Notable Quotes from Sackett v. EPA

Notable Quotes from Sackett v. EPA

We’re almost halfway through our weekly video series “The Clean Water Act: 50 Years, 50 Facts” which tries to explain the consequential and complex environmental law in 90 second chunks accompanied by some rock and pop favorites from the ’70s and ’80s that I’ve adapted to include lyrics about environmental law.  On May 25, a major decision by the Supreme Court (Sackett v. EPA) reshaped the legal landscape, so our episodes in June will focus on Section 404 of the Clean Water Act and the definition of “waters of the United States” to give you some context.


Clean Water Act 50 Years 50 Facts Playlist

I have mixed feelings about this area of law, informed by an entry-level job at Wisconsin DNR that involved documenting wetland losses and auditing wetland fill permits.  In my opinion, decades of litigation and Congressional gridlock have resulted in some compromises which satisfy no-one: the system is confusing and expensive for developers and landowners but doesn’t do enough to protect aquatic ecosystems from “death by a thousand cuts.”  If there was a constituency for “environmental federalism”, maybe I could see a path forward, but opposition to federal environmental regulation generally goes hand in hand with opposition to environmental protection at the local and state level.  In Idaho, the Sackett’s neighborhood is one of many being built in wetlands along Priest Lake with the approval of a conservative county government.  Here in Iowa, the legislature has recently considered bills that would have limited the ability of county governments and land trusts to purchase sensitive natural areas for parks, and limited the ability of cities to regulate development for the purposes of flood control.

turtles on a log

But enough about my personal opinions, let’s talk legal opinions.  While all nine justices agreed to overturn the Circuit Court’s decision in favor of the Sacketts, four justices thought the majority went too far in limiting the scope of the Clean Water Act.   A few choice quotes from the concurring opinions in Sackett v. EPA (with legal citations removed for brevity) really help to illustrate what’s at stake.

From Justice Kavanaugh’s concurrence, joined by Justices Kagan, Sotomayor, and Jackson:

The Clean Water Act generally prohibits dumping dredged or fill material without a permit into the “waters of the United States.”  The “waters of the United States” include wetlands that are “adjacent” to waters covered by the Act—for example, wetlands that are adjacent to covered rivers or lakes.  The question in this case is whether the wetlands on the Sacketts’ residential property are adjacent to covered waters and therefore covered under the Act. 

I agree with the Court’s reversal of the Ninth Circuit. In particular, I agree with the Court’s decision not to adopt the “significant nexus” test for determining whether a wetland is covered under the Act. And I agree with the Court’s bottom-line judgment that the wetlands on the Sacketts’ property are not covered by the Act and are therefore not subject to permitting requirements.

I write separately because I respectfully disagree with the Court’s new test for assessing when wetlands are covered by the Clean Water Act. The Court concludes that wetlands are covered by the Act only when the wetlands have a “continuous surface connection” to waters of the United States—that is, when the wetlands are “adjoining” covered waters…

Oxbow wetland in Polk County

Recall again how the 1977 Act came about. In 1975, the Army Corps concluded that the 1972 Act’s coverage of “waters of the United States” included “adjacent” wetlands.  In 1977, Congress adopted a new permitting program for a category of “waters of the United States.” Congress allocated to the Federal Government exclusive authority to issue Clean Water Act permits for dumping dredged or fill material into certain “waters of the United States,” “including wetlands adjacent thereto.” … Congress’s 1977 decision was no accident. As this Court has previously recognized, “the scope of the Corps’ asserted jurisdiction over wetlands”—including the Corps’ decision to cover adjacent wetlands—“was specifically brought to Congress’ attention” in 1977, “and Congress rejected measures designed to curb the Corps’ jurisdiction.”  … 

The eight [presidential] administrations since 1977 have maintained dramatically different views of how to regulate the environment, including under the Clean Water Act. Some of those administrations promulgated very broad interpretations of adjacent wetlands. Others adopted far narrower interpretations. Yet all of those eight different administrations have recognized as a matter of law that the Clean Water Act’s coverage of adjacent wetlands means more than adjoining wetlands and also includes wetlands separated from covered waters by man-made dikes or barriers, natural river berms, beach dunes, or the like…

