The recent decision didn’t so much “strike down” the protections, but rather ruled that the relevant law does not apply to the wetlands the EPA used to apply it to. There was previous ruling, which according to SCOTUS, was erroneous, and so it reversed it.
This is perfectly reasonable if you look at the original law and intent behind it, and the wetlands the federal agency no longer can claim control over. The original law was passed to protect the “navigable waters of the United States”. The agency claimed that wetlands around random creek flowing into a lake are covered, because there is a “significant nexus” between it and some navigable waters, somewhere. If you disagreed, tough luck, your best option was to appeal to the same agency, making it both judge and prosecutor in the same case, and in any case is not a practical option for a random person without deep pockets, who just want to build a house on a lake.
The ruling said that when the law says it applies to navigable waters of United States, you can apply it only to waters or wetlands that actually are navigable for purposes of interstate commerce, or are so connected to these waters to be practically indistinguishable. This is perfectly reasonable: if given wetlands are not connected to interstate navigable waters, why should they be under federal jurisdiction in the first place, especially given the plain language of the relevant law? If the state wants to protect its own waters and wetlands, it’s certainly free to do so.
Now, I believe that federal government could actually argue that the random wetlands actually can be under its jurisdiction, if they affect the water in other states, eg. through ground water flows etc. However, they will need to pass a new law to assert that, instead of leaning on old law that clearly did not mean to cover this.
> Now, I believe that federal government could actually argue that the random wetlands actually can be under its jurisdiction, if they affect the water in other states, eg. through ground water flows etc. However, they will need to pass a new law to assert that, instead of leaning on old law that clearly did not mean to cover this.
You can also raise the counterpoint here: 45 years of precedent says they're included, and if you don't like it, pass a law saying it doesn't.
Congress shouldn't have to constantly pass laws just to tell the executive branch that they are abusing their powers. That's what the judiciary is for.
My uncle has a small stream running through his back yard, counted as "navigable water" despite the fact that I could jump across it as a child and it wasn't deep enough to support anything but a paper boat.
I'm also not saying we shouldn't have protections for the environment, but loose interpretation of rules is how you get corruption and abuse.
> constantly ass laws just to tell the executive branch they are abusing their powers.
Nobody is suggesting that. The basic argument is if both the executive and the judiciary misinterpret a law for decades then it’s the legislative branch’s job to correct that “misunderstanding” not the judiciary. This is why it’s called a common law, past court cases clarify the rules. https://en.wikipedia.org/wiki/Common_law
When president exists it’s the judiciaries job to maintain the status quo not to arbitrarily change the rules after it’s already made up its mind, unless there is some clear conflict. The fundamental principle at play is if the judicial branch can flip flop arbitrarily then president is meaningless and everything can be relitigated endlessly.
Edit: There’s many sources of conflict even without changes to the law as lower courts should be self consistent but there’s independence between them. Which might seem strange but creates some redundancy as consistent rulings reinforce precedent while conflicting rulings invite intervention by a higher court.
Sure, but that’s not an inherent issue. If things are arbitrary and you decide based on a coin flip then the coin flip needs to be binding or you just keep flipping coins.
There’s many other systems we could use, but existing case law has the benefit of being extremely detailed. If navigable waterways in your state is public land, what happens after a dam is installed and they’re no longer navigable? That’s the kind of thing you want to find out before you buy some property.
An issue down to coin flips should be seen as a signal of a bug. However, I would argue that more often than not, it's not actually down to a coin flip. There is a default position in a liberal society, and that is that of minimal authority. Every legal question is fundamentally one of "does the state have the authority to do this, and if so, at what level?" If the answer is unclear, this should always resolve to no, or if yes, at the most localized level specified.
I edited the above comment for clarity so I don’t know if you saw it, but the benefit is allowing people to make decisions without court cases.
Most legal questions aren’t about state power but what exactly the rule is. Contracts are a huge area that has little to do with the state. Even when stuff involves the state people want to know the legal/liability/tax implications of doing X vs Y before doing something.
Ie: Do I need a permit to build an outdoor pizza oven? It doesn’t matter how arbitrarily the rule was created, you just want to know the rule and often the penalty for breaking it. Laws often use vague terms like “reasonable.” So, WTF is does “reasonable speed under the circumstances” actually mean in say light rain, well chances are someone found out …
Right, and the judiciary has 45 years of precedent that the wetlands are included. This radicalized illegitmate SCOTUS just threw out the protections because their corporate owners benefit from it.
