Uncategorized - Prairie Rivers of Iowa

How to Start Caring About Pollinators: A Guide for Iowans

by Jessica Butters | Jul 14, 2023

Now that the City of Ames has its own Pollinator Plan, we know how the city feels about Iowa’s native pollinators. But what about individual Iowans? We asked three central Iowans from vastly different backgrounds about how they 1) came to appreciate pollinators and wildlife in general, 2) what catalyzed their appreciation into action, and 3) how they stay energized and hopeful for the future of pollinators and our natural environment as a whole. Lori Biederman, Lynn Kellner, and Todd Burras share their journeys with us here.

A trout lily at Brookside Park, where Lori has spearheaded a Plant Corps with Friends of Brookside Park to remove invasive plants.

Lori Biederman – Ames, Iowa

I grew up on a 10-acre hobby farm in southern MN and both of my parents are biologists. I spent much of the summer playing outside. I was tuned into the natural world, but mostly for plants, and did not think too much about insects.

I started appreciating pollinators relatively recently. Although I have two advanced degrees in ecology, my focus has been on plants and the soil. Animals in general were just not my focus area. However, now when I’m outside working at field sites or in my garden, I like noticing the activity of birds and insects around me. This suits me as I get older and cannot move as quickly as I used to; plants don’t mind activity around them, however animals such as pollinators require sitting still and watching.

As an ecologist, my gardening philosophy aligns with my training – plants will sort themselves out to the conditions they like. Because native plants are adapted to local conditions, they are the easiest to grow! Now I have lots of plants to enjoy. My backyard is forested and unmanaged; I buy forest seed every year from Prairie Moon Nursery and spread it around – plants pop up when they are in a good place that matches their sunlight and moisture needs. Right now my backyard is full of purple giant hyssop and it’s covered with various bees, from big bumble bees to small little sweat bees!

I am in despair about the loss of biodiversity, but people can only appreciate what they know. I try to share my excitement about different organisms, and I am also learning new things too, which is always fun!

Lynn Kellner – Des Moines, Iowa

Growing up, my mother always had a yard full of flowers, fed the birds, watched butterflies, and loved the natural world. She was always reading, learning, and sharing. She inspired me, and I count it as one of her greatest gifts to me. No matter where I’ve lived, I’ve always had flower gardens, vegetable gardens, herb gardens, and bird feeders, and I’ve learned more as time has passed. I started deeply appreciating pollinators in 1981 when my then 5-year-old daughter and I searched a country road’s ditch for monarch caterpillars for a school project. As the class watched the caterpillars transform to butterflies, we learned all about milkweed, host plants for other moths and butterflies, and learned that some flowers are better than others for supporting bees, wasps, and other insects.

I started to become concerned about insects and bees when I learned about colony collapse disorder. Since then, I’ve become even more interested in pollinators, native plants, and other wildlife. I see myself as a realist, and that’s why I have hope during insect declines and climate change. I believe in the change of seasons, in science, and I believe in the goodness and perseverance of humankind. It may not be a direct line, but we will always keep moving forward.

A longhorn bee in just one of Lynn’s pollinator-friendly gardens.

Todd’s business, Wild Birds Unlimited, Ames, hosts many presentations about our native wildlife.

Todd Burras – Ames, Iowa

I grew up on a farm in north-central Iowa, with parents who took a great interest in birds, animals, insects, trees, and flowers. My dad was very active in implementing soil and water conservation practices, and he and my mom planted many windbreaks, shelterbelts, waterways, and bufferstrips. It was probably inevitable that I would adopt an appreciation for the same things in which my parents were interested.

Many things that raised my curiosity converged to eventually interest me in pollinators. To complete the Story County Master Conservationist program, I started a weekly outdoors page for the Ames Tribune that ran for over 20 years. While I learned about hunting and fishing, I was introduced to federal habitat programs that, while created to help pheasants and waterfowl, had the added benefit of providing habitat for songbirds, butterflies, amphibians, and other wildlife. But it was while learning about the native flowers incorporated in the seed mixes used in these programs that I became interested in prairie and the natural history of Iowa. Through this interest, I was introduced to an entire niche group of prairie enthusiasts that opened my eyes to the wonder of what Iowa was like prior to European settlement. The desire and urgency to learn more and to be actively engaged in conservation practices took root and has been growing ever since.