The difference between “adjacent” and “adjoining” in this context is not merely semantic or academic. The Court’s rewriting of “adjacent” to mean “adjoining” will matter a great deal in the real world. In particular, the Court’s new and overly narrow test may leave long-regulated and long accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority, with negative consequences for waters of the United States. For example, the Mississippi River features an extensive levee system to prevent flooding. Under the Court’s “continuous surface connection” test, the presence of those levees (the equivalent of a dike) would seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side of the levees, even though the adjacent wetlands are often an important part of the flood-control project…

The Court’s erroneous test not only will create real-world consequences for the waters of the United States, but also is sufficiently novel and vague (at least as a single standalone test) that it may create regulatory uncertainty for the Federal Government, the States, and regulated parties.  … How does that test apply to the many kinds of wetlands that typically do not have a surface water connection to a covered water year-round—for example, wetlands and waters that are connected for much of the year but not in the summer when they dry up to some extent? How “temporary” do “interruptions in surface connection” have to be for wetlands to still be covered?

Farmed wetland

From Justice Kagan’s concurring opinion, joined by Justices Sotomayor and Jackson:

[M]ake no mistake: Congress wrote the statute it meant to. The Clean Water Act was a landmark piece of environmental legislation, designed to address a problem of “crisis proportions.” …

Vital to the Clean Water Act’s project is the protection of wetlands—both those contiguous to covered waters and others nearby. As this Court (again, formerly) recognized, wetlands “serve to filter and purify water draining into adjacent bodies of water, and to slow the flow of surface runoff into lakes, rivers, and streams.”

At the same time, wetlands play a crucial part in flood control (if anything, more needed now than when the statute was enacted). And wetlands perform those functions … not only when they are touching a covered water but also when they are separated from it by a natural or artificial barrier—say, a berm or dune or dike or levee….

Prairie pothole wetland in Polk County

Today’s majority, though, believes Congress went too far.  … Congress, the majority scolds, has unleashed the EPA to regulate “swimming pools and puddles,” wreaking untold havoc on “a staggering array of landowners.”  Surely something has to be done; and who else to do it but this Court? It must rescue property owners from Congress’s too-ambitious program of pollution control.

As the majority concedes, the statute “tells us that at least some wetlands must qualify as ‘waters of the United States.’” … It relies as well on a judicially manufactured clear-statement rule. When Congress (so says the majority) exercises power “over private property”—particularly, over “land and water use”—it must adopt “exceedingly clear language.” There is, in other words, a thumb on the scale for property owners—no matter that the Act (i.e., the one Congress enacted) is all about stopping property owners from polluting.  ….

A court may, on occasion, apply a clear-statement rule to deal with statutory vagueness or ambiguity. But a court may not rewrite Congress’s plain instructions because they go further than preferred. That is what the majority does today in finding that the Clean Water Act excludes many wetlands (clearly) “adjacent” to covered waters.  …

And still more fundamentally, why ever have a thumb on the scale against the Clean Water Act’s protections? … Today’s pop-up clear-statement rule is explicable only as a reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation. It is an effort to cabin the anti-pollution actions Congress thought appropriate.  … And that, too, recalls last Term, when I remarked on special canons “magically appearing as get-out-of-text-free cards” to stop the EPA from taking the measures Congress told it to.  There, the majority’s non-textualism barred the EPA from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the Court’s appointment of itself as the national decision-maker on environmental policy….

Because that is not how I think our Government should work—more, because it is not how the Constitution thinks our Government should work—I respectfully concur in the judgment only.

What’s next for water monitoring in Iowa?

What’s next for water monitoring in Iowa?

The Kopecky family helped with water testing for our spring snapshot.

As you may know, Prairie Rivers of Iowa has been working for several years on the outreach and data analysis for a local water monitoring program that includes volunteers led by Story County Conservation and lab-testing by the City of Ames.   However, we’re not the only organization partnering with volunteers and local governments in Iowa to monitor streams and educate the public!  In the coming year we have an opportunity to get to know one another, learn from each other, and do more in partnership.  Actually, it’s already started.

