How Sackett v. EPA Will Impact Our Ability to Reduce Flood Risk
Will the U.S. Supreme Court case ruling on Sackett v. EPA have an impact on the ability of communities, states, and the nation to reduce flood risk? Yes, it will. In this article, I will attempt to give not a legal, but a practical view of why that is so.
One benefit of the past practice of wetland protection was that a wetland that has any nexus to navigable water (public water) could be regulated under the Clean Water Act. This protection typically directed that the wetland could not be filled or otherwise developed. The end result was that the wetland could continue to serve as nature’s way to reduce flood risk by storing or conveying flood waters. This process has been going on for decades, greatly assisting in flood risk reduction efforts.
The court ruling in Sackett takes a far more limited view of the Clean Water Act’s scope than any administration — Republican or Democrat — has had since the birth of the statute in 1972. Since 2006, courts have used the decision determined in Rapanos v. United States that there is a science-based hydrologic connection to jurisdictional waters, even if that connection is underground.
In Sackett, the court ruled that there has to be a continuous surface water connection. Two issues involved in this case are: (1) what will be the impact of this ruling on the loss of wetlands, and (2) what will be the impact on the increase in flood risk?
On the first question, it appears that a large portion of wetlands that may have been protected by the Clean Water Act in the past will now be threatened or lost, unless a given state has its own wetland protection program (currently fewer than half do). If a floodplain was identified and there were local, state, or federal regulations limiting development in floodplains, this usually had the basic effect of protecting the wetland.
On the second question, flood risk will increase if a wetland can be filled or developed without any regulation. In some states in the west (Arizona, for example) there are few continuous surface water connections, thus removing it as public water. So the risk will increase unless the state or local governments can impose wetland protection standards.
One possible solution to this ruling is to rewrite the EPA and USACE rule on the Clean Water Act to amend the “Waters of the US” (WOTUS), which defines which streams and wetlands are subject to Clean Water Act protections. The current Administration is attempting to do this, but that will take time and will likely be subject to more litigation.
In the meantime, how can we ensure that vital wetlands are protected? As mentioned previously, there is a lot that can be done at the state and local level and these efforts should be redoubled.
At the state level, wetland and shoreline zoning standards are effective. Wisconsin’s wetland regulations were strengthened after the U.S. Supreme Court’s Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers decision in 2001, which limited the ability of the Corps of Engineers to regulate isolated wetlands. There have been numerous legislative attempts over the years to reverse those changes but they have, for the most part, not been successful. There was a law change several years ago that allows some limited exceptions for small amounts of wetland fill associated with agriculture. Wisconsin’s shoreland regulations establish shoreland wetland district regulations for wetlands in the shoreland zoning district. The regulations seek to protect the wetlands by limiting development and uses in the shoreland wetland district. However, the limitation of this regulation is that it does not apply in cities and villages. The State of Washington has authority to regulate wetlands under the state Water Pollution Control Act and the Shoreline Management Act. Further, Washington has developed an excellent webpage explaining to the public the way wetlands are regulated in the state.
At the local level, I suggest starting with a National Association of Wetland’s Managers excellent primer on local oversight of wetlands: Common Questions: Local Government Wetland Protection Programs. There are numerous approaches a local government could take, including protecting sensitive lands through subdivision control, conservation subdivisions, protective zoning standards, and even floodplain regulations.
Sackett reminds us once again that wetlands are not only valuable for water quality, but also for effective water quantity management as wetlands can help attenuate flooding levels. Nearly a decade ago, ASFPM partnered with the American Planning Association to publish the report PAS 584 Subdivision Design in Flood Hazard Areas. Among the more than 60 recommended higher standards, one recommendation that may deserve a second look is that of establishing buffer zones, which deliver multiple benefits, including stream stabilization, water quality protection, flood attenuation, and preservation of riparian and wildlife habitat.
In conclusion, while we need to continue to navigate reality in working to improve wetlands protection in a post-Sackett world, let’s not sit back and assume that if it doesn’t happen at the federal level it can’t happen at all. States and local communities are needed more than ever before to step up and fill the gap.
