Protecting local wetlands is the major responsibility of Harvard’s Conservation Commission, whether the body of water is as big as Bare Hill Pond or as small as a vernal pool. So a May 25 Supreme Court decision about the federal Clean Water Act could have local impact, though the extent of that impact is unclear.
The court case began with an Idaho couple who were adding sand and gravel to a wet area near a lake so they could build a house there. The Environmental Protection Agency said their actions violated the 1972 Clean Water Act and ordered them to stop. The couple—the Sacketts—filed suit against the EPA.
In deciding the case Sackett v. Environmental Protection Agency, all nine Supreme Court justices agreed the Sacketts’ lot was not a protected wetland and the couple had not violated the law. But five of the justices wrote a majority opinion that sharply narrowed the scope of the federal Clean Water Act.
According to that decision, the Clean Water Act protects only wetlands that have a “continuous surface connection” with navigable waters. By this new definition, the federal law no longer covers many ponds, marshes, and other wetlands. Even a sand dune or an artificial berm is enough to make the water on one side protected and on the other side not. Conservation organizations estimate the decision ends protection for 40 million to 60 million acres of wetlands—a third to a half of all the wetlands in the country.
Few of Harvard’s wetlands would meet the new federal standard. But wetlands here are also protected by state and local law. The Massachusetts Wetlands Protection Act covers “any bank, riverfront area, freshwater wetland, coastal wetland, beach, dune, flat, marsh, meadow or swamp bordering on the ocean or on any estuary, creek, river, stream, pond, or lake.”
Moreover, under the state’s home-rule policy, Harvard has its own local wetlands protection bylaw. It is stricter than the state’s, according to Don Ritchie, chair of the Conservation Commission. The Harvard bylaw has an even longer list of watery locations than the state law. And the bylaw says pointedly that many exemptions the state law allows “shall not apply under this bylaw.”
Gaps in wetland protection
Despite those state and local safeguards, however, there is still cause for concern. According to Brad Campbell, president of the Conservation Law Foundation, the state Wetlands Protection Act was designed to work in tandem with the federal Clean Water Act, protecting wetlands that were not federally regulated. Now that the Sackett decision has reduced what federal law covers, Campbell said, there may be gaps in coverage between the two laws.
Harvard’s conservation agent, Liz Allard, said she had not yet received any guidance from the state about the new federal standards. Campbell said the state Department of Environmental Protection will need to assess whether changes to state law are necessary.
Harvard resident Michele Girard, who is education coordinator for the Massachusetts Association of Conservation Commissions, agreed, saying, “Massachusetts is in very good condition generally … but we have some concerns.” In a phone interview, she said the MACC is especially concerned about vernal pools, which are often isolated. Only those over a certain size have state protection. Smaller ones are protected in Harvard but not in all towns. And neither state law nor Harvard’s bylaw protects intermittent streams, she said.
“We should be grateful that we have home rule,” Girard said, as it gives Harvard more control over its own wetlands. As for the Sackett ruling, the justices “need to take wetland science 101,” she said. “… Water doesn’t just move downstream. It moves through the groundwater.”
While the Sackett decision may not have a big impact within Harvard, the effects might be felt close by. Girard pointed out that the major commercial development known as 1414 Mass. Ave., which is currently under debate just across the town line in Boxborough, has wetlands on several sides of its proposed location. Changes to wetlands protection could determine what can be built there.
