Wednesday, February 17, 2016

Wetlands Politics: Justice Scalia’s “Transitory Puddles”

DSC_1373I feel a connection with the late Justice Antonin Scalia, albeit indirect. He had strengths, but an environmental and land ethic, because they were not enshrined in the U.S. Constitution, seemed irrelevant to the Justice. Just before he died, he joined the majority in putting a stay on the the Environmental Protection Agency’s clean power regulation and thus called into question American climate commitments made in Paris. But my story is local, not global.

Some years ago, the U.S. Army Corps of Engineers (ACOE) was involved in determining whether small, one-eighth acre, biologically active wetlands near our home that dry up in the summer, known as vernal pools, were worth protecting under the federal Clean Water Act’s Section 404 program. A developer wanted to build 18 homes – outside of the Adirondack Park – abutting ours that would directly impact the red maple swamp forest in which the pools lay.

The Corps’ wetland specialist influenced by a key Supreme Court decision that same year, ultimately deemed the pools “isolated” with “no nexus to federal waters of the United States” and wrote to the town planning board that it would not subject the developer’s application to further review. We (and other near neighbors) sued the town for lack of a full environmental impact study, to no avail. The homes are still being built. Over time, the vernal pool where wood frogs have bred each April for decades and lying just 25 feet from the subdivision road will be degraded or destroyed.

Later, I learned from Adirondack Wild’s expert witness in the Adirondack Club and Resort hearing, Dr. Michael Klemens, that in order to survive the rest of the year, wood frogs, spotted salamanders and other amphibians require a significant wooded buffer around their breeding pools. To maintain its biological productivity, 75% of the circumference around a vernal pool must remain intact woodland, out 600-750 feet beyond the pool.

Where did “isolated” wetlands with “no nexus to federal waters” come from? It came from a June, 2006 ruling of the U.S. Supreme Court, with the majority opinion written by the late Justice Scalia. It muddied the waters of federal wetland protection.

The late Justice’s obituary no doubt cited very consequential decisions, such as Bush v. Gore, and the Citizens United case. But when I think of  Justice Scalia, I think of Rapanos v. United States.

In Rapanos, Justice Scalia and three others, including Chief Justice Roberts, ruled that the State of Michigan and the lower federal courts had trespassed beyond the bounds of earlier court decisions and what the Clean Water Act permits in the protection of wetlands. Justice Scalia wrote scathingly of the Army Corps of Engineers’s jurisdiction over “ephemeral channels and drains,” “transitory puddles” and “ephemeral flows.” The Justice interpreted the 1972 Clean Water Act as drawing a hard line around the permanent lakes, ponds, rivers and streams of the U.S. He claimed that unless a wetland maintains a “continuous surface connection” that makes it “indistinguishable” from a permanent body of water, it is not a wetland subject to federal jurisdiction. Unfortunately, the earth does not respect such bright lines.

Scalia sought to deny federal jurisdiction over millions of acres of prairie potholes, the breeding grounds for North America’s ducks; vernal pools where our amphibians breed; and millions of smaller wetlands that may have all sorts of invisible, below ground “connections” hydrological, ecological and otherwise, but do not have a “continuous surface connection” with a permanent body of water.

In his version of strict construction of the Clean Water Act, Justice Scalia also gave the green light to developers like Rapanos, who filled in more than fifty acres of wetlands in three different drainages in trying to construct shopping centers, contemptuously ignoring stop-work orders by the State of Michigan and U.S. Environmental Protection Agency.  This developer aggressively pursued, like so many, his bottom line and to hell with wetlands, downstream landowners and Lake Huron. His “free market” approach aligned with Justice Scali’s, as have so many others.

In reading the Rapanos decision, it becomes apparent that what Justice Scalia really couldn’t tolerate is much of any federal jurisdiction over states in land use. Scalia’s argumentation was typically brilliant, but his analysis was shallow when it came to interpretation of the Clean Water Act. Four other justices, led by Justice Souter, dissented, arguing it was necessary under the Clean Water Act for the Army Corps of Engineers and the EPA to exercise discretion and judgment in federal jurisdiction of wetlands, which are in any way adjacent to permanent waters of the US. The protection of these adjacent wetlands, whether or not they have a continuous surface connection with water bodies, directly addresses the congressional concern for protection of water quality and aquatic ecosystems expressed in the Clean Water Act.  In their dissent, these justices pointed to congressional concerns in the CWA for wetland aquatic habitats, attenuation of floodwaters by wetlands, removal of sediment and toxic materials by wetlands and other economic values wetlands perform every day at no cost to the public at large.

It was left to Justice Kennedy to break the complex 4-4 ruling. He ruled with Justice Scalia in remanding the Rapanos case back to the Michigan courts and in finding that the Army Corps of Engineers/EPA had an overly broad wetlands jurisdiction. But he sided with Justice Souter in also finding that the Army Corps of Engineers/EPA had to exercise agency judgment about jurisdiction of wetlands that might not exhibit a permanent surface connection with water bodies of the US.

