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Mike and Chantell Sackett vs. the EPA
The couple wanted to build a picturesque Idaho home. Instead they were accused of building on a wetland. Now the Supreme Court will hear their case
By Greg Stohr Bloomburg Businessweek
When Mike and Chantell Sackett paid $23,000 for a lot near the banks of Priest Lake in northern Idaho in 2005, they thought they were buying the site for a picturesque new home. They got a lot more: a long feud with the Environmental Protection Agency and now a Supreme Court case that could bolster the rights of landowners facing costly demands from the federal government.
Four years ago the Sacketts were filling in their lot with dirt and rock, preparing to build a simple three-bedroom home in a neighborhood where other houses have stood for years. Then three federal officials showed up and demanded they stop construction. The agency claimed the .63-acre lot was a wetland, protected under the Clean Water Act.
The Sacketts say they were stunned. The owners of an excavation company, they had secured all the necessary local permits. And Chantell Sackett says that before work began, she drove two hours to Coeur d’Alene, Idaho, to consult with an Army Corps of Engineers official. She says the official told her orally, though not in writing, that she didn’t need a federal permit. “We did all the right things,” she says.
The EPA issued an order requiring the Sacketts to put the land back the way it was, removing the piles of fill material and replanting the vegetation they had cleared away. The property was to be fenced off and the Sacketts would be required to submit annual reports about its condition to the EPA. The agency threatened to fine them up to $32,500 a day until they complied.
The Sacketts instead tried to get a hearing in federal court, seeking a declaration that their property wasn’t a protected wetland. The plot is not connected either to the lake or a nearby creek, though Mike Sackett, 45, says part of the land got “wet” at times in the spring. “We sued because we wanted our day in court to say, ‘This is not a wetland,’ ” he says. Two lower courts turned the couple away, saying they could not make that argument until the EPA asked a federal judge to enforce the order. That left the Sacketts in limbo. Restoring the property as the EPA demanded made no sense to them. It would cost hundreds of thousands of dollars, they say, and if they ultimately won the case they’d have to clear the land a second time. But defying the order potentially meant racking up $32,500 in fines each day—and perhaps criminal liability if they continued with construction—while they waited for the EPA to decide whether to pursue the case. “It’s an unenviable choice,” says Damien M. Schiff of the Pacific Legal Foundation, a Sacramento-based property rights group that is representing the couple for free. “It’s really almost no choice at all.”
The Sacketts appealed to the Supreme Court, asking for the right to go straight to a federal judge. The high court agreed to hear the case in its fall term. It is being watched closely by environmentalists and property rights activists because of its potential scope. A ruling in the Sacketts’ favor would blunt one of the agency’s favorite enforcement tools. Each year it issues up to 3,000 “administrative compliance orders” to businesses and individuals, demanding an end to alleged environmental violations and applying enough pressure that those who are accused typically give in before the agency has to justify the action before a judge.
“The compliance order tool is one of a few mechanisms that EPA has to resolve, and resolve quickly, pollution problems,” says Jon P. Devine, a senior attorney with the National Resources Defense Council. The EPA argues the rules are reasonable. While fines may accrue, they won’t actually be assessed until the Sacketts have a chance to make their case to a judge, it says. Agency officials declined to be interviewed.
In taking on the case, the high court told the two sides to discuss in their filings whether the EPA’s procedures are so unfair that they violate the Sacketts’ constitutional right to due process. A ruling in favor of the landowners on those grounds would reverberate beyond the EPA, potentially forcing both state and federal agencies to seek court permission before trying to enforce rules.
Some environmental advocates believe the agency made a mistake in letting a case with such appealing plaintiffs reach the Supreme Court. The Sacketts haven’t dared to touch their land since the dispute began. Their dream house is on hold; they live in a rental nearby. It’s a problem for the EPA that the Sacketts “feel like the mom and pop who are getting the heavy hand of government brought down on them,” says Catholic University law professor Amanda Cohen Leiter, who sides with the agency. “I can imagine the court being sympathetic to these particular plaintiffs and issuing … an overbroad ruling as a result.”
The bottom line: The Supreme Court could turn a minor land dispute between an Idaho couple and the EPA into a far-reaching case on government power.
