Late last month, a narrow Supreme Court decision altered the way wetlands in the country are protected under federal law. The case involved a lawsuit filed by a married couple, Michael and Chantell Sackett, who were told they need federal permits to build on wetlands located on their half-acre property near Priest Lake, Idaho.
In the Court’s 5-4 decision in favor of the Sacketts, Justice Samuel Alito wrote that a wetland must have “a continuous surface connection” with a navigable waterway to earn protection under the Clean Water Act. But as critics of the decision noted, many wetlands lack such a direct continuous connection, for example, during dry seasons or in droughts.
Mark Squillace, Raphael J. Moses Professor of Natural Resources Law at the University of Colorado Law School, spoke with FERN’s Ag Insider about the impact of the court’s decision on the future of the nation’s wetlands. This interview has been edited for length and clarity.
How did a case about an Idaho couple building on a half-acre of land make its way to the nation’s highest court and determine the future of our waterways and wetlands?
It’s a case championed by property rights advocates. Developers had been concerned about their responsibility to get permits under section 404 permits of the Clean Water Act. That section requires permits from parties who engage in dredge and fill activities on Waters of the United States (WOTUS). Certain types of wetlands have long qualified as WOTUS, but depending on the development, the process for obtaining such a permit can be rather expensive.
Choosing a relatively small parcel of land for this kind of attention heightened the impact of the Sackett decision because now, it applies to similarly situated land anywhere in the country.
What are some of the most immediate environmental impacts that we could see?
This decision ignores one of the chief purposes of the Clean Water Act, which is to protect the biological integrity of our nation’s waters.
What we are going to lose is our ability to protect wetlands that might have a less obvious connection to navigable waterways, but are nonetheless critical to protecting our biological resources.
We don’t really know yet how this will play out, but I would expect that property owners who want to develop their land and don’t want to have to obtain a permit from the Army Corps of Engineers are going to assert that the Corps doesn’t have jurisdiction. (The Army Corps of Engineers has been responsible for issuing such permits.)
The Corps is going to have a very difficult time claiming jurisdiction unless they can show impacts on relatively permanent waters with a clear surface connection between the wetlands and navigable waterways that adjoin the property.
Before the Sackett decision, adjacent was understood to mean in the vicinity of or near the navigable waterways, not actually adjoining. The decision uses the word “adjacent,” and the majority acknowledges that, but they basically say the court can construe “adjacent” in narrow terms.
Some agriculture industry groups have lobbied in support of this decision. Will we see immediate changes in Agriculture?
Agriculture undoubtedly recognizes that they contribute a lot of pollution to our nation’s waterways.
A lot of the land clearing activities that the farmers engage in, like filling in wetlands, could be subject to regulation but they are largely exempt from complying with the discharge permit programs under the Clean Water Act. They were likely concerned that an expansive interpretation of the Act might ultimately cover some agricultural activities.
It’s hard to deny that the ag activities can have a significant adverse effect on our nation’s waterways. A narrow decision like the Sackett case probably gives farmers some assurance that they’re a long way from being regulated by the government.
Your research is based out of Colorado and Western states. Given recent historic droughts in the region and climate change, how will this decision affect land use in that region?
Some states like Colorado and California are trying to step in to fill the void left by this decision. Colorado could adopt regulations that would require state permits in order to engage in dredge and fill activities for any wetlands — whether they’re Waters of the United States or not.
I expect that a number of states will protect wetlands when the federal government fails to do so. On the other hand, I’m quite sure that a number of other states will deliberately allow wetlands in their states to be destroyed by private developments.
Are there specific regions of the country that will be heavily impacted by this decision?
I would expect that the biggest impacts may very well be felt in coastal areas, especially in the southeastern United States. Our coastal wetlands have substantially degraded over the years and this decision largely gives a green light to developers to continue to degrade and destroy some of the wetlands along the coast.
If you’re building a port or natural gas export terminal along the coast, you’re bringing in big ships and engaging in a lot of dredging and filling activities where biological resources are likely to face a significant risk of harm.
Suppose you build a few hundred feet inland and aren’t adjoining those waterways. In that case, your land might not be considered adjacent or adjoining and you can build on that property without a permit even if it includes coastal wetlands.
With this decision now law, what can be done to protect the nation’s wetlands and waterways?
I would like to think that maybe in my lifetime we will see this decision reversed, if not by the court itself then maybe by Congress, but I’m not holding my breath.
In the meantime, we have to approach our state legislatures, governors, and our state regulatory agencies to take up the mantle of protecting our nation’s waterways, particularly our wetlands; they’re an extremely important resource and our ability to protect them has been severely compromised by this decision.