Intro - 00:00:05:
Hey everyone, welcome to the Ecobite Podcast, where we will be diving into topics around the environmental industry. If you'd like more context to our conversation and or a crash course on the topic at hand, please view the Ecobite video recording before getting started. Either way, enjoy.
Liv - 00:00:40:
Hello everyone, my name is Liv Haney, Product Manager for Ecobot, and I'm joined by my co-host Chris Fleming, and our guest Fred Wagner. Fred, thank you so much for your presentation and discussion on the Sackett vs. EPA.
Fred - 00:00:53:
Thanks very much, looking forward to our discussion.
Liv - 00:00:55:
Yes. All right, you said this, this is a debate that's been going on forever for more than 35 years. This lack of clarity and lack of certainty. There's four separate attempts. In my experience, limited, of just dealing with Supreme Court rulings, how did we get to four separate cases that have reached the Supreme Court? How are we getting up to the highest court with a waters ruling? And how has precedent not been able to be set, or how have courts not deferred to precedent?
Fred - 00:01:32:
Well, I think it starts with the law and it starts with what Congress said and did not say. The only reason you go back and forth on legal cases is if there's some legitimate dispute or lack of understanding about what Congress meant or didn't mean when it writes a law. And with all due respect to the folks in Congress, and I'm sitting at my desk, if I look out the window I can see the Capitol Dome right down the street. With all due respect to them, they aren't necessarily the best at writing laws that tell you exactly what they mean. And so when you have a principle that would seem to make sense, when you're regulating waters in the United States. You read the rest of the statute and the rest of the statute addresses waters in different ways. So. just inherently it wasn't clear right on his face what was meant by the scope of that regulatory authority. And so then you dig a little bit, you dig into the legislative history of the bill and you read the debates and whatnot, and you're going to find enough ammunition for any interpretation of the phrase when you go into those sorts of things as well. So you have disputes because A, Congress isn't necessarily the clearest when they... right there, Liv. B, you have disputes because lo and behold, the issue that's relevant to the definition of wars in the United States isn't clear on the ground either. And when Congress writes the Clean Water Act. They weren't necessarily thinking about prairie potholes. They weren't thinking about ephemeral streams. They weren't thinking about floodplains and this and that. But sure enough, when you get out onto the ground, people such as yourselves say, wait a minute, water features come in all sorts of shapes and sizes. And so it became... series of ongoing debates, litigation, or is this particular spot regulated? And the facts surrounding each particular spot was different. Lack of clarity by Congress, second, a reality of varying facts and circumstances on the ground. And then three, the reality that the enforcement of the Clean Water Act is done by an agency that does not speak with one voice. The Army Corps of Engineers has district offices around the country, and for years and years and years, what's the phrase, balkanized. It's views that it's a balkanized system of enforcement. Because what you heard from the LA district, you might not have heard from the Philadelphia district. In fact, I'm guaranteeing you that you didn't hear about it. And that was a cultural thing, because these district engineers operate very independently and they don't listen to headquarters for your particular guidance. So you put all that together, Liv, a statute that may not be clear, technical and really environmental issues that create various facts and circumstances, and then an agency that doesn't necessarily enforce something consistently. Voila! Multiple court cases and multiple different variations on the theme. And the court, as it considered all these cases, at some point, Justice Roberts, in one of the rulings flat out begged. I mean, he just wasn't cajoling or hoping. He begged the agencies, please, please, I hope you're going to come out with some regulations that solve this. Right. I hope you do that. Because the agencies just, they really didn't. They issued guidance, issued general rules, manuals, but it's still, it was almost done on a case-by-case basis. And in fact, that's one of the things that really ticked off Justice Alito. You know, he really hated that. He said, wait a minute. How do you tell the public, the citizens we'll let you know when we see it. You may not know what a war in the United States is, but we'll go out, we'll check it out, we'll do some tests, and then we'll tell you. He hated that. And so that's another way of explaining why there's been so much litigation in cases that have gone up and back and forth to the court so many times, because this has been over the decades something that's been reviewed and considered by the agency on a case-by-case basis. And that's never been good for certainty.
Liv - 00:06:16:
Go ahead, Chris.