My wife, Stephanie, and I started supporting wildlife and pollinators by planting trees, shrubs, and flowers – not exclusively native ones at first. We eliminated pesticide use on our property, and Stephanie started keeping honey bees. I know that honey bees can be seen in a negative light, but they really were a “spark” insect that accelerated our interest in learning about and helping other pollinators and wildlife. Lastly, our deepening friendships with other conservation-minded people have been instrumental in our evolution of trying to become better stewards of the land and all creation.

In terms of insect decline and climate change, I’m encouraged when I see people make connections between their favorite birds or butterflies with their specific habitat requirements. Once that connection is made, they begin to understand how they can steward their land to provide for, and hopefully secure a better future for, the wildlife they are interested in and all creatures that play an integral role in the ecosystem. The pollinator project undertaken by Prairie Rivers of Iowa and the City of Ames is going to accelerate these connections for countless residents, and help change the trajectory of how our community grows more environmentally friendly for years to come.

A tiny sweat bee foraging pollen on a native flower, purple prairie clover.

Celebrating 100 Years of the Reed/Niland Corner on the Lincoln Highway in Iowa

by Jeanie Hau | Jul 14, 2023

The Colo Historical Association and Kelsey Reed, manager of Niland’s Café and the Colo Motel, are looking toward the future while celebrating 100 years of the Reed’s Standard Service Station and the Reed/Niland Corner.

The Reed/Niland Corner sits at the crossroads of two transcontinental highways, in the small town of Colo, Iowa. The corner represents the history of auto transportation in the United States of America. This place is where the Lincoln Highway (the West-East motor route officially announced in 1913), and the Jefferson Highway (the North-South motor route officially announced in 1915) meet, join, and eventually separate in the center of the United States.

The Beginning
In 1923, a soft-spoken, kind-hearted, generous man, Charlie Reed needed to supplement his small farming income to support the farm and his mother, whom he cared for until she passed away at 95. He saw an opportunity where the Lincoln and the Jefferson Highways meet, which happened to be at the SE corner of his property. Charlie started selling gas to travelers and set up a small gas station on his property.

He called his station the Lincoln-Jefferson Station (the L & J for short). It was not long before Charlie allowed travelers to camp on his land and to make them more comfortable, he added several “cubby hole” tourist cabins. To feed all of the travelers, Charlie soon started to sell sandwiches and cool beverages next to the small station. There is little chance that Charlie knew at the time that he had just started what was to become known as the traveler’s “one stop.” The corner may hold the claim that it was the first one-stop on the Lincoln Highway in Iowa, and it quickly became one of the first that was open 24 hours as well.

Early days of Reed's Standard Service Station - Colo Historical Association Photo

The Gas Station
The L & J Station relocated to the west side of the one-stop in 1930 (the original location was east of the current motel). Charlie renamed the station Reed’s Standard Red Crown Service Station. The architect of the station is unknown but the design shows design details of the Arts & Crafts movement of the early twentieth century with its awning and pillars.

Charlie’s gas station sold gas, oil, tires, batteries, cigarettes and cigars, soda pop, and candy and until 1940, the station offered oil change and tire repair services.

According to Herb Owens, who interviewed Charlie for the Des Moines Tribune in 1952, the station employed 11 people besides Charlie, had four pumps and served as a bus station for two major bus lines, the Greyhound and the Jefferson. The station was open 24 hours and boasted of a TV in the waiting room with two old leather Morris chairs. Owens says that Charlie liked to hang out at the station watching football or wrestling on the TV or playing checkers at the station on a Sunday afternoon.

Charlie Reed could be seen at the station most days until he passed away on June 26, 1967, at the age of 91. The Station closed and has not been open on a regular basis since then.

The Café
In 1926, Charlie decided to build a building for his lunch sandwiches and located it across from the L & J Station on the south side of the Lincoln-Jefferson Highway and fittingly called it, the L & J Café. Charlie’s nephew, C. Reed Niland helped Charlie run the station and C. Reed’s wife, Florence, ran the café. In 1930, when Charlie moved the Standard station to the west, he relocated the café to the north side of the road at the present-day location, and he enlarged the kitchen and seating areas. He likely renamed the cafe to Niland’s Cafe at this time or some time in the early 1930s. The restaurant would continue to go through small size changes over time.

