Supreme Court allows Idaho couple to challege EPA on wetlands ruling

[mahatmakanejeeves]

Source: Washington Post

By Robert Barnes, Updated: Wednesday, March 21, 11:47 AM
The Washington Post

The Supreme Court on Wednesday unanimously ruled for an Idaho couple who have been in a four-year battle with the Environmental Protection Agency over the government’s claim that the land on which they plan to build a home contains sensitive wetlands.

The decision allows Mike and Chantell Sackett to go to court to challenge the agency’s order.

“There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for review--even judicial review of the question whether the regulated party is within the EPA’s jurisdiction,” wrote Justice Antonin Scalia.

The Sacketts wanted to build a home on a 0.63-acre lot near pristine Priest Lake in the Idaho panhandle that they bought for $23,000. But after three days of bringing in fill dirt and preparing for construction in 2007, officials from the EPA and the U.S. Army Corps of Engineers ordered the activity stopped and said they suspected the land contained wetlands.


Read more: http://www.washingtonpost.com/politics/supreme-court-allows-idaho-couple-to-challenge-epa-on-wetlands-ruling/2012/03/21/gIQAFgdsRS_story.html

[IthinkThereforeIAM]

1. It should be a crime to destroy any wetland...

... as wetlands are nature's way of purifying the environment/water. All over the US of A, there are water projects going on while developers fill in/drain wetlands and put in homes. Then they wonder why they get water in their basements; panic if the electricity goes out during a thunderstorm because their sump pumps won't be working (have seen it first hand) all because they build in wetlands, where nothing is supposed to be built.

Maybe if they left the wetlands alone and drilled a few wells they wouldn't need so many $500 million water pipeline projects.

I live in, "Slough City", in southeast South Dakota where developers have been draining wetlands for 10 years to put in homes where nothing but ducks and muskrats lived previously. And they are waiting for the Lewis and Clark Water Project to get hooked up so they can further drain the remaining sloughs/wetlands and put in more boxes. BTW, in the process, they are taking some of the best agricultural land in the world out of production.

Last year's flooding 40 miles to the south of me, along the Missouri River is a larger example of what is going on here in Slough City, South Dakota. Everytime it rains, the residents have hemorrhoid problems.

[gratuitous]

3. I don't know about making it a crime

But here in River City, we have a small waterway, Johnson Creek. Many years ago, the city fathers thought it would be a good idea to "improve" the Creek by straightening it out a little bit, and converting some surrounding seasonal wetlands into prime real estate. After all, creekside property has a higher assessed value, and that's good for the tax base.

There was a weensy problem, though. It seems that improving the flow upstream means more water rushes faster downstream during periods of heavy rainfall. And it rains in Oregon. A lot, sometimes. It became an annual ritual from October through April to see reports on the local news about flooding along Johnson Creek. One guy bought motorsports business in the area that traditionally flooded, and then complained that his store was getting inundated every year. My response was, "Duh!" You shoulda checked into that before buying your store, presumably during the summer months.

A couple of years ago, the City finally wised up and restored a section of Johnson Creek to its original meandering condition, complete with slough area to handle heavy rain. While the creek still runs pretty fast during rainy times, the chronic floods are a thing of the past, as the slough serves admirably as a holding area to give the creek enough breathing space so it doesn't flood.

My point, like ItTIA, is that wetland areas aren't always obvious to the casual observer, and their function as a buffer against flooding isn't always apparent. A full assessment and analysis of the area proposed to be built on needs to be done, and it may be that the property owners are shit out of luck. I'm hoping that the Supreme Court decision doesn't do anything except provide for a thorough study to be done, and is not a green light for the property owners to build as they see fit, heedless of the potential consequences for their neighbors.

[kristopher]

18. The issue seems to be how the determination is made and its timing

They seem to have bought the property with the belief it was not encumbered with a development restriction.

Where I live the Dept of Natural Resources is very proactive in the permitting process. Since property transfers are regulated by the states, my guess is that the state had a role to fill and fell down on the job. It wasn't until the fill started showing up on satellite monitors that the EPA became involved.

BTW, here is the EPA manual explaining how determination of wetlands status is made.
http://www.wetlands.com/pdf/89manv3b.pdf

[greiner3]

2. "Justice Antonin Scalia"

Should be under review to determine his status as a human being.

[former9thward]

12. It was an unanimous decision.

[DRoseDARs]

4. Ok, so the article is completely devoid of details. Did the Sacketts have build permits or not?

The article was written such that it looks like they just started work without any proper clearance from county or state officials. If that's the case, then multiple county and state laws alone will have been violated, never mind the federal government black helicopters swooping in to carry Mike off to Forced Re-Education and Gay Sex camp (Acronym: FReEGaS, for the lolz) to have socialized medicine injected into his eyeballs and RFID tags sewn into his skin in preparation for the coming of the Antichrist and Mike needs to fucking man-up and face the consequences of his law-breaking instead cwying to Unca Scawia and bwaming the EPA and U.S. Army Corps of Engineers for being a bwunch of big meanies.

