"Climb the mountains and get their good tidings. Nature’s
peace will flow into you as sunshine flows into trees.
The winds will blow their own freshness into you, and the storms
their energy, while cares will drop off like autumn leaves."

— John Muir


Wetlands Politics: Justice Scalia’s "Transitory Puddles"
By Dave Gibson

Vernal pool adjacent to development activity. Photo © Dave Gibson


I feel a connection with the late Justice Antonin Scalia, albeit indirect. He had strengths, but an environmental and land ethic, because they were not enshrined in the U.S. Constitution, seemed irrelevant to the Justice. Just before he died, he joined the majority in putting a stay on the the Environmental Protection Agency’s clean power regulation and thus called into question American climate commitments made in Paris. But my story is local, not global.

Some years ago, the U.S. Army Corps of Engineers (ACOE) was involved in determining whether small, one-eighth acre, biologically active wetlands near our home that dry up in the summer, known as vernal pools, were worth protecting under the federal Clean Water Act’s Section 404 program. A developer wanted to build 18 homes – outside of the Adirondack Park – abutting ours that would directly impact the red maple swamp forest in which the pools lay.

The Corps’ wetland specialist influenced by a key Supreme Court decision that same year, ultimately deemed the pools “isolated” with “no nexus to federal waters of the United States” and wrote to the town planning board that it would not subject the developer’s application to further review. We (and other near neighbors) sued the town for lack of a full environmental impact study, to no avail. The homes are still being built. Over time, the vernal pool where wood frogs have bred each April for decades and lying just 25 feet from the subdivision road will be degraded or destroyed.

Later, I learned from Adirondack Wild’s expert witness in the Adirondack Club and Resort hearing, Dr. Michael Klemens, that in order to survive the rest of the year, wood frogs, spotted salamanders and other amphibians require a significant wooded buffer around their breeding pools. To maintain its biological productivity, 75% of the circumference around a vernal pool must remain intact woodland, out 600-750 feet beyond the pool.

Where did “isolated” wetlands with “no nexus to federal waters” come from? It came from a June, 2006 ruling of the U.S. Supreme Court, with the majority opinion written by the late Justice Scalia. It muddied the waters of federal wetland protection.

The late Justice’s obituary no doubt cited very consequential decisions, such as Bush v. Gore, and the Citizens United case. But when I think of  Justice Scalia, I think of Rapanos v. United States.

In Rapanos, Justice Scalia and three others, including Chief Justice Roberts, ruled that the State of Michigan and the lower federal courts had trespassed beyond the bounds of earlier court decisions and what the Clean Water Act permits in the protection of wetlands. Justice Scalia wrote scathingly of the Army Corps of Engineers’s jurisdiction over “ephemeral channels and drains,” “transitory puddles” and “ephemeral flows.” The Justice interpreted the 1972 Clean Water Act as drawing a hard line around the permanent lakes, ponds, rivers and streams of the U.S. He claimed that unless a wetland maintains a “continuous surface connection” that makes it “indistinguishable” from a permanent body of water, it is not a wetland subject to federal jurisdiction. Unfortunately, the earth does not respect such bright lines.

Scalia sought to deny federal jurisdiction over millions of acres of prairie potholes, the breeding grounds for North America’s ducks; vernal pools where our amphibians breed; and millions of smaller wetlands that may have all sorts of invisible, below ground “connections” hydrological, ecological and otherwise, but do not have a “continuous surface connection” with a permanent body of water.

In his version of strict construction of the Clean Water Act, Justice Scalia also gave the green light to developers like Rapanos, who filled in more than fifty acres of wetlands in three different drainages in trying to construct shopping centers, contemptuously ignoring stop-work orders by the State of Michigan and U.S. Environmental Protection Agency.  This developer aggressively pursued, like so many, his bottom line and to hell with wetlands, downstream landowners and Lake Huron. His “free market” approach aligned with Justice Scali’s, as have so many others.

In reading the Rapanos decision, it becomes apparent that what Justice Scalia really couldn’t tolerate is much of any federal jurisdiction over states in land use. Scalia’s argumentation was typically brilliant, but his analysis was shallow when it came to interpretation of the Clean Water Act. Four other justices, led by Justice Souter, dissented, arguing it was necessary under the Clean Water Act for the Army Corps of Engineers and the EPA to exercise discretion and judgment in federal jurisdiction of wetlands, which are in any way adjacent to permanent waters of the US. The protection of these adjacent wetlands, whether or not they have a continuous surface connection with water bodies, directly addresses the congressional concern for protection of water quality and aquatic ecosystems expressed in the Clean Water Act.  In their dissent, these justices pointed to congressional concerns in the CWA for wetland aquatic habitats, attenuation of floodwaters by wetlands, removal of sediment and toxic materials by wetlands and other economic values wetlands perform every day at no cost to the public at large.

It was left to Justice Kennedy to break the complex 4-4 ruling. He ruled with Justice Scalia in remanding the Rapanos case back to the Michigan courts and in finding that the Army Corps of Engineers/EPA had an overly broad wetlands jurisdiction. But he sided with Justice Souter in also finding that the Army Corps of Engineers/EPA had to exercise agency judgment about jurisdiction of wetlands that might not exhibit a permanent surface connection with water bodies of the US.

Therefore, Justice Kennedy held that federal jurisdiction over wetlands must establish a “significant nexus” between the wetland and the water body, including chemical, physical and biological integrity of the water body. While that may sound pretty good, Justice Kennedy left it up to the Army Corps of Engineers and EPA to determine “significant nexus” on a case by case basis for thousands of difficult, often politically challenging permit decisions.

Army Corps of Engineers biologists have to stick their necks out, time and again, to justify to their superiors a “significant” nexus between a wetland and a water body. Many small wetlands under development pressure, like those near our home, will ultimately be determined as non-jurisdictional to the Army Corps of Engineers, and be filled or degraded by development sited far too close. Many small state natural resource agencies depend on the Army Corps of Engineers/EPA to delineate wetlands and to protect their state interests in wetland protection. Those state interests were also the losers under the Rapanos case. Our own NYS DEC only regulates wetlands which are 2.5 hectares (12.4 acres) or larger. Efforts to expand DEC wetland protection have stalled for decades in the NYS Senate.

Fortunately, in the Adirondack Park the Adirondack Park Agency also has permit jurisdiction over impacts to freshwater wetlands of practically any size.

So what to do if you are an environmentally concerned person working to protect wetlands and wondering where President George H.W. Bush’s 1989 pledge of “no net loss” of wetlands ever went?

Don’t stop writing and speaking out. If you’re working to protect a wetland smaller than 12.4 acres in New York State, keep the Adirondack Park Agency in Ray Brook and your local Army Corps biologist informed. The Army Corps of Engineers Regulatory Permits Office is in Troy, NY. Our local Corps biologists really do know and care deeply about wetland functions and values. They simply are in a tight place. So are the amphibians breeding in those vernal pools. The late Justice Scalia made that tight place much tighter.

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02/17/16 Wetlands Politics: Justice Scalia’s "Transitory Puddles" read more >
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The mission of Adirondack Wild: Friends of the Forest Preserve is to advance New York’s ‘Forever Wild’ legacy and Forest Preserve policies in the Adirondack and Catskill Parks, and promote public and private land stewardship that is consistent with wild land values through education, advocacy and research.

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