By Jake Assael
On May 31, the Supreme Court ruled unanimously against the Obama administration in Hawkes Co., Inc., v Army Corps of Engineers, siding with the plaintiff’s argument surrounding the ambiguity of the Clean Water Act. In doing so, the Court also affected the government’s ability to protect wetlands – here’s how.
The Clean Water Act regulates, “the discharge of any pollutant” into “the waters of the United States.” Waters of the United States (WOTUS) as defined in the Clean Water Rule are, “traditional navigable waters, interstate waters, all other waters that could affect interstate or foreign commerce, impoundments of waters of the United States, tributaries, the territorial seas, and adjacent wetlands.” The Act also requires landowners to apply for a permit with the Army Corps of Engineers before polluting in those waters.
Hawkes & Co, along with two other companies engaged in peat mining in Marshall County, Minnesota, sought a permit to mine peat from wetlands on their property. According to the North Carolina State University Water Quality Group, wetlands that are mined for peat are significantly modified. It involves clearing vegetation, draining the wetland, as well as adding roads and other infrastructure to mine and transport the peat.
In 2010, the company applied for a 404 permit with the Corp. In 2012 the Corp, in the midst of the permitting process, issued an approved Jurisdictional determination (JD), establishing that the property contained WOTUS. The Corp alluded to the, “significant nexus,” the wetlands had to the Red River of the North, located 120 miles away.
Under the Administrative Procedure Act, the respondents have the right to appeal an approved JD, if all other procedural efforts have been exhausted. This would be deemed final agency action. If final agency action does not occur there are no further legal steps for the respondents to take in reversing the approved JD.
Hawkes & Co made the argument to the District Court that final agency action had occurred. The District Court dismissed their appeal, but this decision was later reversed by the Court of Appeals for the Eighth Circuit, and upheld by the Supreme Court, subduing the federal government’s ability to protect wetlands on private property.
Although this ruling has broader implications for all vulnerable water habitats, coastal wetlands might be the most affected. According to the EPA, coastal wetlands are disappearing at twice the rate they are being restored, leaving coastlines vulnerable to erosion and extensive flooding. This issue is being exacerbated by the fact that 74 percent of coastal wetlands are located on private property.
In Louisiana for example, where 75% of coastal wetlands are on private property, landowners will be better able to exploit short term economic gains of wetlands via their ability to challenge federal protection of what are currently regarded as WOTUS.
Louisiana coastal wetlands account for 40% of U.S. continental wetlands, and provide protection to private property from sea-level rise in the form of erosion reduction and flood protection. Although the short term economic value of exploiting wetlands is apparent, the long term value of the ecosystem services coastal wetlands provide trump any potential short term gains. According to Weather Underground, each 2.7-mile stretch of wetlands can reduce storm surge by up to 1 foot.
Hurricane Katrina in 2005 made clear the devastating potential of storm surges, with property damage reaching heights of $75 billion – further compounded by $200 billion in economic losses.
The Supreme Court ruling has the potential to allow vital and vulnerable coastal wetlands to be degraded beyond the current unprecedented rates. With 39 percent of the nation living in coastal shoreline counties it is paramount that we come to understand the contribution of coastal wetlands to the protection and wellbeing of coastal communities or risk consequences to life and property.
For more information, please contact Jake Assael at Jake.Assael@warwickconsultants.net