Supreme Court to Review Wetlands Enforcement Decision
Supreme Court to Review Wetlands Enforcement Decision
July 1, 2011 12:39 PM | Posted by Miller, Jeff |
On June 28th, the U.S. Supreme Court accepted for review a 2010 decision in a wetlands case out of Idaho. The issue in the case is whether an alleged violator may seek review of an EPA administrative order before the agency enforces the order. Because there are penalties associated with failing to comply with administrative orders, recipients risk incurring additional penalties if they refuse to comply in order to provoke enforcement in order to obtain judicial review of the underlying matter (i.e., is there a jurisdictional wetland on the property). The 9th Circuit, it its 2010 decision, held that the Clean Water Act precludes pre-enforcement review and that the lack of such review does not violate the Constitution.
The property owners in the case own a lot near Priest Lake in Idaho. They filled about .5 acres of a .63 acre property without first obtaining a permit. The EPA then issued a compliance order, alleging that the property is a wetland and ordering the owners to remove the fill and restore the property to its original condition. The property owners disagree that the EPA has jurisdiction over the property.
Because all the circuit courts that have reviewed the issue have held that the Clean Water Act precludes pre-enforcement review of such orders, it is somewhat surprising that the Supreme Court decided to review this decision. The Court recently declined to review a 2010 decision by the DC Circuit in which the court rejected General Electric’s argument that unilateral CERCLA cleanup orders without pre-enforcement review violate the Due Process Clause. Thus, it seems likely that the Court is interested in the 9th Circuit’s interpretation of the Clean Water Act and not the property owners’ constitutional arguments.
What’s Wrong With My Wetland, Part 3
You have spent hours if not days designing your wetland. You have worked out the water budget to the nearest quart. You have selected plant species and habitat types for specific wildlife utilization. Everything looks great! What could possibly go wrong?
Much of the success of a wetland restoration project comes down to the implementation of the design. There are several fatal flaws in the way projects are implemented. I will just focus on just one issue for today.
When a project is let (a construction award) it usually goes to the lowest qualified bidder. It is a very rare circumstance that even using the design build approach, that the designer will actually build the wetland. Usually, there are several outside contractors (grading, planting, seeding, E&S, etc.) retained to implement the project. Sometimes this is done by a general or master contractor. The general contractor subs the work to several smaller specialty contractors.
This is not a bad way to proceed. Quite frankly, it is a rare circumstance when the general contractor even owns any equipment. This is usually rented from a local rental company. Most construction projects are done this way. Think about how a house is built. There are separate electrical, plumbing, framing , roofing, etc. contractors.
So what is the problem with using this model to build a wetland? In theory there should not be a problem if the plans and specifications are sufficiently detailed. More about this in a future post.
The problem comes down to one of the least expensive materials. Oftentimes, there are detailed planting specifications provided to the landscape contractor. The specific genius and species are provided along with plant form (size of container) and on occasion recommended nurseries.
One aspect of the Swamp School is the fact that we also have a wetland plant nursery. As a result, we get sort of an insiders’ view of the mitigation business. A typical call from a landscape contractor would be similar to the following. “Hello, I am bidding a job today at 2 PM (it’s 11 now) and I need prices and availability for several thousand of the most esoteric plants you have ever heard of. I need 10 thousand of this and 30 thousand of that, etc.” The project will be awarded next week.
Given enough time, a quality nursery could propagate just about any common or sometimes special wetland plant. Usually a year is needed for a large contract growing arrangement. Unfortunately, we do not have a year, we have a few days.
Back to the call. “Just give me prices and I will see what I can do.”
The nursery gives the contractor prices and never hears from them again.
Now the assumption is that the contractor did not win the bid. Actually they did. They may have even used the nursery’s numbers. But, the job still starts next week. What did they do?
They called Florida. Florida is one of the biggest wetland plant suppliers in the country. They have the advantage of a year round growing season and almost free labor. Consequently, the local nurseries cannot complete with them on price. The landscape contractor gets the material from Florida and gets to keep the difference in the local price as profit.
Now this would seem to be a legitimate business approach. However, there is one MAJOR sticking point. Almost all wetland mitigation plans require nursery stock to be acquired from local nurseries. This is usually within a couple of hundred miles from the project site. The reason for this is well documented. Many wetland plants are ecotypical . Meaning, that they will not survive or reproduce if the seed is from an area outside the project site ecoregion. Not all wetland plants do this, but many do. Consequently, when a landscape contractor plants material from Florida in a project in Pennsylvania, guess what. It dies and the project fails.