In late May, Prairie Rivers organized a volunteer “snapshot” event to do same-day testing of sites throughout the Ioway Creek watershed.  On that same day, Polk County Conservation tested over 100 sites as part of their spring snapshot.  By coordinating our schedules, we can see how water quality compares across a broader swath of Iowa.  Check out the Izaak Walton League’s nationwide Nitrate Watch map, which includes some of our results!

In mid-May, I added some extra stops to my route and was able to track down the main source of fecal bacteria affecting the lower part of West Indian Creek—it looks like the new wastewater treatment plant being built in Nevada will make a big difference for water quality.  In our other creeks, the sources and solutions for E. coli are uncertain, so we’re anxious to hear what Partners of Scott County Watersheds is learning from its microbial source tracking projects in the Davenport area.

In early May, Prairie Rivers released a report analyzing the data that volunteers with Story County Conservation and the lab at the City of Ames have been collecting, including some good news!  We’re learning a lot about waters in Story County, but we’re also learning how to work with data from national and statewide databases, account for the influence of streamflow, and make pretty graphs.  The computer code, the skills, and the lessons learned are transferable, we just haven’t had an opportunity to apply them outside Story County… until now.

Our 2022 report included an analysis of nitrate trends in the South Skunk River.

Prairie Rivers applied for a grant from the Mosaic Foundation, which reached out to the Water Foundation to fund our project!  Both these foundations have an interest in “movement infrastructure”–building the capacity of the environmental movement to do more by working together.  Between now and next April, we’ll be building a network of organizations in Iowa with an interest in water monitoring, developing some tools and guidance to help us make sense of our data, and translating data into action.  The planning team includes Prairie Rivers and three other Resource Conservation and Development councils (RC&Ds), Partners of Scott County Watersheds, Polk County Conservation, Iowa Environmental Council, and the Izaak Walton League of America.

While we’re excited to see the growth of volunteer initiatives like Nitrate Watch, bimonthly monitoring with semi-quantitative test strips is not a substitute for equipment that can precisely measure nitrate in a stream every 15 minutes and immediately publish the data to the internet.  In April and May we learned that the latest state budget included targeted cuts to University of Iowa’s nitrate sensor network.  The decision has raised more than a few eyebrows, giving the impression that some legislators would rather the public not know how polluted our lakes and streams really are, or whether conservation efforts are working as expected.  Let’s keep our leaders honest and Iowans well-informed!

Highlights From the 2022 Monitoring Season

Highlights From the 2022 Monitoring Season

Our 2022 Annual Report for the Story County 10-Year Water Monitoring and Interpretation Plan shares findings from the third year of a locally-led effort to monitor water quality in streams and lakes across Story County, Iowa.

Visit here to view the full report.

Water Quality Monitoring in Story County Iowa.

The size of the volunteer program more than doubled in 2022.

  • Story County Conservation provided 40 volunteers and staff with kits to monitor 54 lakes and streams. Over 800 data sheets were entered into the Izaak Walton League’s Clean Water Hub

A coordinated volunteer event in May gave us a snapshot of water quality at over 150 sites in central Iowa.

  • Streams in Story County tended to have higher nitrate, but lower chloride and phosphate than streams in neighboring Polk County.

Volunteers observed high nitrate at many sites this year and identified some streams with poor water quality that need further attention.

  • Nitrate was as high as 20 mg/L at 74% of sites tested this year.
  • West Indian Creek in Nevada has poor water quality by several metrics—including biological monitoring, dissolved oxygen, and phosphate.
  • Chloride and phosphate are especially high during drought at sites downstream of wastewater treatment plants.

With laboratory support from the City of Ames, we now have three years of monthly data at 15 streams.  By combining multiple years of data, we can look separately at wet and dry periods and narrow down likely pollution sources and effective conservation strategies.

  • Ten out of eleven streams with enough data to evaluate in 2022 exceeded the primary contact recreation standard for coli bacteria. E. coli is especially high in West Indian Creek when water levels are normal, and in College Creek across all conditions.
  • Nitrate tends to be highest in the Headwaters of the South Skunk River watershed when water levels are normal.