The whole point of a supreme court is to set precedent, as they have with many other decisions that you probably like, like Brown v. Board of Education and Obergefell v. Hodges.
Besides, laws matter. If you want something done, you have to pass a law. If you don't have the votes, then go do the work and convince more people to vote with you.
Edit: it actually wasn't set precedent from the supreme court anyway. The previous decision was split and was sent back down to the lower court, before being settled:
Our laws are supposed to be interpreted via precedent. We are not a fly by night French civil system. Our legal traditions are rooted in maintaining centuries of stability within the law, altering those interpretations only in accordance with new laws.
If the courts cannot be expected to consistently interpret the law, how can citizens be sure what that law means?
To turn over fifty years of precedent on a whim is certainly within the power of the supreme court, but only in the same manner that doing a poor job of running the federal government is within the powers of the executive.
There is nothing to stop them from doing their job poorly, because they are themselves the ones responsible for setting and maintaining high standards.
This seems to be a sort of "gotcha" question, wherein you pose points of precedent breaking for which I am likely to support the outcome but not the process.
And you are right.
I absolutely support both same-sex marriage and the casting out of the vile separate-but-equal doctrine.
And I think both would have been better done as legislation.
When the supreme court struck down 50 years of precedent supporting the right of women to use abortion as a tool in reasonably controlling whether they would choose to go through the dangers of pregnancy, they showed precedent alone is not a dependable bulwark for the rights of the citizenry.
I also admit I find it far more reasonable for the courts to expand rights and protections than I do seeing it strip them away.
You might argue this is an expansion of rights for those that would prefer to be unhindered by regulatory oversight while destroying, polluting and mismanaging the wetlands now under their control, and I suppose it is. Though I doubt any good will come of it.
> In the South Seas there is a cargo cult of people. During the war they saw airplanes land with lots of good materials, and they want the same thing to happen now. So they've arranged to imitate things like runways, to put fires along the sides of the runways, to make a wooden hut for a man to sit in, with two wooden pieces on his head like headphones and bars of bamboo sticking out like antennas—he's the controller—and they wait for the airplanes to land. They're doing everything right. The form is perfect. It looks exactly the way it looked before. But it doesn't work. No airplanes land. So I call these things cargo cult science, because they follow all the apparent precepts and forms of scientific investigation, but they're missing something essential, because the planes don't land.
You don't get democracy for participating in a voting ritual. You don't get justice for just following precedent. These things are a summation of the beliefs, norms, and actions of a society as a whole.
It is myopic to frame the conversation around precedence or individual cases. When you frame the conversation around justice, it becomes clear why it's OK to break precedence to protect rights granted by nature, but not OK to break precedence to enrich some business that pollutes the environment.
Here is one of our great founding father's (Thomas Paine) take on justice:
> Man, with respect to all those matters, is more a creature of consistency than he is aware, or than governments would wish him to believe. All the great laws of society are laws of nature. Those of trade and commerce, whether with respect to the intercourse of individuals or of nations, are laws of mutual and reciprocal interest. They are followed and obeyed, because it is the interest of the parties so to do, and not on account of any formal laws their governments may impose or interpose.
> But how often is the natural propensity to society disturbed or destroyed by the operations of government! When the latter, instead of being ingrafted on the principles of the former, assumes to exist for itself, and acts by partialities of favour and oppression, it becomes the cause of the mischiefs it ought to prevent.
Our government was acting on behalf of the citizens with brown and obergafell and is acting on behalf of corrupt individuals with citizens united, this, the overturns, or any other number of things our federalist society junta is doing.
So when the court operates on behalf of the weak and oppressed it is fulfilling it's purpose, but when it operates on behalf of the powerful and corrupt, it is denigrating the institution it claims to be and spitting in the very face of justice and crushing the idea of rule of law.
Brown and Obergefell each overruled prior Supreme Court precedent. Brown overruled several decisions, including Plessy (itself one of the most asinine decisions in history).
This is very misleading - the regulatory changes introduced by the ruling were 5-4 along ideological lines, even though the judgement in favor of the Sacketts was unanimous. In the case this year:
> The court voted unanimously to reverse the Ninth Circuit, but split 5–4 on the rationale. The majority opinion, by Alito, introduced a new test to define wetlands, which reversed five decades of EPA rule-making and limited the scope of the Clean Water Act's authority to regulate waters of the United States. Justice Brett Kavanaugh joined the three liberal justices in agreeing that the CWA did not apply to the Sacketts' property, but argued that the majority's new definition was incorrect and will have significant effects on regulated waters.