So who is checking? Is there not some provision in the plans that say not to do this?
The short answer is nobody is checking. The Corps relies on the designer and the designer passes this onto the contractor. A contractor who then subs this out to someone else. If the designer does go out to the site, they do not have any contractual authority to demand that the sub to the sub to the sub document where the plants came from. Odds are they would not know anyway because it was ordered by someone in another state.
Do you see the problem? If the designer does take an interest in the project implementation odds are that they will start staring down the barrel of a change order if they make an issue of the plants. So it becomes a don’t ask, don’t tell approach. Hopefully some of the plants will make it. Heads up, they won’t.
If you want to see an even better version of this check out a government contract. The designer may not even be part of the implementation. A project could have been designed 5 years prior and is now just being built. Nobody even knows who came up with the original design.
If a designer has the ability to participate in a meaningful way during construction, you will have a successful project. If it is left to the whim of contracts and contractors you will not. It is just that simple. Don’t look to the Corps for any type of enforcement on this . They will just declare the project a failure and you get to start over.
If you have any stories you would like to share to either validate or dispute this issue, please reply to this email. I would like to post these on our blog.
Why Wetlands Fail – Part II
A couple of weeks ago, I sent out a survey about profit and the wetlands business. A number of subscribers responded with a fairly positive and upbeat message. It is OK to make a couple of bucks in the wetlands business. I thought you would want to know. I found it interesting that a number of respondents to the question were genuinely offended that I would even imply that profit was bad. I didn’t by the way.
The last couple of Swamp Stomp issues have been focused on why wetland mitigation often fails. Is there a connection between failure and profit? It would seem to me that without a profit motive there is no way a project could succeed. Now here is the kick. I am not necessarily talking about money. Even if I was, what is money anyway? It is quite simply a vehicle to exchange goods and services. If ones’ work is valued, money and profit are the natural by-product of good work. So we need to look at why projects fail and why we do not make any money on these same projects.
This is a bit philosophical, but here goes. First we have to agree on what is our role as project designers. The project when constructed is a product of our minds. It is conceived by us and then engineered to meet specific project parameters. But first we must see it in our mind. Too often we are asked to jump right into a project without this visualization exercise. There is no clear singular vision of what the project will be.
So why is this? If I were to ask an architect to design a building there would be a concept phase of the project. The architect would create sketches of the building depicting his vision for the project. It would then progress into various deign phases until engineering drawings were created and the building could then be constructed.
The premise of the building scenario is that using our mind we can create amazing accomplishments. So why do so many ecological sites fail? The reason is simple. We do not believe that we have ability to recreate a natural system that is as good as or even better than the one that was lost. Having participated in numerous agency meetings, the assumption always is that what was lost cannot be replaced and the project will at best be a poor depiction of what was once a great ecosystem. That is the goal of the project. Whether it is stated or not, that is how we start the design of the project. Guess what? That is exactly what we build.
Perhaps we need to recognize that our minds are amazing. There has been nothing we have set our minds to that we have not been able to accomplish. Medical cures, technology innovations, and the like are being discovered every day. Every innovation started with a thought. We need to accept and rejoice in our ability to solve our own problems. We need to ignore the naysayers and get to work. We can build great projects. Imagine success. Think.
The Failure of Mitigation
To begin, mitigation (stream, wetland, buffer, nutrient, carbon, etc.) is an active effort to replace a soon to be lost natural resource. Generally, this is done using either a geographic or tonnage metric. An acre of wetlands will be filled in and two or more acres of wetlands will be constructed to mitigate the loss.
Now this may seem like a laudable effort. However, history has shown that many of the mitigation sites have failed. The benchmark for these projects varies. It is usually some sort of empirical data measurement. Wetlands are usually measured against achieving a certain hydrologic frequency and duration standard (i.e. 5% for the growing season) and a specific planting survivability. For example, if a two-acre mature forested wetland is destroyed a four-acre newly constructed wetland will serve as the mitigation. The wetland will need to remain inundated for approximately 10 days and it will be planted with bare root seedlings at the rate of 320 stems per acre. At the end of 5 years, the site will need to have at least 270 stems per acre and the hydrology will suggest and average of 10 days of contiguous inundation as an annual average.