The café was renamed Niland’s Café. In 1932, C. Reed Niland passed away unexpectedly so another one of Charlie’s nephews, Claire Niland, helped at the station and Clare’s wife, Margaret, ran the café. Later, the husband/wife team took over the café. In 1952, Herb Owens reported that the couple still ran the café and described that there was, “a counter, booths, and a 100-selection jukebox; seven people were employed, and an extra girl worked in the summer.” The café was run by the Nilands until their son John took over and decided to close the café in 1995.

The Motel
The motel also offered a shower house and electricity before other motels along the highway did. Around 1947, Charlie decided to expand the campground and sold the “cubby holes.” He built 21 heated cabins for year-round use. Herb Owens reported in 1952, that there were two chambermaids employed and that Charlie, “loved to handle the rental of the motel space and that repeating guests loved him…he would always give them extra bars of soap and twice as many towels as they needed.”

The Corner
In 1930, when the Jefferson Highway (US 65) was paved from the corner to the north, a sweeping curve was built on the north side, or backside, of the building. This curve created a triangle form of roadways around the buildings. The corner or, “the operations on the triangle,” as Owens called it, had become known as the Reed-Niland Corner. Three generations of the two related Colo families had served auto travelers for more than seventy years because a small, quiet man needed to supplement his income and in doing so had discovered that he enjoyed the interaction and service to others.

Keeping the Historic Corner Historic
In 1995, the Reed/Niland Corner became the property of the City of Colo. The Colo Development Group was formed and appointed to plan a renovation to preserve the history of the corner and plan for the operation of the café and motel. A Des Moines architectural firm was hired. It was decided that the station, the café, and the motel would be restored to a 1940s-1950s design. A pedestrian walk was added to the corner with several interpretive signs to tell the Reed/Niland story. The project cost nearly $1 million including $663,000 in grant funding from the Iowa Department of Transportation and Federal Highway Administration’s Transportation Enhancement Funding, plus about $270,000 in local donations.

Reed’s Standard Service Station and Niland’s Café were renovated in 2003, and the motel finished renovations by 2008. You cannot get gas at Reed’s but it is now a museum outfitted with vintage Red Crown gas pumps, the original cash register, and other small items left from the working station. Signs for the bus station and the historic Lincoln and Jefferson Highways can be found inside. The station museum was only open to visitors by request or during special events until recently. Several bus tours and many visitors from nearby and abroad have stopped by the restaurant and received a special tour of the Station.

History inside the Reed's Standard Service Station.

The Future
The Reed-Niland corner is not currently on the Register of Historic Places. With the rich history and significance as a one-stop and unique crossing of the Lincoln and Jefferson transcontinental highways, there is a real possibility for a listing in the future.

Early in 2022, the Reed Station was opened to visitors by the Colo Historical Association as their local history museum. The Association’s main focus is displaying the history in and throughout Colo including but not limited to Lincoln & Jefferson Highways, the railroad, the Reed-Niland Corner, and all of the local Colo history. The following is a statement from the Association:

“With the Reed-Niland Corner being a complete one-stop complex left in the Nation along the Lincoln Highway, the museum has been pleasingly overwhelmed with the number of visitors and their wonderful comments and support for having the Station opened to view, not only for the station history and artifacts but those of the Lincoln and Jefferson Highways, Niland Café & Colo Motel, the nearby railroad and our vast local Colo history!”

“Each month we have several visitors at the Station from all over Iowa. Many also visit Niland’s Café next door. We have had several visitors stop as they pass through, traveling the Lincoln Highway as a specially planned trip. The Station had many out-of-state visitors in June as we hosted a food stop for the Jefferson Highway Caravan as they traveled to their annual conference in Mason City, Iowa. As the new school year approaches, the Historical Association will be reaching out to our local schools to schedule tours to share with the younger generation the most interesting history and stories from the past!”