You use the term "This radicalized illegitimate SCOTUS" but you realize that the court was unanimous that the EPA had overstepped its authority under the law right?
I'm sorry, did you not read past the ad break? The very next paragraph is about four dissenters taking issue with the wetlands definition:
> Justice Brett Kavanaugh, joined by the court's three liberal members, disputed Alito's reading of the statute, noting that since 1977 when the CWA was amended to include adjacent wetlands, eight consecutive presidential administrations, Republican and Democratic, have interpreted the law to cover wetlands that the court has now excluded. Kavanaugh said that by narrowing the act to cover only adjoining wetlands, the court's new test will have quote "significant repercussions for water quality and flood control throughout the United States."
What is this 45-year-old precedent of which you speak? The CWA itself? It's worth noting that the Sacketts have been wrapped up in challenging the agency decision in the courts for nearly 20 years. Regulatory agencies stretching the bounds of their authority until they come to a head in the courts is not unique to the CWA or the EPA, but is a phenomenon typical of the interplay between the Judiciary and Executive branch. A regulatory agency claiming their decisions are not subject to any judicial review is.. a position, I guess.
> Radicalized illegitimate SCOTUS
That comment seems quite radical. SCOTUS unanimously decided this case, FWIW. SCOTUS looked at the plain language of the statute, which seems like a great place to start and end the review. What has been determined to be illegitimate is the breadth of EPA's claimed authority under the law as written.
As recently as in 2006, Rapanos decided "the CWA’s use of 'waters' encompasses 'only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’"
Also:
"More recently, the agencies have engaged in a flurry of
rulemaking defining 'the waters of the United States.' In a 2015 rule, they offered a muscular approach that would subject 'the vast majority of the nation’s water feature' to a case-by-case jurisdictional analysis. Although the rule listed a few examples of 'waters' that were excluded from regulation like '[p]uddles' and 'swimming pools,' it categorically covered other waters and wetlands, including any within 1,500 feet of interstate or traditional navigable waters. And it subjected a wider range of other waters, including any within 4,000 feet of indirect tributaries of interstate or traditional navigable waters, to a case-specific determination for significant nexus.
The agencies repealed this sweeping rule in 2019. Shortly afterwards, they replaced it with a narrower definition that limited jurisdiction to traditional navigable waters and their tributaries, lakes, and 'adjacent' wetlands. They also narrowed the definition of '[a]djacent,' limiting it to wetlands that '[a]but' covered waters, are flooded by those waters, or are separated from those waters by features like berms or barriers. This rule too did not last. After granting the EPA’s voluntary motion to remand, a District Court vacated the rule."
This reminds me of how a court declared that San Diego's overgrown drainage system was a protected wetland and they had to offset it in order to dredge it out and keep a century flood from happening.
Is it truly 45 years of precedent, or has the executive slowly taken a less strict interpretation over the years, expanding what it thinks the Act gives it jurisdiction over?
I don't know why you say this doesn't "strike down" protections. Isn't this exactly what "striking down" means, in the context of the US judicial system?
Striking down usually means a law is invalidated because it is found unconstitutional. In this case, the issue was whether EPA's policy matched the language of a particular law or not, not whether that law itself was constitutional.
> if given wetlands are not connected to interstate navigable waters
How many endorheic basins do we even have in the United States? And one of the major ones, the basin of the Great Salt Lake, is clearly navigable for commerce purposes (although obviously not for "interstate" commerce, which may be what matters here).
> if they affect the water in other states, eg. through ground water flows etc. However, they will need to pass a new law to assert that
Why do we need to pass a law to assert something patently obvious to everyone? All waters are connected to major U.S. rivers except those in small endorheic basins. If some random person wants to build a house on a lake (which is a euphemism for: some major corporation wants to dump toxic waste in that lake), of course that affects all downstream waters of that lake, all the way to the ocean.
This case has been 10 years in the making. In this case the EPA threatened to fine a family that wanted to develop a plot of land in a residential subdivision up to $75,000/day. The EPA claimed that because it had not yet fined the family, it's determination that their plot of land was a protected wetland under the Clean Water Act was not subject to judicial review. So the family would have a sword of Damocles hanging over their head if they decided to develop the land, but they couldn't challenge proactively that the land they wanted to develop was not in fact a protected wetland.
