OPINION: Calm down about court decision: Wetlands aren’t threatened

Oh no. Witness the screaming, the caterwauling, the hairpulling, the gnashing of teeth, the horror and anguish that the waters of the U.S. now will be unprotected because the Supreme Court ruled in favor of an Idaho couple instead of the Environmental Protection Agency.

“The Supreme Court has ignored the science and imposed its own definition of wetlands,” according to the claims of the environmental activists. The court’s “continuous surface connection departs from the statutory text, from 45 years of consistent agency practice,” and the majority “substitutes its own ideas about policy making for Congress’” in opinions by Supreme Court Justices Brett Kavanaugh and Elena Kagan.

Well, not quite.

Calm down and take a deep breath. The wetlands aren’t in dire peril. They’ll still be protected by state and federal laws, and the Clean Water Act will return to the original structure that Congress passed in 1972. What the Supreme Court did in the Sackett v. EPA decision was to rein in the decadeslong bureaucratic overreach of the EPA and the Army Corps of Engineers when it comes to their enforcement of the CWA.

And it was way past time for them to do exactly that.

When the CWA was passed in 1972, it dealt with historically recognized “navigable waters” and “waters of the United States.”

These definitions encompassed interstate waters that are “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographical features’ ” that are described in ordinary parlance as “streams, oceans, rivers, and lakes.” These are the waters that fell under EPA and Army Corps jurisdiction.

Section 5 of the 1977 revision of the CWA, Public Law 95-217, deals with state jurisdiction, and contains the following text: “It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this Act. ... Federal agencies shall cooperate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources.”

It was clearly Congress’ direction that the lakes, ponds, rivers, creeks and wetlands completely within a state would be managed by that state’s agencies.

The EPA and, to a lesser extent, the Army Corps of Engineers, got greedy.

In United States v. Riverside Bayview Homes Inc., the Supreme Court correctly found that the Army Corps’ interpretation of the CWA, which included wetlands in navigable waters, was reasonable. The court confirmed that “navigable water” applied to wetlands that were directly connected or contiguous to navigable waters that are waters of the United States.

Right after that ruling, the EPA and Army Corps issued the “migratory bird rule,” extending CWA jurisdiction to any waters or wetlands that “are or would be used as a habitat” by migratory birds or endangered species.

That usurpation of state authority was overturned in the Supreme Court case, “Solid Waste Agency of Northern Cook County v. Army Corps of Engineers,” in which the court found that ponds totally within the state of Illinois did not constitute a “navigable water” and so therefore were not a WOTUS under EPA or Army Corps jurisdiction.

The agencies ignored the ruling and instructed their field agents to determine the range of the CWA’s authority case by case.

Using this nonscientific approach, they determined within a few years that they had jurisdiction over enough “waters of the United States” to cover 270 million to 300 million acres of wetlands. And according to the Supreme Court plurality opinion in Rapanos v. U.S., this jurisdiction extended to “virtually any parcel of land containing a channel or conduit ... through which rainwater or drainage may occasionally or intermittently flow.”

The Rapanos case introduced Justice Anthony Kennedy’s opinion in which he wrote that CWA jurisdiction over adjacent wetlands requires a “significant nexus” between the wetland and its adjacent navigable waters.

Armed with this “significant nexus” criteria, the EPA went on a tear and pretty much determined that it had authority over all the waters, intra- and interstate, within the U.S. They were allowed to get away with this for the past several decades and through several administrations, establishing the precedents that justices Kavanaugh and Kagan reference.

Now the problems are that:

There is no definition, scientific or otherwise, that determines what a “significant nexus” is. To the EPA, it was whatever they wanted it to be according to whatever criteria they developed.

Also, their claim of authority over all intrastate waters directly contradicts Section 5 of the CWA passed by Congress.

Which brings us to the Sackett court case.

The Supreme Court ruled in a 9-0 decision that the EPA did not have jurisdiction over the Sackett property since it wasn’t a wetland and was not directly connected to a WOTUS. The majority opinion in the case states that wetlands have to have a direct adjoining connection to a WOTUS in order to qualify as a wetland that would come under EPA or Army Corps authority. That standard is what is causing all the uproar within the environmental community.

Justices Kavanaugh and Kagan disagree with that wetland definition. They rely on a one-time, obscure reference in Section 67.F.2.g.1 in the 1977 CWA revision that mentions “wetlands adjacent thereto” to make their case that Congress intended all wetlands close to “navigable waters” be subject to federal control.

They ignored completely the 2002 CWA revision that several times, quite prominently, specifies and confines itself to “navigable waters, waters of the contiguous zone and the ocean.”

They also ignored that the past “45 years of consistent agency practice” was done in violation of the state’s role in enforcing the CWA.

Contrary to the hysterical claims of the agenda-driven Associated Press, Washington Post syndicated columnist Ruth Marcus and the national environmental organizations, the adjacent wetlands of the Mississippi River, Chesapeake Bay and elsewhere aren’t going to be filled in. They will now come under state protection, which is what the CWA originally intended.

Now, hopefully, the EPA will get a clue this time about the extent of its authority. Unfortunately, we can’t count on it.

Hassoldt is a field forester who lives in Kendrick.