Kelsey Reed (no relation to Charlie) holds the current lease for managing Niland’s Café and the Colo Motel. Kelsey says that it was a fluke that she found the management posting on Facebook and that she was only expecting to be the manager of a restaurant where the menu was already set, the employees in place, and building repairs were not her responsibility. She was excited when she found out that she could make her own menu, set her own hours and make the changes she sees to become successful. Kelsey had run her own restaurant in Baxter, Kelsey’s Kitchen, for two years and didn’t want to close that location, but managing two restaurants was not an option for a single mother of a ten-year-old boy, Jaxon.

Kelsey said that for the restaurant, she had to do some deep cleaning, a slight remodel and update the wiring when she took over management. She is a bit frustrated going into the heated days of July with only air conditioning in the dining room. The windows of the building are very old and there is likely no insulation, so the kitchen can be unbearable on these warm summer days. She found two experienced cooks John Fritz (retired owner of the Country House) and Jessica McKinney who have worked as a team with the menu and processes. Travelers can expect a traditional homemade dining experience that includes homemade pies and hot beef sandwiches. Reed would also like everyone to know, “I have had great support from the community and welcome any and all ideas to continue to make the business successful.”

The motel’s six rooms rent out per night, week, or month. Reed says that she is almost completely booked out until winter with many of her customers being construction workers, migrant workers, and travelling nurses. Additionally, the City of Colo manages four apartments on the corner.

100 Years of the Reed-Niland Corner Celebrations

To celebrate the 100 years since Charlie Reed began serving gas to travelers on the Lincoln and Jefferson Highways, the Colo Historical Association hosted an open house at the Reed Station Museum in June. Visitors ranged from local citizens to a caravan of motorcyclists who took cover under Charlie’s awning and visited with the historians.

I gathered a great deal of historical information from the museum and was shown the curious “bat” the station attendants used for protection (a deer’s leg fashioned with a handle for “handling”). My husband and I also frequented Niland’s Café for the first time and I ordered my standard café order of a hot beef sandwich and slice of pie. It was the best hot beef sandwich I have ever had, and the pie was great too!

No one can say that Kelsey Reed is not on board with celebrating the history of the Reed-Niland Corner. From the photographs, she looks at every day on the walls of the café to the postcards she sells and the celebration that she has planned for the corner on Saturday, August 5th. Reed’s Service Station Museum will be open as well.

The celebration will feature a band from noon until three and food specials outdoors as Charlie did back in 1923. They’ll be slinging burgers and hot dogs in addition to the regular menu. The kitchen closes at 8 p.m. and the bar will remain open until 11.

Find the full details here.

The Colo History Museum/Reed Station is open the last Saturday and Sunday of every month from 10-2 and for special events.

Niland’s Café and the Colo Motel are located at 24 Lincoln Hwy in Colo.

Café hours May 1– Oct 31: Tues-Fri 11-8, Sat 8-8, Sunday 8-2 , Nov-April closes, at 7 p.m.

Morel rooms can be reserved in advance by calling 641-377-3662.

Nearby recreation can be found at the Colo Bogs Wildlife Management Area less than a mile to the east on the Lincoln Highway Heritage Byway, and at Story County Conservation’s 445-acre park Hickory Grove Park which includes a 98-acre lake featuring fishing, swimming, canoeing, picnicking, and camping.

Thank you to the Colo Historical Association for the history and to Herb Owens, for the article he wrote in the January 25, 1952, Des Moines Tribune.

Tallgrass Prairie – A View from the Fly on the Gall

by Jessica Butters | Jul 13, 2023

The North American Prairie Conference was a big conference (638 people from 24 states and 2 countries) but not all the sessions dealt with big mammals, tall grasses, and wide open spaces. During a break from working the registration table, I caught some delightful talks by MJ Hatfield and Chris Helzer about the tiny creatures you can meet and the stories you can learn if you “walk slow, look close, and be curious” – MJ Hatfield.

Howdy! I’m a goldenrod gall fly (formally, Eurosta solidaginis). Have you ever seen flower stems with an odd, ball-shaped growth? These round growths are called galls, and if you’ve seen one on goldenrod, I may have been the architect that created it. But what exactly is a gall? To me, a gall is a highly specific and comfy nursery, created with a little hijacking (picture to the left © MJ Hatfield).