The Supreme Court unanimously held that the compliance order threatening the fine was subject to judicial review, leading to the second case involving this plot of land, as to whether it was in fact a protected wetland.
Congress has been deadlocked for 12½ years (i.e. since January 2011) due to the Senate filibuster. Don't expect any meaningful¹ non-budgetary law to be passed until the filibuster² is gone.
Since Congress is in a comatose state, executive branch agencies have come to rely on Chevron deference and related doctrines, and the people on the courts to expand executive branch authority.
¹ Congress manages to pass a few non-budgetary laws that have broad³ bipartisan appeal, but this has the effect of excluding most meaningful legislation
² the repeal of which Sinema and Manchin blocked; so its repeal is contingent on Democrats winning a few more Senate seats
The current situation is not at all special or ahistorical.
Every president since the founding has probably felt tempted to become a dictator and work around congress out of frustration -- thankfully we have the court system to (usually) shut them down.
Many of the significant bills in the Wikipedia article are budgetary bills, which are not subject to the Senate filibuster.
I suspect the current Congress has not passed any meaningful non-budgetary legislation.
Some of the most important pending bills include restoring the Voting Rights Act (which was crippled by the conservative wing of the Supreme Court in the Shelby County v. Holder decision). That bill is still being blocked by the Republican party. See: https://en.wikipedia.org/wiki/John_Lewis_Voting_Rights_Act
The Voting Rights Act used to be a bill that was renewed with bipartisan support, but once the Republican party realized that the invalidation of this bill made it easier to suppress minority votes in red states, they've been opposed to its renewal.
Watersheds aren't a local resource - they're a regional resource. This decision made no sense to begin with since, for instance, Vermont acting like a bad neighbor will cause environmental devastation in Massachusetts, Connecticut and New York - water sheds very rarely stay neatly within state boundaries. This becomes an even bigger issue when you look at the Mississippi - mining in North Dakota can cause issues in Louisiana.
I do hope that states can work together to protect the environment but it does seem likely to become a partisan issue.
I forgot to mention about 5 years ago just before we sold the family farm in Central Pennsylvania. We received a notice that we had to start creating a management plan for the manure. We were in the Chesapeake watershed. The farm was sold and a hospital built on top of it all...
I'm trying to understand if the people saying "congress can just fix this" every time the supreme court makes a ruling,
a) Don't agree that congress is blocked and is never going to pass anything.
b) Care more about the legalities than the issues themselves, and so don't really care about whether there is a plausible way through congress.
c) Are making a cry for help for everyone to come together to fix congress. Hoping that if things get bad enough, people will finally wake up and get congress working again.
d) Trust that the supreme court will vote in their favour, and are just concern trolling / trying to distract their political opponents by referring to congress.
> trying to understand if the people saying "congress can just fix this" every time the supreme court makes a ruling
Because it's what the current Court is saying. They're pushing back against Chevron's deference to agency rule making.
Congress didn't say a thing, agencies wrote a rule, the courts deferred; SCOTUS is saying that last part was incorrect, the agencies never had the power to write that rule. Congress needed to do it.
The "so..." clause in (B) is irrelevant. Any solution that doesn't pass conditional muster is temporary, at best. Relying on unconstitutional measures to enact the change you want invites unfortunately measures to enact changes you don't like.
The only way to address the issue is to do so legally.
Maybe it should be an "and" instead of "so".
At least it sounds like you do believe it is possible to change things legally, as it couldn't be the only way, if it's not a way.
So maybe you're on (a)?
I think c is legitimate. Our federal institutions are breaking down due to the public’s mistrust of congress. Its a completely broken institution and both parties are relying on that fact to move toward a more culture war based platform instead of talking about policy, since everyone knows there will be no policy.
My vote is c. Though hopefully things don't get so bad that we just exclude the SCOTUS from the process. IMO that's a possibility if we continue to rely on them to be the effective source of law.
> c) Are making a cry for help for everyone to come together to fix congress. Hoping that if things get bad enough, people will finally wake up and get congress working again.
If we try to rely on the Supreme Court to fix things without fixing congress, the Supreme Court is going to become way more dysfunctional too.
e) stop complaining about the Supreme Court rulings going against their desire, and complain to Congress instead.
You have a subtext in all your options that gates all your options on what (a person thinks) should happen. For example "whether there is a plausible way through congress".
None of your options simply leave that concept entirely out. The reality of a law simply does not care on what you feel the law should be.