[Bacchus4.0]

6. no federal permtis. they are challenging whether EPA/USACE have jurisdiction in the first place

while the article is bereft of details, apparently the couple is challenging whether EPA has jurisdiction at all, and the ruling allows them to take the issue to court without first going through the administrative process of restoration and then going back and asking for a permit to develop. or an after-the-fact permit asking to grandfather the development activity.

I could be wrong but I think the EPA and US government's position was that the couple would have to wait to see if the permit was denied, and the appeal denied, before they could litigate in the courts.

I think that is what the ruling essentially addresses. The ruling would not affect State and local regulations or laws.

[hack89]

9. The EPA came in after they had filled in some land

and told them it was wetlands and they had to remove the fill.

Turns out there was no record anywhere that the land was actually wetlands. They challenged the EPA's ruling - they wanted the EPA to show where the wetland designation came from. The EPA said that their rulings cannot be challenged or appealed in court.

The Supreme Court disagrees.

[Suich]

16. Thanks!

I knew it was something like that but couldn't remember the details!

The EPA is being heavy-handed in this case, imo.

[ProgressiveProfessor]

17. There was also the threats of massive fines for non-compliance, again without judicial review

My understanding is the same as yours...no prior finding of wetlands status had been made. It was also not disclosed during the sale.

It seems to me a basic fairness issue that the EPA has to prove their finding to an independent party, but its position was it did not have to and was threatening major fines and no consideration for a permit until things were restored.

It was a unanimous decision, which is fairly rare these days.

[thelordofhell]

5. The canary in the corporate coal mine

Looks like the canary made it out alive.......so here comes the big oil corporations suing the government because they won't let them destroy the wilderness in search of oil

[Dont call me Shirley]

15. That was my thought exactly and not just oil companies either.

[truedelphi]

20. I thinkt the oil and energy companies already have the right to do that.

I am not saying they SHOULD have that right - I am saying they already act as though they have that right.

[a2liberal]

7. This ruling actually seems perfectly reasonable to me

Due process and judicial review are very important elements of government and the EPA was trying to block any sort of review or appeal of their administrative decisions. Hence the unanimous decision.

[Mz Pip]

8. I agree.

The ruling isn't saying the couple can do whatever it wants.

People should be entitled to appeal government decisions that impact their lives. I see no reason why this instance should be any different.

[mahatmakanejeeves]

10. That was my take on it too.

Last edited Wed Mar 21, 2012, 08:39 PM - Edit history (3)

A government agency with which I have a little familiarity makes sure that the public is always listened to. I can't imagine that an agency could say, "that's the way it is; take it or leave it." I was horrified when Ken Salazar made his "boot on the neck" remark following the BP spill.

I am not familiar at all with this case, but I expect as a citizen that I have, oh, let's call it an ability to petition the Government for a redress of grievances. Gee, maybe even a right.

I don't see this decision as a sellout of SCOTUS to the huge corporations or teabaggers or whatever. In the next few days, I'll be reading up on this.

Thanks for writing, everyone.

[Bacchus4.0]

11. me too, and its pretty significant

the ruling does not allow federal agencies to determine when a case is "ripe" for litigation.

[IDemo]

13. The governor had an EPA wetlands violation, too

Two of them, if I recall.

http://yosemite.epa.gov/opa/admpress.nsf/d96f984dfb3ff7718525735900400c29/8ba86adf1786c2c9852570cb0075e195!OpenDocument&Highlight=2,wetlands

[quaker bill]

14. The practice sounds heavy handed

I write administrative orders to correct wetland violations as part of what I do for a living, for a State agency. Each one is served with a "notice of rights" that allows 21 days for the citizen, company, or corporation to file a petition for judicial review. If they file the petition, we go see a judge, it is just a matter of law. It has been 18 years and I have never lost a case. Sometimes the wins were not as big as I wanted, but I have always won.

The Agency making the claim should always be ready to prove it in front of a judge. Unless I am quite sure that I can, I don't file the case, it is really that simple.

I get where EPA is coming from. They are vastly understaffed and have been at least since Reagan. If every case they try to make goes to court then they will not be doing very many cases. Most cases I file settle, because I always have a strong case before I file, and the expense of defending a losing battle discourages most from ever trying the case. Some few do fight losing battles for a very long time through several courts before they finally throw in the towel and settle.

[one-eyed fat man]

21. Heavy handed?

Can you say to people "You don't have a right to go to court until we issued a final ruling?" then deny them a hearing date? Can you fine them 70 grand a day until they do what you want?

If you don't find that a wee bit coercive, what does it take?

[Bacchus4.0]

22. the EPA wasn't giving them that option

it sounds like the EPA was actually saying, "Restore the wetland, and once you do so, you can apply for a permit to fill it again." now that is heavy handed, and stupid.

a wetland permit that is denied typically takes a couple of years, and there is an appeals process as well so the couple. add to that mitigation costs, as you well know and the couple would be out lots of time and money.

what I can't believe is that ther EPA didn't confirm they actually even have jurisdiction over the wetland in question.

[happyslug]

19. Here is the actual Court Opinion

http://www.supremecourt.gov/opinions/11pdf/10-1062.pdf