A gall can be about anywhere on a plant, including flowers and leaves, and are created by hijacking the plant’s hormones. You read that right. I’m a hormone hijacker. In spring, before I was born, my mother inserted her egg (me!) into the goldenrod’s stem. Later, when I hatched into a larva inside the goldenrod, I started eating the inside of the stem. My saliva contains chemicals that trick the plant into thinking the saliva is its own hormones. My saliva signals the goldenrod to grow more tissue in the feeding area (or nursery, as I like to call it). The goldenrod ends up creating a beautiful, round nursery. In short, I’ve built my very own gall. I’ll eat and grow in this goldenrod gall throughout the summer until fall. In autumn, I chew a tunnel near the outside of the gall and then pupate, waiting until spring to emerge. But how the heck am I supposed to get out of the gall?!

This is where it gets seriously interesting. I have an air bag like structure on my head between my eyes. I inflate this air bag against the gall, and bam! I break through, seeing the outside world for the first time. Also, this whole process doesn’t hurt the goldenrod. It nearly always flowers like normal and continues enjoying life as a goldenrod plant.

My species can’t survive in any other plant. Because I’m a weak flier, I will probably stay in the same neighborhood that I grew up in. I hope nothing happens to this patch of goldenrod…I’m not sure if I could make it to a different prairie patch. Maybe if there were more prairie plantings, it wouldn’t be so drastic if changes came to my neighborhood. The prairie restorations could act as a safety net.

Goldenrod gall with gall fly, by MJ Hatfield

As the goldenrod gall fly, my entire life and future requires the presence of goldenrod. And I’m not the only one! At least two moth species also make galls on goldenrod. There are quite a few bees that rely solely on goldenrod pollen. You might think we are picky, but can you imagine how hard it is to find a home that you can not only live in, but also eat? And us gall flies have to develop specific chemicals in order to hijack specific plant hormones to even make our home and food. It’s very complicated, and we can’t just change all that with a snap of our wings!

Stiff leaf goldenrod, photo credit Dan Haug

Many people now know that monarch caterpillars can only eat milkweed, and are planting gardens with milkweed to help them. That’s great, but monarch butterflies are not the only insect that needs a certain plant for food or shelter. Sawtooth sunflower has four different species of gall-forming insects that dependent upon it. The blue sage bee requires pollen it can only get from blue sage flowers. Swallowtail butterflies rely on plants in the carrot family (such as golden alexander). Make room for a diverse prairie planting and you could be supporting ten times as many species of insects, many of them so small or well-camouflaged that few people have ever met them!

Tallgrass Prairie – A Butterfly’s View

by Dan Haug | Jul 13, 2023

The tallgrass prairie once covered 170 million acres, and at the 2023 North American Prairie Conference, I was reminded of that continental scale. Between assisting presenters with technology, I heard sessions about protecting orchids in the aspen-prairie parkland of Manitoba, time lapse photography along the Platte River in Nebraska, surveying insects in Alabama’s “Black Belt”, restoring spring wildflowers on the Kankakee Sands of Indiana, and building out the native seed supply chain in South Dakota, as well as lots of good information from friends and colleagues in Iowa. The following are a few insights I picked up from the conference, written from a butterfly’s perspective.

Hi, I’m a monarch butterfly (Danaus plexippus). Like the meadowlark, I continued to thrive in Iowa long after the prairie was broken. For me, the tipping point was when GMO soybeans and copious use of herbicides replaced “walking the beans” as a method for weed control. No more milkweed in farm fields! Like the meadowlark, I’m a strong flier and not too picky about my habitat, but I’ve got two pairs of eyes (two compound eyes and two ocelli) so my perspective is a little different!