I see it all the time people complain "if you rule this way then xyz will happen", which is so completely irrelevant I don't see why they even mention it. A ruling is based on what IS passed not what output you want.
Legislature on the other hand is all about what SHOULD be the result.
I gladly choose option b. The rule of law is a meta-principle, and is much more important than any individual issue. Allowing arbitrary execution of authority in favor of an issue you care about is a recipe for authoritarianism.
Are we ignoring the fact that congress didn't need to fix this for the last 45 years, because the judiciary had set clear precedent on how it interpreted the law? Why would congress spend its time on bolstering the defenses of well-established laws against every potential random flip-flopping of the judiciary at any point in the future? That sounds like a tremendous waste of time, and an exercise in trying to mind-read future judges.
What's really happening here is that a wall that took years/decades to build, that everyone thought was solid, was just torn down, and everyone is saying "the masons should have just built a better wall if they cared so much. They can do so now if they choose." while the territory that the wall was protecting is being invaded. See the problem?
No they are saying the masons put the wall in a different place than where they planned. And then labeled the wall with the mistaken location, so everyone believed the label.
Until someone checked and realized the wall was not where it claimed to be.
If the wetlands described don't fall under constitutional "Navigable Waterways" (via CWAs language "Waters of the US"), then congress does NOT have the constitutional authority to regulate it.
Congress basically has all the power. They could just tell SCOTUS to piss off. Maybe that's why so many people are happy to see the gridlock and dysfunction. Heaven help us if too many congresspeople really agree on something.
> Congress basically has all the power. They could just tell SCOTUS to piss off.
No? If SCOTUS says a law is unconstitutional, you’re either in amendment territory, or the complete collapse of the American system if Congress and the Executive ignore them.
Who gave SCOTUS the power of judicial review? SCOTUS did. Not the Constitution. In fact, the Constitution grants Congress wide ranging power over the court. The idea that the three branches are co-equal is a popular myth. Congress definitely has more power than either the executive or the judicial branch. Which of course is exactly what you'd expect given that the power of the people is manifested primarily through the legislature.
If Congress wants, they can write legislation and then simultaneously exclude it from judicial review.
I'm all for protecting true wetlands, but I'm aware of a specific instance in my county where a 'wetland' is nonsense. My friend owns rural property that was once mined for coal (not surface mining). He has sinkholes on his property from the former mine shafts. There is a sinkhole that straddles his property line with his neighbor and this sinkhole is from a former mine shaft. The sinkhole has never been filled in and being a low spot collects water. The state's railroad commission who has done some sinkhole mitigation work won't touch it because it's been classified as a wetland. Asinine.
Cattlemen sometimes construct ponds to provide water for their cattle. Is the pond a wetland? Suppose the rancher sells off his herd. Should he be required to keep the pond that has now become a breeding ground for mosquitoes?
Reasonable people can debate weather or not a sinkhole filled with water is a wetland. The EPA overstretched it’s authority and calls these things navigable waterways and that’s what this lawsuit is about.
So if someone went in city, dug hole in middle of road. Filled it with water. And someone came said, oh there is water this must now be wetland. And then stop everything? Would that be fine?
In my job, I’ve gotten some pretty detailed experience with this part of the Clean Water Act.
Not mentioned in this article is the fact that the “substantial nexus” standard just rejected by the Supreme Court was ridiculously vague, and the process by which landowners could determine whether there existed a “substantial nexus” between wet-ish areas on their property and navigable waterways was ridiculously slow and uncertain. (But with potentially huge civil and even criminal penalties to those who guessed wrong.)
The process, in recent years: first you hire an specialized wetlands consulting firm whom you pay many thousands of dollars to compile a document that argues, in highly technical language, that no substantial nexus exists. You submit this “Request for Jurisdictional Determination”, which may run more than 100 pages long, to the Army Corps of Engineers. They respond whenever they get around to it. Maybe six months later you get an answer. More often than not, they claim jurisdiction, and then you have to file for an Army Corps dredge/fill permit that might take another six months to be issued.
Note that complaining about this painful process doesn’t imply a belief that waterways shouldn’t be protected. There are other land use restrictions (think: local zoning restrictions or FEMA flood plain building code restrictions) that are often very stringent, but at least their application is CLEAR. In most cases, a property owner or prospective buyer can determine the property’s zoning and flood plain status in five minutes by examining the relevant maps online.
No such clarity has existed regarding the location of Waters of the United States under the CWA. Hopefully this ruling will lead to a more clear-cut situation.