 We have over 14 years of baseline data at several sites on the South Skunk River. By comparing recent data to the baseline, and making sure we’re comparing similar weather conditions, we can begin to see some encouraging trends.

  • During wetter weather, nitrate was lower in 2020-2022 than during the baseline period at one of the sites.  This could be related to conservation efforts in the Ioway Creek watershed.
  • During drier weather, E. coli was lower in 2020-2022 than during the baseline period at one of the sites.  This could be related to improvements to wastewater treatment systems in Ames and Gilbert.
Mayflies Should Be Normal

Mayflies Should Be Normal

In April, I joined a class of Ames High School seniors to survey benthic macroinvertebrates in Ioway Creek.  If you had asked me “what on earth are you doing?” here’s what I would have said:

Hello!  I’m Dan and I work on water quality for a local non-profit.  And these are environmental science students from Ames High School.  Why are we standing in the middle of the creek wearing hip waders and doing what looks like a funny dance?  Why, this is a perfectly normal thing to do! We are citizen scientists and we are “science-ing”!  The dance is called the benthic shuffle, and is an important part of the protocol for biological monitoring. We are dislodging aquatic insects from the rocks and catching them in our net.

And look at what we have caught from a mere 1 square meter of rocks! 170 mayflies! This too is normal! We are at Brookside Park, and here is a brook babbling over rocks and gravel.  It would be strange if we did not find a healthy population of mayflies in such inviting habitat!

No, they don’t look like the mayflies that spatter windshields in Dubuque. But this is indeed Baetis, the blue-winged olive mayfly, imitated with success by many a trout fisherman. In its larval form, we call it the “small minnow mayfly”, for its quick swimming. They live about a year in the creek before they pupate and get their wings, assuming a fish doesn’t eat them first!

benthic macroinvertebrates in Ioway Creek

As I was saying, what you see here is perfectly normal, though maybe not as common as it should be in Iowa streams.  If you find a riffle in the stream with no mayflies, well, that would mean something is not right. Perhaps insecticides have washed into the creek from upstream farms and lawns and killed them. Perhaps we’ve inadvertently fertilized the algae in the creek, turned the water a shade greener and the making the water a little less oxygenated at night.  There are other insects that can make a living under these conditions.  In the creek near the Story County Fairgrounds, you can find plenty of these net-spinning caddisflies, but no mayflies!  If all you find are these wriggly little midge flies, well, that’s a sign of more serious pollution.

Nice to meet you!  Time to get back to counting bugs!

Results from Ioway Creek (Ames) in 2023

Results from W. Indian Creek (Nevada) in 2022

Think Outside the HUCs

Think Outside the HUCs

“With the Nutrient Reduction Strategy approaching its 10-year anniversary in 2023, Iowans deserve to see water quality results from the nearly $100 million of public money invested since 2013.  Water monitoring is a crucial component to the success of the Nutrient Reduction Strategy and must be designed to assess progress.  A strategy without a way to evaluate progress or outcomes is not a real strategy.”

– from Iowa Environmental Council’s 2022 report:  “Water Quality Monitoring and the Water Quality Initiative

fake text message to introduce blog post

Most water monitoring programs are NOT designed to assess progress.  Often, people don’t begin monitoring in earnest until the grant funding arrives for an improvement project (or on flip side, until an industry with a reputation for pollution sets up shop in the area).  Often, they’re hoping for preliminary results when the grant wraps in 3-5 years.  I’ve been down that road, completed a horrifying statistical analysis, and left this conference poster as a warning to others: “Progress tracking is not a realistic use for typical stream monitoring approaches”.

Our local partners in Story County took this warning to heart and made a plan to sustain water monitoring for at least ten years, while shifting our focus.  We collected lab samples from more sites (less often, and with less hassle) while ramping up the volunteer program, so we could engage the public and get a baseline understanding of water bodies all around the county.  All is well and good.  But now and then I come back to the question “how would you monitor water if you were serious about assessing progress?”.

