A recent ruling by the Supreme Court on filling wetlands for construction may have a profound impact on the future of Martha’s Vineyard, and many other locations where wetlands proliferate.
In 2007, Michael and Chantell Sackett decided to build a house on their property that was 300 feet from Priest Lake in Idaho. The problem was that property was a wetland, which they began to backfill. The Environmental Protection Agency demanded they restore the wetland or face a fine of $40,000 per day.
The agency stated that the Sacketts’ action violated the Clean Water Act because the measure bars the discharge of pollutants, including rocks and sand, into “navigable waters,” defined as “waters of the United States.” The EPA reasoned that the wetlands on the Sacketts’ lot fed into a non-navigable creek that then led to a lake.
Under existing law, the EPA needed only to establish “a significant nexus” or connection between the wetlands and waters that are covered by the Clean Water Act. The EPA then would determine whether the wetlands “significantly affect” the quality of those waters.
Writing for the court, Justice Samuel Alito rejected “the significant nexus” test in Sackett v. the Environmental Protection Agency. He created a more stringent and narrower one that makes it far easier for developers to backfill a wetland. He held that because the Sacketts’ property was too far from any identifiable water of the U.S., their wetland was entirely separate from a traditional body of water.
From now on, a property will not qualify for Clean Water Act protection unless it directly abuts a navigable body of water.
The Martha’s Vineyard Commission notes that of all the habitat areas on the Island, “wetlands — those transitional zones between land and water — may be the most critical to our ecology’s fate and our ability to endure more frequent storms and mounting sea level rise.” According to the commission, the Vineyard possesses some 3,500 acres of wetlands, an area larger than the town of Aquinnah. It identifies these areas as “salt marshes and freshwater swamps, along with open water and beaches,” as well as many other small bodies of water.
Under the court’s new rule, many of these areas may now face serious development pressures. All a property owner would have to show is that their land does not directly abut a larger body of water, one that could be construed a part of “the waters of the United States.”
Development pressures have only increased with the enormous growth in population on the Island as a result of the pandemic. Sensitive habitats and wetlands are now endangered to an even greater degree. Island leaders must be wary of development in these areas, and plan for a future when wetlands may well face extinction.
In rejecting Alito’s new test, Justice Brett Kavanaugh, joined by three others, noted that “the Court concludes that wetlands … are not covered as adjacent wetlands because those wetlands do not have a continuous surface connection to a covered water — in other words, those wetlands are not adjoining the covered water. I disagree because the statutory text does not require a continuous surface connection between those wetlands and covered waters.”
Kavanaugh wrote that the new rule would have “significant repercussions for water quality and flood control throughout the United States.”
The Sackett case comes a year after six conservative justices severely limited the authority of the EPA to limit carbon dioxide emissions, related to climate change, from power plants. In West Virginia v. the Environmental Protection Agency, six conservative justices ruled that the EPA may not place emissions caps on power plants because Congress never empowered it to do so.
Congress for decades has allowed federal agencies to prepare and write the rules so that federal laws may be enforced. For many years, conservatives have tried to rein in these agencies, which they call manifestations of “the deep state.” They claim they undermine the powers of the president and Congress.
But if the EPA is unable to protect our wetlands and the air we breathe, we may all face a time in the not-too-distant future when it will be difficult to breathe and impossible to find many wetlands as we know them. The protection of the Island’s delicate wetlands now relies solely on the commonwealth and the town boards, given the paucity of support the Vineyard can expect from the federal government.
Jack Fruchtman, who lives in Aquinnah, has written “American Constitutional History,” now in its second edition.