It’s easy to bash big government but a well-funded agencies (like the USGS?) should be responsible for bringing clarity to things like this through surveys and research. Unfortunately, I am
not sure either party truly believes in funding well-ran professional agencies to serve the people (for different reasons)
As much as I love protecting wetlands generally, I am personally familiar with the extent to which they can apply unreasonably. I wouldn't be surprised if much of these wetlands were in fact "wetlands".
In any case, if the EPA can no longer protect land that Congress hadn't actually authorized it to protect, then let's get something in Congress that better fits the bill.
Congress specifically wrote the law to protect wetlands. The issue of "wetlands" as you put it actually came up while congress was drafting the laws, and congress specifically wrote the law to cover them. The Supreme Court just ignored this because it felt like it.
> issue of "wetlands" as you put it actually came up while congress was drafting the laws, and congress specifically wrote the law to cover them. The Supreme Court just ignored this because it felt like it
This is a bad reading of the opinion. Wetlands were broadly undefined in statute.
Statutes are frequently written in vague terms with the intent of having the executive branch make a reasonable interpretation, e.g. the rule-making body says "The park shall be kept clean and well maintained," and the executive branch comes up with their interpretation.
Problems can arise when people with wealth and money at stake take issue with the executive branch's interpretation. They can do things like take judges on vacations, get into beneficial financial transactions with them, and do expensive favors for them or their family members. Then, when those people end up with cases before the Supreme Court, because there are absolutely no enforceable ethics rules, the justices conveniently discover that there are principles at stake.
> Statutes are frequently written in vague terms with the intent of having the executive branch make a reasonable interpretation
Page 6 of the Opinion [1] does a good job summarizing what Congress wrote, what it meant at the time, how it was amended by the courts and agencies over the years, and how it's changed since 2015. Nothing appears to be corruptly constructed.
The Act includes all sorts of wording, like "it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water", "eliminating the pollution of the navigable waters and ground waters and improving the sanity condition of surface and underground waters", and "within all or part of a watershed or river basin".
Here, Congress said they were regulating the “navigable waters.” If they wanted to regulate wetlands, they should have said so in the text of the law. Congress didn’t say they wanted to regulate wetlands in the text of the law.
They didn’t say navigatable waters, that was in the original wording and it was specifically changed to protect wetlands. That is what they were discussing at the time
Honestly the mistake of the original law was to limit it only to "navigable" waters, because the land does not have two different water systems. Most water ends up in a navigable body at some point. If someone is dumping mine tailings in a river but is told to stop so they switch to dumping them in the creek that feeds the river then nothing has been solved.
Law was written well, Supreme Court has drastically overstepped its bounds to make policy by fiat.
Sounds like you agree with this, but think about when the pendulum swings back and the freedoms you enjoy are now infringed upon by unelected, unaccountable justices that don’t GAF about the will of the the people.
I think it's important to point out that wetlands and floodplains are a major part of what protects your home from flooding, and aren't just a simple nature reserve.
A wetland acts like a big sponge. A massive rainstorm drops a pile of water, and it absorbs into the wetland. It releases slowly. It's a buffer for water.
This means your infrastructure for moving the water through, past, around the city and urban areas can be smaller, since they don't need to handle so much water as once. Or that they can handle a larger rainstorm.
You want a wetland or ten upstream of your home. They are low cost to maintain, and provide a lot of value.
Source: my brilliant wife is one of Ontario's top municipal engineers on this topic and you can learn a lot just by asking "how was work" every night for 15 years.
> Last month, a U.S. Supreme Court decision struck down federal protections for wetlands covering tens of millions of acres across the country, leaving no regulation of those areas in nearly half the states.
Is this even true? I thought they only limited the definition of adjacent to a surface connection.
It also makes it impossible for someone to decide ex ante if their property is a wetland, a problem with the current process SCOTUS called out. Namely, the government wouldn’t tell you if your property was a wetland until after it thought you’d violated the law.
I can look up a map of what the State and Federal government consider a wetland on my property. If I need to do eg construction within 100 feet of such an area on the map, I'm supposed to call in the local DEC and they -- for free -- come in and tell me the boundaries of the wetland based on local vegetation.
The Army Corps of Engineers "controls permits for the discharge of dredged or fill material into covered waters... The costs of obtaining such a permit are 'significant,' and both agencies have admitted that 'the permitting process can be arduous, expensive, and long.' ...Success is also far from guaranteed, as the Corps has asserted discretion to grant or deny permits based on a long, nonexclusive list of factors..."
