BUFFALO, N.Y. (WIVB) – The region’s largest nonprofit advocate for clean and restored waterways said Thursday’s Supreme Court decision to deregulate millions of acres of pollution-filtering wetlands could have serious consequences for the region.
But proponents of the court’s decision said farmers and private landowners finally have much-needed clarity on the meaning of the phrase “the waters of the United States” in the Clean Water Act, after decades of confusion and overreach by environmental regulators. The decision in Sackett v. EPA resulted in a more stringent definition that environmental regulators must meet to protect wetlands. The court’s opinion is that the CWA covers wetlands with a continuous surface connection to a traditional navigable waterway, such as the sea, a river, creek, or lake.
In other words, for a wetland to be covered by the CWA, its water must flow directly into a neighboring water used for interstate commerce.
This decision marks the fourth time in 38 years where the Supreme Court clarified the phrase.
Justice Samuel Anthony Alito Jr.’s opinion was that environmental regulators have wrestled with this problem for a half century, which led to “varying interpretations” and expansion of the law outside its original intent.
“And because the CWA can sweep broadly enough to criminalize mundane activities like moving dirt, this unchecked definition of ‘the waters of the United States’ means that a staggering array of landowners are at risk of criminal prosecution or onerous civil penalties. What are landowners to do if they want to build on their property?”
Steve Ammerman, communications director for the New York Farm Bureau, said all farmers wanted was clarity.
The Obama Administration “greatly expanded” the definition of waters of the United States, Ammerman said, which led to confusion and concern that things such as road ditches and flooded yards could be considered protected waters by regulators.
“It was really very subjective, depending on where you lived, the interpretation of your local EPA or Army Corps of Engineers office, and anytime you would have to do something under a ‘waters of the US,’ you would need a federal permit, which also increase costs, increase time, so, really, what our farmers sought was just more certainty and a more clear definition.”
Environmental advocates, however, fear the decision will likely lead to degradation of our rivers, creeks, and lakes, including the Great Lakes, and potentially reverse decades of success stories of preserving and restoring unhealthy waterways, including Lake Erie, Buffalo River, and Scajaqauda Creek.
They point to how development and other man-made actions in the United States have already erased more than half of the wetlands that existed during the American Revolution, which in turn has sped up the rate of extinction of freshwater organisms.
“The court reasoned that as a practical matter, a wetland gets and deserves protection when it has a surface connection to a navigable body of water,” said Margaux Valenti, legal director for Buffalo Niagara Waterkeeper. “But as an ecological matter, that is wholly nonsense. It discounts the fact that groundwater connections exist. It doesn’t account for the fact that wetlands are sometimes dry, and some of our most important wetlands in Western New York fit those criteria.”
The case involves Michael and Chantell Sackett, a couple from Idaho, who bought a home lot near Priest Lake, but had to backfill portions of the property before construction.
The EPA said the backfilling of dirt and rock violated the Clean Water Act, because their property has protected wetlands near a navigable waterway.
The EPA demanded the Sacketts get a permit, restore the property, and threatened six-digit penalties for each day the couple did not comply.
From the EPA’s perspective, the definition of “the waters of the United States” included all waters that could affect interstate or foreign commerce, even adjacent wetlands without common borders or direct surface connection.
Therefore, the EPA asserted that the Sacketts illegally dumped the dirt and rock into wetlands adjacent to other bodies of water that feed into Priest Lake, a navigable waterway.
Critics, including farmers, argued the EPA’s interpretation violated private property rights, and required impractical and expensive fixes.
Ammerman said farmers need clean water, too, and they have invested a lot in buffer strips, terracing, and planting cover crops that all help reduce fertilizer runoff from reaching protected waters.
“This isn’t an open, free reign to pollute,” Ammerman said. “This is all about the permitting process, and what immediately qualifies and what doesn’t. There are still ramifications if someone knowingly pollutes, that’s not the issue here. The issue here is what is the overall boundary under the law?”
Valenti said while it is fair criticism that the rule had become confusing for ordinary people to understand, the concerns raised by the agricultural industry are “misleading and misguided.”
“There are plenty of exemptions to protect our agricultural industry,” Valenti said. “In addition, the history of wetland jurisprudence and regulation in this country is wildly confusing. But the wetlands regulations have never been so sensitive that they would apply to a ditch and the Supreme Court has in fact wholly exempted ditches under their jurisprudence.”
Even four justices in their concurring opinion stated that by narrowing the CWA’s coverage of wetlands to only those that have surface connections with navigable waters, “will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”
Valenti said wetlands reduce flooding and shoreline erosion, but also filter out pollutants. The EPA puts wetlands on the same scale as rain forests and coral reefs in terms of productive ecosystems. For example, Buffalo Niagara Waterkeeper last year restored a wetland in the Town of Niagara south of the Niagara Falls International Airport, which improved the health of Cayuga Creek, restored critical habitat, and reduced flooding in nearby neighborhoods plagued with it for decades.
Lake Erie may be prone to more flooding, and nutrient runoff from farms, which have been the source of harmful algae blooms in the shallower western side of Lake Erie, as well as regional waterways such as Chautauqua Lake, Java Lake, and Tonawanda Creek, she said.
“There is absolutely a concern that this decision will negatively impact our Great Lakes and our local waterways,” Valenti said. “This case discounts the importance of wetlands on an ecological basis, which lay people also have trouble understanding unless you are a hydrologist or an ecologist,” Valenti said. “And it enables just what you can see with your eye to be the only thing that is protectible, and that just doesn’t make scientific sense.”