Therefore, Justice Kennedy held that federal jurisdiction over wetlands must establish a “significant nexus” between the wetland and the water body, including chemical, physical and biological integrity of the water body. While that may sound pretty good, Justice Kennedy left it up to the Army Corps of Engineers and EPA to determine “significant nexus” on a case by case basis for thousands of difficult, often politically challenging permit decisions.

Army Corps of Engineers biologists have to stick their necks out, time and again, to justify to their superiors a “significant” nexus between a wetland and a water body. Many small wetlands under development pressure, like those near our home, will ultimately be determined as non-jurisdictional to the Army Corps of Engineers, and be filled or degraded by development sited far too close. Many small state natural resource agencies depend on the Army Corps of Engineers/EPA to delineate wetlands and to protect their state interests in wetland protection. Those state interests were also the losers under the Rapanos case. Our own NYS DEC only regulates wetlands which are 2.5 hectares (12.4 acres) or larger. Efforts to expand DEC wetland protection have stalled for decades in the NYS Senate.

Fortunately, in the Adirondack Park the Adirondack Park Agency also has permit jurisdiction over impacts to freshwater wetlands of practically any size.

So what to do if you are an environmentally concerned person working to protect wetlands and wondering where President George H.W. Bush’s 1989 pledge of “no net loss” of wetlands ever went?

Don’t stop writing and speaking out. If you’re working to protect a wetland smaller than 12.4 acres in New York State, keep the Adirondack Park Agency in Ray Brook and your local Army Corps biologist informed. The Army Corps of Engineers Regulatory Permits Office is in Troy, NY. Our local Corps biologists really do know and care deeply about wetland functions and values. They simply are in a tight place. So are the amphibians breeding in those vernal pools. The late Justice Scalia made that tight place much tighter.


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Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for over 30 years as executive director of the Association for the Protection of the Adirondacks, executive director of Protect the Adirondacks and currently as managing partner with Adirondack Wild: Friends of the Forest PreserveDuring Dave's tenure at the Association, the organization completed the Center for the Forest Preserve including the Adirondack Research Library at Paul Schaefer’s home. The library has the finest Adirondack collection outside the Blue Line, specializing in Adirondack conservation and recreation history. Currently, Dave is managing partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.

24 Responses

  1. Will Doolittle says:

    Wouldn’t any rule on wetlands that aren’t always wet rely on judgment calls and have to be determined case by case? If the standard should not be a “significant nexus” between the wetland and a recognized federal body of water, then what should the standard be? Surely, every low spot that occasionally fills with water does not qualify. So what does? It seems to me, as standards go, this one is pretty good.

    • Bruce says:


      I’m with you. I don’t think the presence of a single species of plant or animal is grounds for protection, because it could be an aberrant species in that specific location at the time it’s found. I believe it should be shown that there is a complete ecosystem supporting long term species survival.

      I know of some very old, and no longer maintained road ditches which have filled with water, are growing cattails, and have frogs, salamanders etc. using them. Should they be classified as wetlands, deserving of protection? What about old house foundations in the woods that fill with and remain full of water for the better part of the year? Beavers dam up a creek in the woods and no one pays any attention for a few years, until a road or significant piece of private property is flooded. Meanwhile other critters move in to take advantage.

      Too many questions, too few answers.

  2. JohnL says:

    Couldn’t these comments have waited at least until AFTER Justice Scalia’s funeral.

  3. JohnL says:

    Just common courtesy. You probably wouldn’t understand.

    • Brent says:

      Agreed. Let’s have some respect.

    • Boreas says:

      Perhaps the article could have waited, but I frankly don’t see the point. Dave wasn’t attacking him, just stating how one of his decisions effected him personally. SC justices spend a lot of time analyzing each case and typically are proud of their individual opinions. That’s why they write them down for the public record to be discussed. I think the last thing a SC justice would want is to be irrelevant.

      Now the immediate political kerfuffle the GOP brought up while he was still warm is another issue entirely.

  4. boreasfisher says:

    Interesting and thoughtful post Dave….and as is typical of your communications, you never fail to make clear that criticism does not have to mean disrespect, that disagreement with someone’s point of view does not mean being disagreeable.

  5. Phil Terrie says:

    Good article, Dave.

  6. Craig says:

    Its possible to completely agree with your position on wetlands but not support the idea that the President (via the EPA) or the Supreme Court really have jurisdiction over a particular wetland in a state.

    Why not just pass a law in the particular state to deal with the wetlands policy? I’m sure Scalia would have thought that to be the proper way to deal with these situations.

