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By most accounts, it was a tough day for EPA in the Supreme Court on Monday. Although the Sacketts got their share of skepticism from the Justices, the EPA really took it on the chin during the oral argument of the Priest Lake wetland case.


KEA joined several other conservation organizations in a brief 
to point out that the Sacketts had ample opportunity to work with EPA and the Corps of Engineers to avoid the compliance order, and unnecessary expense, had they chosen to do so.

The issue before the court was whether a “compliance order” issued by EPA to the Sacketts for a Clean Water Act violation is immediately reviewable in a court. The Sacketts, who claim that their property has no wetlands and are therefore not under Clean Water Act jurisdiction, argued that there is no easy way to challenge EPA’s compliance order determination that a wetland exists. Moreover, they say, tough Clean Water Act penalties can accrue at a substantial rate. EPA, meanwhile, argues that the Clean Water Act doesn’t provide for an early hearing. Besides, the Sacketts would eventually get their day in court one way or another, and if EPA couldn’t prove their case, there’d ultimately be no penalties.

At the oral argument, the Supreme Court seemed openly skeptical about the compliance order. Rather than viewing it as a notice, or a warning, which would be followed by an EPA enforcement action, the Justices seemed inclined to consider it an action in and of itself. As such, they hinted that it was a “final” agency decision which should be subject to Court review.

However, Justices were also skeptical of the Sacketts’ argument that they should receive a hearing regarding the compliance order, but also if they were to lose on the wetland jurisdiction issue in the early hearing, they should get another chance to argue their case in a later enforcement case brought by EPA. In other words, EPA would have to prove their wetland case twice.

All of which goes to the real importance of the case. Enforcement of the Clean Water Act is difficult enough for EPA, which is already stretched thin. Compliance orders are designed to be a tool to shortcut formal proceedings – to provide violators with a less formal (and usually less expensive) route to compliance, without going to court and assuming all the risks and expenses that entails. If the Supreme Court finds that EPA’s compliance orders trigger additional hearings or other formalities, it will seriously impact the way Clean Water Act enforcement gets done.

Court watchers and EPA watchers are already speculating as to what EPA might do if the Supreme Court rules for the Sacketts. One guess is that the compliance orders may become less “order-like” and more “warning-ish.” A mere warning, everyone agrees, is not reviewable in Court. Would things be significantly better for the Sacketts if they had received a warning about a Clean Water Act violation as opposed to the compliance order they received? Doubtful. It could, however, delay the actual enforcement of obvious violations, which would also delay cleanup and restoration efforts.

Another guess, and most worrisome to conservation groups, is that EPA will abandon administrative processes and go directly to enforcement actions filed in court. Because of the complexity and expense of doing so, EPA might simply do less enforcement – which could be devastating for the country’s waterways.

Congress, of course, could fix all of this by clarifying what constitutes a wetland, and clarifying procedures. But that isn’t likely to happen any time soon with the current Congress. The Supreme Court’s decision is expected sometime this spring.

 

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We’ll probably have more on this later today or tomorrow, but for those interested in how it went at the Supreme Court today, our friends at Center for Justice have posted the transcript of the oral argument. (Spoiler Alert: the EPA seemed to have a pretty tough day.)

Regardless of the outcome of the case, and regardless of how you feel about wetlands enforcement, the EPA, or anything else — the nation’s highest court is an awesome and impressive thing.  We’re extremely honored to take part.

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This morning, the U.S. Supreme Court agreed to allow filing of an amicus brief in the Sackett v. EPA case which will be argued at the Court on Monday morning. (The Supreme Court’s order (pdf) is here.)  The brief is being filed on behalf of NRDC, the Waterkeeper Alliance, Idaho Conservation League, Idaho Rivers United, Lake Pend Oreille Waterkeeper, and Kootenai Environmental Alliance.

 

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The Supreme Court wetland case involving a Priest Lake lot will be heard by the Court on Monday morning, and the legal and environmental pundits have been previewing the case. The Court has yet to rule on whether a brief by conservation groups will be filed, but a ruling could come as early as tomorrow. In the mean time, here are some of the more impressive previews:

The authoritative and well-respected SCOTUS blog has its preview by legal reporter Lyle Dennison here.

For the Center for Progressive Reform, law professor Nina Mendelson describes why the case is important to environmental enforcement and suggests reforms to avoid problems in the future.

Huffington PostWashington Post and the LA Times covered the issue recently.

Our friends (and hopefully co-friends-of-the-court) at Idaho Conservation League took note with this post.

UPDATED 1/7:  NRDC has a superb post here.

 

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It’s the end of 2011 and so we take quantitative stock of what we’ve accomplished in the last 52 weeks. The following are the most-viewed blog posts of 2011, which are actually quite representative of the issue work we’ve done over the last year. When it comes to North Idaho conservation controversies, from Bonner County craziness to messes in the Coeur d’Alene basin, from Tubbs Hill trails to the trees on the Dike Road, you can count on KEA to be in the middle of it.

