Fighting Charges for Philadelphia Wetlands Destruction and Damage

Fighting Charges for Philadelphia Wetlands Destruction and Damage

Wetlands are important, right? They filter pollutants, prevent flooding, and provide habitat for plants and animals. But what exactly counts as a wetland these days? That question got a whole lot murkier after a recent Supreme Court decision that scaled back the EPA’s authority to regulate wetlands under the Clean Water Act. As a Philly resident, you might be wondering – how does this affect me? Could I get in trouble for messing with wetlands on my property? Let’s break it down.

That Supreme Court Case

First, a quick recap of the case that sparked this whole debate. Sackett v. EPA[1] involved an Idaho couple, the Sacketts, who were building a home on land with wetlands. The EPA ordered them to stop construction and restore the wetlands. The Sacketts sued, arguing the EPA overstepped its authority. The Supreme Court agreed, saying the EPA can’t regulate “isolated” wetlands not directly connected to larger waterways.

This was a blow to the EPA’s regulatory power. For decades, they took a broad view of their Clean Water Act authority, claiming jurisdiction over wetlands with only a “significant nexus” to navigable waters[2]. Now, direct surface water connections seem necessary. Justice Roberts wrote:

“The Clean Water Act does not extend federal regulatory authority over all waters; rather, it limits federal power to ‘relatively permanent, standing or continuously flowing bodies of water’ like streams, oceans, rivers and lakes.”

So what’s the fallout here in Philadelphia?

Impacts on Philly Wetlands Protection

The Supreme Court ruling leaves protection of “isolated” wetlands up to the states. Here in Pennsylvania, our state wetlands law is generally weaker than the federal Clean Water Act[3]. Unlike the EPA, the PA Department of Environmental Protection (DEP) requires permits only for larger wetlands over 1 acre. Smaller wetlands can be filled or damaged without state approval.

So if you have a half-acre marsh on your property that’s unconnected to creeks or rivers, the DEP likely won’t stop you from bulldozing it. Be careful though – some isolated wetlands may still fall under federal protection if they have a “significant nexus” to downstream waters. And the Army Corps still regulates tidal wetlands and waterways used for interstate commerce.

Bottom line – it’s now a lot murkier when permits are needed to alter wetlands. The EPA can no longer sweep in with broad Clean Water Act powers. As one expert said, “The decision essentially leaves protection and regulation of most wetlands to the states…”[4]. And Pennsylvania’s protections are fairly weak.

Defenses If You’re Charged

Let’s say you do get hit with Clean Water Act charges for altering wetlands. What defenses could help you fight the allegations?

First, argue the wetlands are “isolated” with no surface water connections to federally regulated waters. The Sackett decision helps bolster this defense. Request evidence from prosecutors on the nexus between your wetlands and downstream waters.

You can also argue the wetlands are too small or temporary to qualify as “waters of the United States.” The Supreme Court said the Clean Water Act is limited to permanent and substantial water bodies. Your lawyer could claim the wetlands fail to meet those criteria.

Additionally, point out if the Army Corps never asserted jurisdiction over your property. The Sackett case said landowners deserve proper notice if their property contains regulated wetlands. Lack of prior Corps determinations could punch holes in the government’s case.

Restoration and Mitigation

If you do get hit with Clean Water Act violations, expect penalties and requirements to restore the damaged wetlands[5]. Restoration means recreating the original hydrology and planting native vegetation. The EPA will want to see the wetlands returned to their prior condition, which takes extensive time and money.

You may have to implement mitigation too – things like creating new wetlands elsewhere to replace damaged areas. The EPA often makes violators pay for mitigation banking, which involves restoring wetlands through purchases of “credits” from wetlands banks. It’s an expensive process.

Bottom line – illegally filling wetlands brings massive headaches. You’ll pay fines, legal fees, restoration costs, and mitigation expenses. It’s a financial swamp you don’t want to wade into.

Tread Carefully in this Murky Area

The Sackett decision muddied the waters on wetlands regulation (pun intended). With the EPA’s powers curtailed, isolated wetlands lose federal protection. But some wetlands may still meet the “significant nexus” test. And Pennsylvania state laws remain in play too.

If you want to alter wetlands in Philly, tread carefully and consult an environmental attorney. Make sure to get any necessary permits, or you could face EPA enforcement. Illegally filling wetlands leads to big fines, restoration costs, and criminal penalties. Maybe just leave that marshy area alone, okay? Wetlands provide important benefits, so let’s try to protect these natural sponges whenever we can.