  7. Paul says:

    One of the best “vernal pools” I have ever seen is one created by a road culvert dammed up by beaver. I was almost a half mile away from this when I heard this strange chirping, I figured some kind of birds. When I got closer I realized that it was hundreds (maybe thousands) of some type of frog that was mating in this pool of water not much larger than a small swimming pool. If you need to develop something where a vernal pool is the thing to do is just create another vernal pool like this one. No reason for people to argue and fight over such a small piece of ground.

  8. Curt Austin says:

    A serious issue, a difficult issue. Contentious since the law still treats the federal government as a mere confederation of otherwise independent countries (states). The pools near your house must have a significant affect on Vermont to be considered a federal matter. It would be great if we had a constitutional amendment that put all air and water issues under federal jurisdiction, and end the need to torture the constitution to allow the CWA (ditto for many other things, like campaign finance laws).

    I’ve unintentional arrived at a point: this is similar to the notion that the SLMP should be amended before a bike trail can be established. It would be a rational thing to do, but in the real world, the SLMP is going to get tortured the same way; it ain’t pretty, but it’s the way we do things.

    A compensatory humorous story: I had a friend who was an Administrative Law Judge for the US Labor Department. He had a case involving maritime labor law, which includes ship building. It only applied if the property in question was located on the ocean, including estuaries.

    There was a ditch behind the property with transient water in it. The plaintiff claimed it was an estuary. One way to tell was to consider the fish in it. After an expert witness described the situation, my witty friend, the judge, calmly asked “So, has the elven left the stream?”

    The court reporter chuckled, but no one else caught the reference.

  9. Will Doolittle says:

    There is nothing disrespectful about Dave’s post. Why delay debates about important matters of law, or even unimportant ones, because a justice who played a part in interpreting them died recently? Scalia was a contentious, political person who celebrated vigorous argument. I’m sure he would scoff at the notion that any such disputes involving him should be silenced for several days after his death.

  10. Paul says:

    The simple question here is where do you draw the line. Development is going to impact ecosystems. Building a house (like the one Dave and most of the rest of us live in) destroys ecosystems to some extent. Just digging a foundation destroys billions and billions (hey I sound like Carl Sagan!) of micro-organisms and many macroscopic organisms. Basically entire microbial ecosystems are wiped out. Is that alright or should it be banned by the EPA as well?

    • Boreas says:


      The difference is the ecosystems you describe are neither unique nor threatened. However, ecosystems that support threatened species such as vernal pools should be protected as much as possible. Many amphibians are threatened now for numerous reasons. Why make it any harder for them?

      • Paul says:

        we have no idea if these less well understood ecosystems are more unique or threatened. we are just starting to learn about the importance of these micro-biomes in the soil.

        • Boreas says:

          Agreed. But we do know about the importance of vernal pools now and should make some effort to create or preserve them. When we have a clear picture of micro-biomes, hopefully we will proceed accordingly as well.

  11. Charlie S says:

    Bruce says: “I don’t think the presence of a single species of plant or animal is grounds for protection….”

    Every species ought to be protected Bruce!

    • Bruce says:

      Charlie S,

      By definition, vernal pools are temporary, but read the rest of what I said, and I’ll rephrase for clarity…a new vernal pool pops up in a particularly wet year, some frogs, toads, or salamanders find it and decide it’s a great place to lay their eggs, but it doesn’t stay there long enough to develop a complete and viable ecosystem, before it dries up later in the year. What’s to protect?

      I believe the issue is whether or not the pool is a recurring event, and an entire ecosystem has built up around the fact it is there, and it will in time.

  12. Charlie S says:

    My brother has a vernal pool atop the hill in the woods behind his house and for years without fail wood frogs sing their amphibious tunes to the delight of his ears from that pool. That pool is threatened because some city person bought the land and in his urban mind profit is worth more than a quiet woods and all of the beautiful lifeforms within it. I got what you say Bruce.I jumped the gun a little when I saw that you were against protecting a single species.I jumped the gun because I see such horrible things that go against nature daily and I suppose in a way my soul is vexed because of this.

    • Boreas says:

      I agree. Species shouldn’t need protection. Humans are so used to disrupting nature that they no longer feel they have any impact on it.

  13. Charlie S says:

    The only words that I agree with in your comment above Boreas is “they no longer feel” (as in humans ‘they.’) When you say “Species shouldn’t need protection” I assume you speak with forked tongue.

    • Boreas says:

      Exactly – ‘they shouldn’t be threatened in the first place’ – is what I meant by that statement. If humans need to protect ecosystems, oceans, land, flora and fauna, from themselves, then we are just too damned invasive and damaging.

      We should ALWAYS strive for the least environmental impact in everything we do. Currently all eyes are on diseases borne by skeeters. We’ll likely soon be eliminating breeding areas and enacting control measures – much of which will be to the detriment of amphibians and non-target insects. Amphibians are the canary in the coal mine.

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