Posted on June 7, 2023
A recent U.S. Supreme Court decision limiting government protection of certain wetlands could have a significant effect on what can and cannot be removed, filled in or built upon in Galveston County.
With low-lying land masses and large, circulating bodies of water, much of the landscape of Galveston County falls under federal jurisdiction protecting wetlands, according to the Clean Water Act, established in 1972 and revised several times since.
The U.S. Army Corps of Engineers Galveston District, guided by the federal Environmental Protection Agency, grants permission to build on or fill in wetlands through a permitting process that requires mitigation when wetlands are unavoidably disturbed by, say, construction of a road, a subdivision or a single house.
The Supreme Court’s new interpretation, passed May 25 by a vote of 5-4 in Sackett v EPA, limits federal protection to those wetlands directly contiguous to bodies of water legally considered Waters of the United States. Wetlands that lie farther inland, like some of the county’s prairie and pothole formations, previously protected by federal law, will no longer be considered jurisdictional wetlands and could be built on without a permit when the new rule is implemented.
“Basically this means developers and others will be able to fill a lot more wetlands across Galveston County,” said Bob Stokes, executive director of the Galveston Bay Foundation. The foundation is a conservation nonprofit dedicated to the good health of Galveston Bay waters.
“I think it will make an immediate difference in that there won’t be any required mitigation for a broader spectrum of wetlands, and that makes it easier to move forward with a project,” Stokes said. “Projects lined up to get mitigation permits will say they don’t need to apply anymore.”
Those wetlands subject to development under the new interpretation of the law serve key purposes in protecting water quality and guarding against flooding, Stokes said.
They may be isolated, without constant water flow through them, but they still function biologically as wetlands, absorbing water and providing filtration of water draining down to the coast, he said.
“Without those wetlands, water flows more quickly down to the coast and filtration is limited,” Stokes said.
PROTECTION OR OVERREACH?
Others view the Supreme Court decision as a welcome change in government oversight perceived in many cases to be excessive under established rules of the Clean Water Act.
U.S. Senator Ted Cruz, without mentioning either wetlands or water quality, tweeted after the vote: “The federal government has grown too large and become too involved in our lives and businesses. This decision is a big step in the right direction.”
The decision could open parcels of island land to development without the need for wetlands consultancy, said Galveston architect Michael Gaertner, whose firm provides design services, planning and project management of real estate and construction projects.
“If I’m working with a developer and they say, ‘I want to buy a piece of land,’ I say ‘Stop right now and let’s look and see if it’s got wetlands on it or not,’” Gaertner said. If consultants identify wetlands on a property, the permitting process to build and mitigate can cause sometimes prohibitive delays and expense.
But with the Supreme Court decision requiring that, to be protected, wetlands must adjoin a body of water directly and above ground, not underground and from a distance, some parcels on Galveston Island will now be considered fair game for dredging, filling or building.
“There’s a lot of stuff on Galveston Island that will no longer require a permit,” Gaertner said, adding that he referred to smaller pieces of land, not large swaths of acreage or places where fish and shrimp were spawning and hatching. Coastal wetlands encircling Galveston will remain protected because of proximity to water, providing critical wildlife habitat for marine life.
And while he appreciates the positive impact of the Clean Water Act overall on water quality and protection of key wildlife habitat, Gaertner said, interpretation of what constitutes a protected wetland on the island has often been too restrictive.
“I’m thankful for all the good that’s come from it,” he said. “But in my opinion with respect to how the rules were interpreted in Galveston, there’s been a lot of overreach.”
WHAT HAPPENS NEXT?
Texas Parks & Wildlife Department in 2003, in a letter to the Environmental Protection Agency, urged the federal government not to limit jurisdictional oversight of non-contiguous wetlands, arguing that protected status should be based on wetlands’ function of keeping pollutants out of downslope water, not on whether they are visibly connected to navigable waters.
Since then, the definition of what constitutes a protected wetland has been argued multiple times in the courts, culminating in the May 25 Supreme Court decision.
The Environmental Protection Agency and the Corps of Engineers have issued statements saying only that they are looking at the decision and considering what next steps will be taken. How quickly jurisdictional designations might occur and whether the White House will strike back with an executive order remain to be seen.
“The good news for some other states, but not Texas, is that they have regulations protecting wetlands at the state level,” Bob Stokes said. “We don’t have that extra layer of protection.”
Whatever happens, the fate of wetlands, hugely diminished in acreage over the past century across the United States and in Galveston County, remain in the balance.