So if this is accomplished why would it be considered a failure? First, what was lost? The site was a mature system. Bare root seedlings are not going to replace a mature system. Second, what was the site hydrology? The assumption is that all wetlands must be inundated or saturated for at least 5% of the growing season. This is the standard for delineation. However, did anyone actually measure this? Probably not. Third, what functions was this mature system providing? This is almost never addressed. There are some basic percepts that we use, but actual field assessment of the functional loss is not done. Even if it is, how are these wetland functions replaced in the new mitigation site?
Quite frankly, it is not possible to mitigate the functions lost from the mature wetland with an overplanted stormwater management pond. Especially if the functions lost are not even known. The benchmark for success is simply the site holds water and the plants are not dead. Don’t ask questions.
Each of the natural systems that we mitigate provides a number of functions. The key is to identify what functions we are trying to replace or restore. This requires that we establish goals based upon an understanding of what was lost. I recently ran across a vernal pool mitigation project in Virginia that was very successful. The benchmark was whether a certain species of concern would naturally colonize the site. This was a specific goal and specific result ensued. We actually saw the species in the site!
Development in and around these unique natural systems are a fact of life. Therefore it is imperative that we strive for success. It is not possible to quantify each and every function. However, it is possible to identify specific goals and develop a means to achieve these goals. Using broad brush generalized concepts as a benchmark will generate ambiguous results with no way to measure success. We are left with oversized dry ponds with a bunch of dead sticks stuck in them. The key to success is clear, specific and measurable goals. Sort of like life.
The Cost of Failure
The local Raleigh, NC newspaper (The News and Observer) is featuring a series of articles about wetland and stream restoration projects in the state. The short version is best summarized by the title of the first article, “State spends $140 million on faulty water projects.” No pulling punches here.
At issue is the state run “Ecosystem Enhancement Program” known as EEP. This program was set up to expedite highway construction by streamlining the impact and mitigation process. The idea was to identify the anticipated impacts and then implement mitigation ahead of the impacts. It was a great idea then and a pretty good one now. The problem is in the execution of the mitigation projects. There is a serious disconnect between the site selection, design, construction and monitoring. Most of the EEP projects are done by multiple firms. A firm would be hired to find sites, another to design, a third to construct and a fourth to monitor. Oftentimes the monitoring would also include multiple firms over many years.
Two state audits were done in the Fall of 2010. They found that 1 in 4 wetland acres have failed and that 1 in 4 stream feet have also failed. That is quite a lot and should be a major concern to all of the permittees that used EEP for mitigation. Under the federal mitigation rules (33 CFR Parts 325 and 332 and 40 CFR Part 230), a stream or wetland impact must be mitigated. It remains the responsibility of the permitee to ensure that whatever means for mitigation was used is successful.
By using an in-lieu fee program like EEP, the permittee does transfer the mitigation “liability” to the mitigation bank sponsor. The bank sponsor must provide sound financial protections to ensure that the bank is operating as anticipated and that the mitigation put in place is successful. What is not clear at this time is what happens when there are numerous failures like those in NC. Other environmental regulations and case law point back to the permittee for compliance. The RCRA type “cradle to grave” responsibility is more or less a standard in environmental law. This puts compliance back on the permittee despite the contractual agreement with the mitigation bank indicated in the mitigation banking rules. There is also a clause stipulating that it is up to the Corps to approve the credits. If these mitigation banks are not working, how can the credits be approved?
According to the state audit, most of the mitigation failures relate to lack of oversight, projects too far away from the impact area, and little to no maintenance performed to keep the project in compliance.
Over the last decade or so, the State of North Carolina has spent nearly half a billion (with a B) dollars on mitigation projects and programs. Given this expenditure one would expect that we have the cleanest, healthiest natural streams and wetlands in the country. Sadly, this is not the case.
To learn more about this developing story, please check out this N&O article and follow the developing story. The link to this story can be found ==> HERE.