Monarchs on meadow blazingstar, photo credit Monarch Butterfly Garden

For me, it’s all about the forbs—broad-leaved herbaceous plants. I know, you can’t have grassland without grasses, but I need milkweeds to feed my caterpillars and nectar-producing flowers to drink. I’m visit whatever flowers are blooming (I’ll even use non-native forage plants like red clover and weeds like musk thistle) but since Dr. Benedict and his students are asking, yes, I do have some favorites. In addition to milkweeds, I’m partial to plants in the sunflower family, which have heads packed with nectar-producing, short tubed flowers that make for easy sipping. At the Central College prairie, compassplant (Silphium laciniatum) is my top choice, but that’s just because you don’t have any meadow blazing star (Liatris ligulostylis). As native plant nurseries and seed producers can attest, we monarchs go nuts for that!

In some remnant prairies, we’ve seen the forbs get crowded out by aggressive grasses like big bluestem and switchgrass. It’s even worse in restored prairies that used too much grass in the seed mix—we see this with older CRP plantings. On the other hand, a seed mix without any native grasses won’t have all the functions of a prairie and won’t hold up well against invasive weeds. In an intact prairie, the big warm-season grasses are important, but they’re kept in check by a combination of fire and grazing—the fire makes the grass green up and then the bison chow down! Hemiparasitic plants like lousewort (Pedicularis lanceolata) and bastard toadflax (Commandra umbellata) also set back the grass by sending a modified root into the grass roots and sucking out their juices. Prairie isn’t just a collection of native plants, it’s a web of relationships!

Few reconstructed prairies have bison or hemiparasitic plants, so check out this NRCS publication for other ideas to increase forb diversity in grass-dominated stands.

If you’re starting from scratch, be sure to use a seed mix like CP25 or CP42 that includes plenty of native flowers. We’re happy to learn that over 600,000 acres in the Conservation Reserve Program (CRP) have been planted with these mixes.

Iowa can be an inhospitable place for an insect, but thanks in large part to the efforts of the Tallgrass Prairie Center at UNI and the Iowa DOT’s Living Roadway Trust Fund, we have a better supply of native seeds than many other states, and many miles of roadside ditches planted to prairie. Next step, find some more room for prairie plantings on farms and in cities!

NAPC field trip to Neil Smith Wildlife Refuge

This article is based on sessions presented by Laura Jackson (University of Northern Iowa), Tom Rosburg (Drake University), Russell Benedict (Central College), Justin Meissen (University of Northern Iowa), Brian Wilsey (Iowa State University), and James Cronin (USDA-NRCS).

Tallgrass Prairie – A Bird’s Eye View

by Dan Haug | Jul 13, 2023

The tallgrass prairie once covered 170 million acres, and at the 2023 North American Prairie Conference, I was reminded of that continental scale. Between assisting presenters with technology, I heard sessions about protecting orchids in the aspen-prairie parkland of Manitoba, time lapse photography along the Platte River in Nebraska, beetles in the prairies of Alabama’s “Black Belt”, restoring spring wildflowers on the Kankakee Sands of Indiana, and building out the native seed supply chain in South Dakota, as well as lots of good information from friends and colleagues in Iowa. The following are a few insights I picked up from the conference, written from a bird’s perspective.

Hi, I’m an eastern meadowlark (Sturnella magna). I grew up in the tallgrass prairie, but I’m not picky about the species composition of my grassland habitat. I was the most common bird in Iowa for a century after the prairie sod was broken, making a good living in hayfields and hedgerows. Things didn’t get really bad for me until the second half of the twentieth century, when most Iowa farms dropped alfalfa, hay and small grains in favor of corn and soybean production at ever larger scales. That conversion is also the root of the nitrate problems in Iowa’s rivers.

But the flip side of that is that grassland generalists like me don’t need a perfectly authentic prairie to make a comeback. A food system that included more pasture and forage crops to raise animals could make a big difference for wildlife, water, and the vitality of rural communities.

For more on this concept, see the University of Wisconsin’s “Grassland 2.0” project, which is reimagining a food system that provides the ecological functions of prairie. The new book “Tending Iowa’s Land” edited by Connie Mutel comes to the same conclusion: the book introduces Iowa’s four worst environmental crises with a combination of science and stories, explains their historical roots, and outlining visions for a more sustainable future. Laura Jackson’s presentation also provided inspiration for this article.

Notable Quotes from Sackett v. EPA

by Dan Haug | May 30, 2023

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.

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…

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?

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….

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.

« Older Entries

Next Entries »