8 ms·
Half of US wetlands lost federal protection. Their fate is up to the states
- senojsitruc 3y ago[flagged]
- justrealist 3y agoThe 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.
- TaylorAlexander 3y agoI 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.
- throwway120385 3y agoSame 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.
- sacrosancty 3y ago[dead]
- hoosier_daddy 3y ago[flagged]
- scythe 3y ago>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.
- deleted 3y ago[deleted]
- pavon 3y agoThis 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.
- zdragnar 3y agoAs 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.
- MarkMarine 3y agoCongress 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. https://crsreports.congress.gov/product/pdf/R/R44585 https://crsreports.congress.gov/product/pdf/R/R44585
- LastTrain 3y agoWell then they should have written the law better.
- MarkMarine 3y agoLaw 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.
- LastTrain 3y agoI don't agree with the outcome of the ruling.
- JumpCrisscross 3y ago> 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.
- ars 3y agoThis 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.
- HWR_14 3y agoCongress 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.
- justrealist 3y agoIt is simply not true that congress revised this law.
- vampirical 3y agoThe 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 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
- munk-a 3y agoWatersheds 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.
- ars 3y ago> This decision made no sense to begin with since Again, if Congress wanted to fix this, they have the authority. The decision simply said they have not yet actually done so.
- thomasahle 3y agoI'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. Let me know if I missed any other options.
- junofan 3y agob). The US government is really big and powerful, so it’s more important to me the system is working as it should than any single issue be resolved.
- zdragnar 3y agoThe "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.
- pitaj 3y ago> 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.
- HWR_14 3y agoMost wetlands are connected via subsurface connections. About half.
- throwway120385 3y agoWhich makes sense because water flows underground.
- JumpCrisscross 3y agoIt 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.
- saalweachter 3y agoIs this really the case? 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. Isn't that how it works everywhere?
- JumpCrisscross 3y ago> Is this really the case? Yes. 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. https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf
- sacrosancty 3y ago[dead]
- xyzzyz 3y agoThe 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.
- 2OEH8eoCRo0 3y ago> they will need to pass a new law to assert that Exactly. The law as written was misinterpreted. Write a new law.
- willcipriano 3y agoThey won't because their donors and friends don't want one. So all you'll get is impotent complaining about the supreme court.
- 3y ago
- renewiltord 3y ago[flagged]
- kneebonian 3y agoDo you have a script dude. You seem to have this same comment on almost every thread that has anything to do with law.
- renewiltord 3y agoWell, 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.
- kneebonian 3y agoYa 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.
- renewiltord 3y agoIt's a bit repetitive, no? I agree. Keep an eye out for it.
- VerminOctopus1 3y agoI’m not going to remember this because it’s nonsensical. Care to elaborate?
- neverartful 3y agoI'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.
- Somatochlora 3y agoSounds like a wetland to me. You can argue that artificially created wetlands shouldn't qualify for protection but that doesn't seem obvious to me.
- whythre 3y agoNow he doesn’t have to argue anything because the EPA’s broad interpretation of the law was overturned.
- tutorialmanager 3y agoReasonable 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.
- neverartful 3y agoCattlemen 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?
- Ekaros 3y agoSo 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?
- TheRealPomax 3y agoand the president because what one can take away, another can regrant. All Biden needs to do is go "actually no these are all protected again".
- joecool1029 3y agoUS 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.
- TheRealPomax 3y agoPresidential decree 100% functions like this, and has been used for things like this well before Trump brought it into the lime light.
- joecool1029 3y agoThere's no such thing in the US. You may be thinking of a Presidential Proclamation which again doesn't have the force of law unless Congress authorizes it: https://en.wikipedia.org/wiki/Presidential_proclamation_(United_States) https://en.wikipedia.org/wiki/Presidential_proclamation_(Uni...
- gman83 3y agoI 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?
- HDThoreaun 3y agoIt’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.
- debacle 3y agoSimilar to Roe v Wade, this is an unfortunate decision, but one that I agree with. Hopefully Congress will do something. Doubtful that they will.
- sacnoradhq 3y agoWhich 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.
- 015UUZn8aEvW 3y agoIn 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.
- prpl 3y agoIt’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)
- 015UUZn8aEvW 3y agoYeah, there should be maps of the boundaries of Waters of the United States just like there are FEMA maps of flood plains.
- hinkley 3y agoIn 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.
- throwaway914 3y agoI 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.
- mabbo 3y agoI 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.
- anonymousiam 3y agoPerhaps 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.) https://constitution.congress.gov/constitution/amendment-10/ https://constitution.congress.gov/constitution/amendment-10/
- PawgerZ 3y agoSeeing 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.