New FREE Online Wetlands Mapping Training
The Fish and Wildlife Service’s National Wetlands Inventory (NWI) is pleased to announce the availability of initial modules of an online Wetland Mapping Training course. NWI is providing the training to encourage and enable mapping partnerships with other organizations in order to increase the amount of current, modernized wetlands geospatial data available to all users. The training is geared towards image interpreters already skilled in GIS, who may need special training for mapping wetlands, to learn how to interpret and classify wetlands, apply the new standards and requirements, or learn tips and tricks (coming soon) to make the mapping more efficient. The training is designed to implement the new Wetlands Mapping Standard and ensure the quality of the data – and training is an effective way to make sure the data are collected accurately from the beginning. Currently only three modules are available, two technical modules are coming soon, and three additional modules on related topics are planned. NWI will continue to provide in-person training to partnering organizations as needed, as well as data verification tools, guidance, and quality control of the data before it becomes part of the NWI layer of the National Spatial Data Infrastructure. You can review or take the training, click here. The training is evolving as we receive feedback. If you want to be part of the process, send comments to FW9_Wetlands@fws.gov . This training was developed in cooperation with the Association of State Wetland Managers, supported by EPA and the FGDC.
Osama, Obama and Wetlands
What could Osama have to do with wetlands? Well, not much or at least not any more.
On the night when Seal Team Six deployed to take down bad guy number 1, a little known press release hit the streets about wetlands. It was dated April 27th, but did not really get distributed until about 2 or 3 days later. By then, Osama was headline news and this “minor” story was not going to see the light of day. Besides, we were all still enamored with the Royal wedding.
The press release is entitled, “Obama Administration Affirms Comprehensive Commitment to Clean Water.” In this document Mr. Obama outlines some major initiatives and changes to the clean water act. These include the following statements.
Promoting Innovative Partnerships
Federal agencies are partnering with states, tribes, local governments and diverse stakeholders on innovative approaches to restore urban waters, promote sustainable water supplies, and develop new incentives for farmers to protect clean water.
Enhancing Communities and Economies by Restoring Important Water Bodies
The Obama Administration is dedicating unprecedented attention to restoring iconic places like the Chesapeake Bay, California Bay?Delta, Great Lakes, Gulf of Mexico and Everglades, investing in action and helping states, local governments and stakeholders find pollution control solutions that are tailored to their specific needs.
Innovating for More Water?Efficient Communities
The Administration is working with policymakers, consumers, farmers and businesses to save water – and save money – through 21st century water management policies and technology.
Ensuring Clean Water to Protect Public Health
The Obama Administration is aggressively pursuing new ways to protect public health by reducing contaminants in Americans’ drinking water. We are updating drinking water standards, protecting drinking water sources, modernizing the tools available to communities to meet their clean water requirements, and providing affordable clean water services in rural communities.
Enhancing Use and Enjoyment of our Waters
The Administration is promoting stewardship of America’s waters through innovative programs and partnerships. These efforts include expanding access to waterways for recreation, protecting rural landscapes, and promoting public access to private lands for hunting, fishing and other recreational activities.
Updating the Nation’s Water Policies
The Administration is strengthening protection of America’s waters and American communities. We are modernizing water resources guidelines, and updating Federal guidance on where the Clean Water Act applies nationwide. The draft guidance will protect waters that many communities depend upon for drinking, swimming, and fishing, and provide clearer, more predictable guidelines for determining which water bodies are protected from pollution under the Clean Water Act. The guidance is open for 60 days of public comment to all allow all stakeholders to provide input and feedback before it is finalized.
Supporting Science to Solve Water Problems
The Administration is using the latest science and research to improve water policies and programs and identify and address emerging pollution challenges.
One of these directives, “Updating the Nation’s Water Policies” has major implications to the business of wetland delineation. If you will recall, in 2006 the Supreme Court heard the Rapanos and Carabell cases regarding what constitutes “Waters of the US.” The Court did not come to a majority decision and the “decision” was sent back to the lower Court. However, the Corps of Engineers interpreted this lack of decision into a Guidance document that has been in use since 2007.
This is where Osama fits in for all of you conspiracy theorists out there. What is being proposed is to incorporate the Corps Rapanos Guidance into the Clean Water Act. There is at least one “minor” problem with this. The Supreme Court was not able to establish a rule of the land regarding waters of the US jurisdiction. The proposed rules are based on this indecision. Do we have a constitutional concern arising from this? Funny how this came out when nobody was watching.
To check this out for yourself go to: EPA Clean Water Guidance
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