The fact that "agencies never defined exactly what they regarded as the 'full extent of their authority," instead encouaraging "local field agents to make decisions on a case-by-case basis" is specifically called out.
"What are landowners to do if they want to build on their property? The EPA recommends asking the Corps for a jurisdictional determination, which is a written decision on whether a particular site contains covered waters. But the Corps maintains that it has no obligation to provide jurisdictional determinations, and it has already begun announcing exceptions to the legal effect of some previous determinations."
This quote is just stupid: "Where the Supreme Court is tying the hands of the federal government". Congress could, if they actually wanted to, pass a law that would regulate these lands.
All the the Supreme Court did is rule that, at least so far, congress has not done so.
And yet somehow this is the Supreme Court's fault.
Congress did in fact change the law to specify that those areas were regulated. In the past. After the last time people complained that it should only be surface connections they changed the law to make it more explicit that was not the intent. The Supreme Court completely ignored that.
The Clean Water Act was amended in in 1977 to add the phrase "adjacent wetlands" specifically because of contention on this point. This was after the Army Corps of Engineers and the EPA had fought and settled into an agreement on definitions and policy stemming the previous version and that understanding was known and referenced by congress during argument. The congressional research document which traces the history of this has already been linked on this post but I'll reiterate it here: https://crsreports.congress.gov/product/pdf/R/R44585
If you want to jump straight to the punchline, this is from the section on United States v. Riverside Bayview Homes, Inc in which the Supreme Court made clear that they were aware of this context and informed their ruling taking it into account:
The Court also cited legislative history from the passage of the Clean Water Act and the
amendments in 1977—in which the term “adjacent wetlands” was added to the statute107—as
support for its conclusion that Congress intended for the Clean Water Act to have a broad
jurisdictional reach which included the adjacent wetlands at issue.108 In concluding that adjacent
wetlands could reasonably be covered, however, the Court also emphasized that it did not express
any opinion on the Corps’ authority to regulate discharges of fill material into wetlands that are
not adjacent to bodies of open water.109
Congress passed the Clean Water Act which literally included "estuarine zones". The Supreme Court cynically said Congress hadn't meant wetlands with that synonym. So yeah, the Supreme Court or Alito, Roberts, Thomas, Gorsuch and Barrett are at fault.
BTW, the opinion literally quotes the term "estuarine waters" which is a phrase never used in the Clean Water Act. Basically, the majority opinion is lying.
>> the opinion literally quotes the term "estuarine waters" which is a phrase never used in the Clean Water Act
The opinion cites §1330(g)(4)(C)(vii) ("estuarine waters"), looks like that is from an amendment to the Federal Water Pollution Control Act (which is the official name for the Clean Water Act), https://www.govinfo.gov/bulkdata/PLAW/114/public/PLAW-114pub...:
"To amend the Federal Water Pollution Control Act to reauthorize the National Estuary Program, and for other purposes"
...
"(vii) low dissolved oxygen conditions in estuarine waters and related nutrient management."
In Braiding Sweetgrass, Kimmerer waxes poetic about the pharmacopia contained in marsh plants. Cattails alone have a ton of stuff going on. If you live in anaerobic rot your whole life you gotta have some good anti-microbials going on. It's practically the aloe vera of wetlands. Or maybe aloe vera is the cattails of drylands.
There's a lot of other reasons to protect wetlands. The tiny little one I was involved with was the water fountain for all of the local pollinators. Water access in the middle of the summer in the PNW is a serious challenge. It was one of the first times I encountered bees and wasps who were too busy doing their thing to even care that I was there.
I don't understand how the Supreme Court came up with this "continuous surface connection" definition. Can they just make up such definitions on their own?
It’s from the law. The EPA is the one that made up the definition of wetlands to include ones that weren’t navigable as required by the law.
But yes, they can just make up definitions if they want. The NYC may issue gun law case from last year had that with the infamous “historical tradition of firearm regulation” ruling. We have a common law system which means that judicial rulings from federal appellate courts are law in their jurisdiction. The only thing stopping them I guess is the fear of another Andrew Jackson deciding they’re illegitimate and ignoring them.
Perhaps this is a good thing? The state governments are closer to the "problem", and likely know better than the federal government what is best for their lands. (See US Constitution -- 10th Amendment.)
