How an Idaho couple’s fight to build a home near a lake might affect Louisiana’s wetlands
In 2007, an Idaho couple wanted to build a home near a lake; the Environmental Protection Agency stopped them. Fifteen years later and 2,300 miles away, the ensuing legal battle has launched the protection of some Louisiana wetlands into uncertainty.
The U.S. Supreme Court sided with the couple in May and curtailed the EPA’s authority to enforce the Clean Water Act of 1972. Coastal officials are grappling with what that means for Louisiana, which has some of the highest wetland acreage in the country.
What counts as “waters of the United States,” and is therefore subject to the Clean Water Act, has changed over the years, David Peterson, general counsel for the Louisiana Coastal Protection and Restoration Authority, explained Wednesday to its board.
The drawing of new lines in the latest decision “just created more chaos,” Peterson said.
The nine Supreme Court justices agreed the EPA went too far in preventing the couple, Michael and Chantell Sackett, from building on their property but split 5-4 on redefining what is protected by the Clean Water Act (CWA).
Justice Samuel Alito, writing for the majority, said for wetlands to be protected under the act, “they must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.” Those waters include bodies like large lakes and rivers, such as the Mississippi River.
Justice Brett Kavanaugh, joined by the court’s three liberal justices, wrote a concurring opinion spelling out fears for what the new rule requiring wetlands to have a “continuous surface connection” to covered waters might mean.
“By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States,” Kavanaugh wrote.
Environmental groups responded in force to the decision, raising similar concerns it would harm the nation’s ecosystems and the people who live in and near them. In a statement, the Sierra Club said the ruling “will open millions of acres of wetlands — all formerly protected by the Clean Water Act – to pollution and destruction.”
The state coastal authority is starting to understand how this decision might impact Louisiana.
“From a practical standpoint, I still think probably most of south Louisiana south of I-10 and the I-12 corridor is probably a good bet that that’s wetland that has connections to either the Gulf of Mexico in some way or Lake Pontchartrain … and the Mississippi River,” Peterson said.
The court’s rule that wetlands have a “continuous surface connection” to covered waterways to fall under the Clean Water Act is complicated by Louisiana’s levee systems.
“Well, if … somebody cut off the wetland deliberately in a criminal manner, certainly that’s not going to not make it a wetland,” Peterson said. “(The justices) don’t really give a whole lot of discussion about things like the (U.S. Army Corps’ of Engineers) levees … any levee artificially cutting off those wetlands.”
The ruling raises particular confusion about “leaky levees,” Peterson said, which are only closed off during storms. It’s “not really clear” how those will be affected under the new rule, he said.
Beyond areas with levee systems, the ruling might also affect isolated wetlands in north Louisiana that don’t have continuous connections to bodies the Clean Water Act covers, Peterson said.
Dwayne Bourgeois, who represents the Terrebonne Basin on the CPRA board, noted the court’s ruling doesn’t change the definition of a wetland, just a “jurisdictional wetland.”
Bourgeois and Peterson said they felt Kavanaugh’s warnings wouldn’t come to fruition.
“I’m not sure that Kavanaugh’s doom and gloom in the opinion is going to be the reality,” Peterson said.
Bourgeois said he thinks the justice’s predictions “were a bit overboard.”
“Most of what we know as a wetland in Louisiana that’s outside and has interchange and everything else is not going to be impacted by this ruling,” said Bourgeois, who is the executive director of the North Lafourche Conservation, Levee and Drainage District Board of Commissioners.
Though some confusion remains on the federal level, states can choose to enact tighter restrictions to protect wetlands, Peterson said.
“The courts are clear that the state’s can go beyond and regulate further, and many do,” he said.