligible for federal protection under the Clean Water Act, there is a concern that certain wetlands, especially those that are not directly adjacent to water bodies but still have ecological connections, may lose their federal protection. These wetlands play a vital role in filtering pollutants, absorbing floodwaters, and maintaining water quality.

When wetlands are protected, it helps prevent contamination from entering rivers, lakes, and oceans. They act as natural buffers, filtering and purifying water by trapping sediments, nutrients, and pollutants. Wetlands also provide habitat for various plant and animal species, contributing to biodiversity and ecological balance.

The full extent of the impact on water quality is not yet fully known and will depend on various factors, including how individual states and local authorities respond to the ruling. Some states may choose to implement their own regulations to protect wetlands that fall outside the federal jurisdiction.

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Perennial, Intermittent, and Ephemeral Streams

Perennial Streams: These streams flow year-round and have water flowing in them continuously. They typically receive water from groundwater sources, such as springs, and contribute to the baseflow of rivers and larger water bodies. These types of streams were not referenced or impacted by the decision.?

Intermittent Streams: Intermittent streams flow periodically, usually during certain seasons or after rainfall events. They may have flowing water for part of the year but may also become dry during drier periods. These types of streams will be impacted by the decision.?

Ephemeral Streams: Ephemeral streams are those that flow only during and immediately after precipitation events. They are typically rain-dependent and may remain dry for extended periods between rainfall events. These types of streams will be impacted by the decision.?

According to the EPA, ephemeral and intermittent streams collectively make up a significant portion of the nation's stream network. In their Clean Water Rule published in 2015, the EPA estimated that approximately 60% of stream miles in the continental United States are intermittent or ephemeral (especially in dryer regions).

The decision will affect the regulatory oversight of ephemeral and intermittent streams that do not have a continuous surface connection to significant water bodies. If these types of streams are not deemed to have a direct, visible connection, they may fall outside the federal jurisdiction and could be subject to less stringent regulations under the Clean Water Act.

However, it's important to note that the regulatory status of ephemeral and intermittent streams is still subject to ongoing debates and legal interpretation. The EPA and other relevant agencies may need to provide further clarification or revisions to their regulations in response to the ruling. Again, individual states may have their own regulations in place to protect and manage such streams, even if they are not subject to federal jurisdiction.

Just added these next two as a reference and they, like perennial streams, are not referenced or impacted by the decision but are used in the context of researching a potential property for development.

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“Blue Line” Stream

The term "blue line" is often used to refer to streams or water bodies that are depicted on maps with blue lines, indicating their presence. However, the percentage of streams classified as "blue line" can vary widely depending on the specific context and purpose of the mapping.

The "blue line" classification itself does not necessarily indicate any specific regulatory or ecological significance. It is primarily a cartographic representation to denote the presence of streams or water bodies on maps.

Navigable Waters

According to the United States Army Corps of Engineers (USACOE), Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.

A determination of navigability, once made, applies laterally over the entire surface of the water body and is not extinguished by later actions or events which impede or destroy navigable capacity.

In the decision, the issue at hand was whether certain wetlands on the Sacketts' property were subject to regulation under the Clean Water Act (CWA). The decision did not explicitly define or provide an exhaustive list of navigable waters included in the CWA. However, it did address the jurisdictional scope of the CWA and its application to wetlands.

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Future Implications on EPA Regulations

The decision could have implications for future EPA regulations and their enforcement. The decision narrows the interpretation of the Clean Water Act, specifically regarding the scope of wetlands that are eligible for federal protection. This ruling sets a precedent and establishes a legal framework that may influence how the EPA and other federal agencies regulate wetlands in the future.

The ruling could potentially limit the EPA's regulatory authority over wetlands that do not have a direct, continuous surface connection to significant water bodies. It may result in a narrower definition of wetlands eligible for federal permits, reducing the areas under federal oversight. This could impact the EPA's ability to enforce regulations related to water pollution and the discharge of dredged or fill material in certain wetland areas.

However, it's important to note that the full extent of the impact on future EPA regulations will depend on several factors. This includes how the EPA responds to the ruling, whether there are changes to the Clean Water Act through legislative action, and how individual states and local authorities choose to regulate wetlands within their jurisdictions.

It is possible that the EPA may need to review and adjust its regulations or guidelines in light of the ruling to ensure compliance with the new interpretation of the law. Additionally, there will be ongoing debates and legal challenges surrounding the issue, which could further shape the future of EPA regulations related to wetlands.

Overall, the decision may lead to potential shifts in the EPA's approach to wetland regulation and enforcement. However, the exact implications and long-term effects on future regulations will require further examination as subsequent actions and developments unfold in response to the ruling.

Hopefully, developers will take a “responsible” approach to development and environmentalists will continue to advocate for the protection of our natural resources.

A balance can be found, but it won’t be a quick and easy fix.??