Which states? State-level corruption varies widely in mining and extraction from obsequious duplicity to open full-service facilitation. This is all about money from the climate-change denial, omnicidal fools who believe an unlivable planet would still be survivable with a pile of money.
Seeing the wetlands in Iowa disappear over my life has been horrible. Marsh areas I used to go as a kid are nearly dried up. Nearly everyone regards farming as more important than our natural biodiversity, and it's very disheartening.
I don't like this at all. We need a gov that proactively protects these things we'll only have once. We cannot suffer the changing opinions of even supreme court justices. Whether I believe in the legitimacy of this decision or not, we will only have these lands once. We cannot invest in the time scale to create them from scratch. It just won't happen with the lack of unity governing a country of this size, especially when some over-represented minorities want to actively harm our natural resources. We keep destroying entire ecosystems. We'll never fully appreciate what John Muir and Teddy Roosevelt did for national parks, for example.
I fear these lands will just become bargain chips, held hostage, to push through terrible interests elsewhere.
The title is kinda deceptive in that those lands weren't under federal protection until relatively recently when the EPA claimed jurisdiction over all lands which occasionally touched something that was wet.
I suppose it’s open to interpretation whether that is deceptive. It seems like it’s accurate even if there is other context. Personally I’m in favor of pretty broad federal land protections.
Same here. Especially as the alternative of waiting for damage to be done has historically meant that the water is entirely undrinkable for generations and the mining or oil company has bankrupted itself and the owners have skipped town.
>Personally I’m in favor of pretty broad federal land protections.
I'm generally in favor of broader protections than the Court permitted with this decision. However, determining what policies are appropriate is simply not in the remit of the Court. SCOTUS determines what the law says, not what it should say.
This is simply not true. The Obama administration passed new rules in 2015, but the courts issued an injunction and they never took force. Then the Trump administration then passed new rules in 2020, which were overturned by the courts the next year. Finally, the Biden administration reset to rules to what they were before 2015. Sackett v. EPA was regarding those older rules.
Furthermore, the Supreme Court ruling in that case invalidates every interpretation of the CWA that both EPA and the US Army Corp of Engineers have had going back to it's inception in 1972.
Well, it's not automated. But we must all remember that as software engineers we are not trained in the law and so, before we argue for US wetlands to receive federal protection, we should first let the experts, who have experience, training, and credentials decide.
Land use is a complex and nuanced subject and before you argue for one way or the other, perhaps you should listen to the experts. Remember, people can die in isolated wetlands so the appropriate regulatory authorities should make the decisions.
Ya but it doesn't seem particularly useful or insightful when you are commenting this on every single post that comes up every single time. Like seriously you've been doing this for weeks.
US law does not function like this. Federal agencies are authorized to operate under authorizing law passed through Congress. A president can only direct an agency to allocate resources to do something under existing law (Executive Orders are not new law, they are instructing an agency to enforce or not enforce existing law). Agencies are given some latitude in how to create Rules that function under the authorizing Law, but they aren't Law.
If the Supreme Court says they don't have authorization under an existing law, Congress needs to pass new law that authorizes them to regulate it. President cannot direct them to write a rule to cover a condition it is not authorized to cover.
This issue also gets a bit more complicated since states could also file suit and escalate to the supreme court again that federal government should not have powers to regulate certain bodies of water inside the states. I don't know how this ruling will affect any new legislation that may get passed.
This is perfectly reasonable if you look at the original law and intent behind it, and the wetlands the federal agency no longer can claim control over. The original law was passed to protect the “navigable waters of the United States”. The agency claimed that wetlands around random creek flowing into a lake are covered, because there is a “significant nexus” between it and some navigable waters, somewhere. If you disagreed, tough luck, your best option was to appeal to the same agency, making it both judge and prosecutor in the same case, and in any case is not a practical option for a random person without deep pockets, who just want to build a house on a lake.
The ruling said that when the law says it applies to navigable waters of United States, you can apply it only to waters or wetlands that actually are navigable for purposes of interstate commerce, or are so connected to these waters to be practically indistinguishable. This is perfectly reasonable: if given wetlands are not connected to interstate navigable waters, why should they be under federal jurisdiction in the first place, especially given the plain language of the relevant law? If the state wants to protect its own waters and wetlands, it’s certainly free to do so.
Now, I believe that federal government could actually argue that the random wetlands actually can be under its jurisdiction, if they affect the water in other states, eg. through ground water flows etc. However, they will need to pass a new law to assert that, instead of leaning on old law that clearly did not mean to cover this.