A recent Supreme Court decision limiting government protection of certain wetlands could have a significant impact on what can and cannot be removed, filled in or built upon in Galveston County.
With low-lying land masses and large, circulating bodies of water, much of the landscape of Galveston County falls currently under federal jurisdiction protecting wetlands according to the Clean Water Act, established in 1972 and revised several times since.
The U.S. Army Corps of Engineers Galveston District, guided by the federal Environmental Protection Agency, grants permission to build on or fill in wetlands through a permitting process that requires mitigation when wetlands are unavoidably disturbed by, say, construction of a road, a subdivision or a single house.
The Supreme Court’s new interpretation, passed by a vote of 5-4 in the Sackett v EPA case last week, limits federal protection to those wetlands directly contiguous to bodies of water legally considered Waters of the United States. Wetlands that lie farther inland, like some of the county’s prairie and pothole formations, previously protected by federal law, will no longer be considered jurisdictional wetlands and could be built on without a permit when the new rule is implemented.
“Basically this means developers and others will be able to fill a lot more wetlands across Galveston County,” said Bob Stokes, executive director of the Galveston Bay Foundation. The foundation is a conservation nonprofit dedicated to the good health of Galveston Bay waters.
“I think it will make an immediate difference in that there won’t be any required mitigation for a broader spectrum of wetlands, and that makes it easier to move forward with a project,” Stokes said. “Projects lined up to get mitigation permits will say they don’t need to apply anymore.”
Those wetlands subject to development under the new interpretation of the law serve key purposes in protecting water quality and guarding against flooding. They may be isolated, without constant water flow through them, but they still function biologically as wetlands, absorbing water and providing filtration of water draining down to the coast, Stokes said.
“Without those wetlands, water flows more quickly down to the coast and filtration is limited,” Stokes said.
Protection or overreach
Others view the Supreme Court decision as a welcome change in government oversight perceived in many cases to be excessive under established rules of the Clean Water Act.
U.S. Senator from Texas Ted Cruz (R), failing to mention either wetlands or water quality, tweeted following the vote: “The federal government has grown too large and become too involved in our lives and businesses. This decision is a big step in the right direction.”
Galveston architect Michael Gaertner whose firm provides design services, planning and project management of real estate and construction projects says the decision could open parcels of island land to development without the need for wetlands consultancy.
“If I’m working with a developer and they say, ‘I want to buy a piece of land,’ I say ‘Stop right now and let’s look and see if it’s got wetlands on it or not,’” Gaertner said. If consultants identify wetlands on a property, the permitting process to build and mitigate can cause sometimes prohibitive delays and expense.
But with the Supreme Court decision requiring that, to be protected, wetlands must adjoin a body of water directly and above ground, not underground and from a distance, some parcels on Galveston Island will now be considered fair game for dredging, filling or building.
“There’s a lot of stuff on Galveston Island that will no longer require a permit,” Gaertner said, adding that he referred to smaller pieces of land, not large swaths of acreage or places where fish and shrimp were spawning and hatching. Coastal wetlands encircling Galveston will remain protected because of proximity to water, providing critical wildlife habitat for marine life.
And while he appreciates the positive impact of the Clean Water Act overall on water quality and protection of key wildlife habitat, Gaertner said, interpretation of what constitutes a protected wetland on the island has often been too restrictive.
“I’m thankful for all the good that’s come from it,” he said. “But in my opinion with respect to how the rules were interpreted in Galveston, there’s been a lot of overreach.”
What happens next
Texas Parks & Wildlife Department in 2003, in a letter to the Environmental Protection Agency, urged the federal government not to limit jurisdictional oversight of non-contiguous wetlands, arguing that protected status should be based on wetlands’ function of keeping pollutants out of downslope water, not on whether they are visibly connected to navigable waters.
Since then, the definition of what constitutes a protected wetland has been argued multiple times in the courts, culminating in last week’s Supreme Court decision.
The Environmental Protection Agency and the Corps of Engineers have issued statements saying only that they are looking at the decision and considering what next steps will be taken. How quickly jurisdictional designations might occur and whether the White House will strike back with an executive order remain to be seen.
“The good news for some other states, but not Texas, is that they have regulations protecting wetlands at the state level,” Bob Stokes said. “We don’t have that extra layer of protection.”
Whatever happens, the fate of wetlands, hugely diminished in acreage over the last century across the United States and in Galveston County, remain in the balance.