For 10th place, remarkably, an exact tie:

10. the heartwarming Homeless Osprey Homeless No More and less heartwarming  The Sacketts’ Wetland Mapped

The rest of the top 10:

9. Coeur d’Alene City Council Signals Stronger Stand on Dike Road Trees

8. Bonner County Approves Priest Lake Subdivision

7. New “Property Rights Council” Brings Messy Ideological Extremism to Bonner County Government

6. New Mini-Megaloads Proposed To Be Routed Through Coeur d’Alene on Hwy 95

5. Wheelchairs on Tubbs Hill

4. Coeur d’Alene Basin Pipeline Spill?

3. January Flooding May Have Caused the Worst Coeur d’Alene Basin Contamination in Years

2. What The Priest Lake Wetland Case Is Actually About

And not that surprisingly, out top post for 2011 is:

1. Saving the Dike Road Trees   

But in an important footnote, it turns out that the blog post that actually got the most hits in 2011 dates from December 2009 and is therefore disqualified from this end-of-year list.  Showing the immense power of search engines, our timelessly informative posting about the legal status of Woodsy the Owl remains undefeated — the article, “The owl is required to be fanciful and must wear slacks,” and consequent downloads of the ridiculous public-domain illustration of Woodsy Owl, again got more views in 2011 than any other KEA blog post. However, for whatever reason, the search engines stopped sending so much Woodsy Owl traffic in mid-summer. Evidently, some other web presence (Wikipedia, we think) is now the chief authority for all things Woodsy.

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A generous member has offered to match end-of-year contributions to KEA, dollar for dollar, up to $5000. For the next week, your donation goes twice as far. So here are the top ten reasons why you should click over to our nice new website and donate today.

1. Tubbs Hill and Cougar Bay. KEA is the leading defender of our local jewels. This past year we defended Tubbs Hill from unnecessary intrusion and we saved Cougar Bay for habitat and quiet wake-free recreation.

2. Who else will save the Dike Road Trees?

3. 40 years. We’re the oldest non-profit conservation organization in the State of Idaho. Next year, 2012, will mark our 40th anniversary. Help us kick off the next 40 years.

4. Tax deduction. We sometimes forget to remind people, but we are a charity organized under section 501(c)(3) of the IRS code, which means your donations to KEA are tax deductible. And tax season is coming up.

5. Board and Staff. We got a truly talented and dedicated team, and we’re really good at what we do.

6. Who else is calling out the nonsense in Bonner County?

7. Community Roots. Our successful local food program is expanding every year. Our first-in-the-region charitable CSA, and our local food share system are delivering local fresh food to families who need it.

8. Effective and Efficient. We are, out of budget necessity, a scrappy, low-overhead, grassroots, volunteer-dependent organization. Very little of our budget earmarked for fundraising expenditures and we hope to keep it that way.

9. We do the work so you don’t have to. There are so many meetings, hearings, and events to attend. There is so much research to do, comments to write, and phone calls to make.  As the grassroots community voice for all things conservation in North Idaho, we are tireless, principled, and wholly dedicated to our mission “to conserve, protect and restore the environment in North Idaho.” Because that’s what you’d expect.

10.   Our community depends on us, but we depend on you. Our natural and scenic environment and our beautiful sense of community is what makes this such a great place. It is all very much worth defending.  As you consider your end-of-year contributions, consider giving generously to KEA.

 

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‘Twas the week before Christmas and all through Bonner County, a lot of creatures were stirring… because, well, both the Bonner County Commissioners and the Property Rights Council were both still holding meetings. Indeed, this week, the Bonner County Commissioners have an attack on caribou habitat scheduled, and the Property Rights Council will be discussing how to eliminate drinking water protections for county water supplies.

Monday night, the Bonner County property rights council promises a “Commencement of hearings on proposed watershed control ordinance.” In the meeting agenda (pdf), the chairman describes the ordinance as “a proposal to lay the foundation for new county wide compulsory controls on private lands for the benefit of public water system source water quality.”

Then, in a procedure typical of the PRC so far, the Council proposes to have a “discussion/decision” of how exactly the hearing will be conducted, after the “commencement of the hearings.” According to the proposed hearing process, the PRC “shall take testimony” on a specific sequence of subject matter topics, also noting that “The PRC places the burden of proof for new public controls on the proponents of public control. The Proponents must show public controls are necessary and must show that private alternatives are not likely to provide the necessary protections.” It is not entirely clear, however, why proponents would bother to participate in such a charade.

Meanwhile, on the caribou battlefront, the Bonner County Commissioners will attempt Tuesday to monkeywrench the U.S. Fish and Wildlife Service designation of critical habitat for the endangered Selkirk woodland caribou. With an overwhelming portion of the critical habitat on government-owned upper-elevation backcountry lands, and with none of the habitat on developed private lands, the Commissioners’ fit of pique appears to be mostly a knee-jerk reaction to anything federal government related.  The Commissioners are evidently demanding that the federal government “coordinate” with the county on the habitat designation where it might conflict with local land use priorities. Of course, the County’s own comprehensive plan acknowledges the caribou habitat, and most of the critical habitat land is already federally-owned, so it isn’t entirely clear where the local land use conflict is.

Whatever it is in the Bonner County government’s egg nog, we’ll pass.

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