Preliminary results in 3-5 years might be feasible if you already have baseline data for comparison, and account for any big changes in weather.  The South Skunk River just upstream of Ames was monitored from 2001-2014 by the Iowa DNR, and we resumed monitoring it in 2020.  I have good news and bad news for the newly formed Headwaters of the South Skunk River WMA.

  • Good news: average nitrate concentrations over the last three years have declined 46% compared to the baseline period.  Mission accomplished?
  • Bad news: the trend goes away if you exclude samples collected during a drought when nitrate levels are at their lowest.
nitrate trend in south skunk river above Ames

Study design is key for progress tracking.  In order to be sure that water quality really changed, and to be able to link that change to something that happened in the watershed, scientists approach water monitoring like a medical trial.  To do it right, there should be a treatment group (a watershed that receives conservation funding and attention), a control group (a nearby watershed that doesn’t receive funding), a before period, and an after period.  There should be a full accounting of land management and conservation practices in both watersheds.  If the treatment group improves more than the control group, that’s a good sign the medicine works.  At the time we wrote the Story County Monitoring Plan, doing a paired watershed study of the sort that Michelle Soupir did for Black Hawk Lake didn’t make a lot of sense.

It didn’t make sense to invest in progress tracking, because our WQI-funded watershed project had come to a close, further funding was uncertain, and we couldn’t expect much improvement in water quality based on other metrics to date.  Our watershed coordinators worked really hard, we had enthusiastic partners in local government and agribusiness, and we organized some well-attended field days where we heard from inspiring early adopters of cover crops and bioreactors.  We met some farmers in the watershed who cared enough about soil and water to take a risk and try something new.  Unfortunately, at the end of four years, we had a lot of unspent cost share funds and only enough conservation practices to expect or 1 or 2 percent reduction in nitrogen and phosphorus.  Ioway Creek is a big watershed (147,000 acres).

metrics from wqi project

However, this year I was reviewing our water monitoring data and had one of those moments like when you squint at an optical illusion and suddenly see a rabbit instead of a duck.

“Hey, that looks a lot like an upstream/downstream study for tracking whether projects in the Ioway Creek watershed and the City of Ames have improved water quality!”

  • The medicine: A bunch of conservation practices were installed between 2015 and 2019, some of which address nitrogen and some of which address other pollutants. We could include Jean’s no-till fields in Hamilton County, Jeremy’s cover crops in Boone County, Gerold’s bioreactor in Boone County, the UV disinfection system in Gilbert, the permeable parking lot at Ames City Hall, the stream restoration and saturated buffer at the Tedesco Environmental Learning Corridor, and many others.
  • The treatment group: A downstream site, influenced by all those conservation practices. The South Skunk River at 265th St. has been monitored weekly by the City of Ames since 2003.  At this point the river drains 573 square miles, corresponding to the Ioway Creek watershed plus the Headwaters of the South Skunk River watershed.
  • The control group: An upstream site, not influenced by these practices. At this point, the river drains 316 square miles, corresponding to the Headwaters of the South Skunk River watershed, minus any land within Ames city limits.
  • A before period: Both sites were monitored between 2003 and 2014.
  • An after period: Both sites were monitored between 2020 and 2022.

And then I made a boxplot and squinted a little more and said, “Hey, it looks a lot like nitrate has improved at the downstream site!”  Same thing for E. coli!  Maybe there’s more to this story than just cost-share metrics.

graphs comparing nitrate at upstream and downstream sites

The analysis is described in more detail in our 2022 annual report on water monitoring in Story County.  We’ll also have some opportunities this year to talk with other groups around the state that are doing water quality monitoring and swap some tips and tricks.

Here’s one of mine. To see the “rabbit” in this data, you have to be flexible in how you think about watersheds.  A watershed is just the land area that drains to a common point.  With the right tools, we can delineate a watershed for any point of interest on the river network.  I’ve taught several classes of ninth graders how to do this.  Neither of these sites are in the Ioway Creek watershed, and they aren’t mentioned in the Watershed Plan, but that doesn’t mean they’re not relevant.  The US Geologic Survey’s system for mapping and numbering watersheds is convenient for many purposes.  But if you have access to long-term monitoring data, don’t be afraid to think outside the HUCs!