Chris - 00:06:17:
Yeah, so I'm a Senior Solutions Engineer here at Ecobot and previously a consultant for over 20 years. And so I've had to live through the evolution, at least since the Rapanos and Carabell cases. And so I've seen it evolved a great deal during that time. And. You know, one thing I find that's interesting about this ruling is anybody that studied any natural sciences knows that. It's not black and white. It's gray. You know, wetland boundary can be debated. You know, it's. I feel like this ruling, what they tried to do is say, this is black and white. Like they tried to say continuous surface water connection and difficult to determine where the water ends and the wetland begins. They're trying to make it black and white, but I see so much vagueness in the rolling that even though they're coming up with a guidance document, there's still much debate to be had once that guidance comes out.
Fred- 00:07:23:
I think you're right and there will be continued legal disputes, I think. As I said, when the regulation comes out, there's going to be a tussle over that. But then on any particular project, any particular permit application, there certainly can be more debate and discussions. In particular, it doesn't have to be the Sacketts. They'll finally get to build their house, we think. But some other property owner is going to say, hey, wait a minute, I don't think I need a permit for this. You made this ruling and they're going to challenge it. The question is, how are those disputes going to mature and are we going to find over time at least some measure of, if not consistency, at least some trends, some predictability, right? And I think. I think people have given up, Chris, for certainty. I think that the search for that is... It's like the search for the Holy Grail.
Chris- 00:08:27:
But and then also let me flip it on its head. Are you aware of any lawsuits where people have? sued the federal government. for allowing waters of the US to be impacted.
Fred - 00:08:41:
You know, there are citizen supervisions in the clean water act that allow advocacy groups, you know, local citizens to say, Hey, wait a minute, you, you did something in error here. So yes, I'm aware of those types of things. And, you know, yeah, I think that the rhythm of environmental law generally is such that you live through an era where the government done a lot. And then people react to it, like the governors of the states that challenge the regulation. And then you live through an era where the government done little and it's deregulation, right? And then the citizen groups, the advocacy groups, try to fill in the breach. They try to jump in and try to do some stuff. So absolutely, Chris, I think that if this case and the, you know, most people view it as a much more restrictive interpretation of what will be jurisdictional and what will be protected under the act, If that's true, you're absolutely going to see a bunch of advocacy groups trying to step in to, you know. mandate more protection if they think their protection has been lost. The other thing that we haven't talked about yet, and I'm wondering if you agree, based on your relationships and work in individual states, is that I believe that the states now are going to step in big time. Again, which is of course ironic because over the years people have been saying, oh, we need a firm definition of voters so that there's certainty and now they have this definition and what's going to happen is the states you're open to all different things and so rules to be depending on what state you're going to be in and where I live in Maryland, there's an existing statute that's pretty strong in terms of title and coastal resources. I could see under the current governor that there could be greater regulation and perhaps even a movement to even strengthen that law. In other states, ironically maybe even red states, but that have a tremendous amount of these coastal and wetland resources that are important to protecting its coastlines, even they may get involved in surprising ways that may provide additional protections that are important to their basic infrastructure and their population centers. Think Louisiana, think North Carolina and stuff like that. It isn't necessarily so that they can say, hey great, that's less protected, let's go, because they're aware of some of the realities of harm that could happen if some of these resources are not protected. So you're going to see a whole range of responses from the states if they feel that, wait a minute, resources Maryland around the Chesapeake Bay may be under threat, they go more. You know what the rule is, states can make rules that can be no less strict than the federal rule. We can be more strict than the federal, but they can't be any less. So if a state wants to go above and beyond for a whole variety of legitimate reasons, they can do it. And I'm predicting there's going to be at least a dozen states that'll take up that invitation and that's going to create a whole bunch of other issues to try to track different rules in different places.
Liv - 00:12:01:
That's been my experience for sure. I worked for a consulting firm that did nationwide projects. Definitely working in states like Massachusetts and Connecticut and New England, there's some very strict rules. At the county level, the state level and different conservation districts, there's all kinds of stuff. Then in some states, there's very little regulation and they just defer to federal. I'm very interested in the state-by-state versus federal. We've seen that Florida has taken over control of their wetlands and it hasn't gone very good. There hasn't been a lot of progress that's been made. I think that the regional, from a science perspective, the regional characteristics make a big difference though. So think about even way back when trying to determine water rights. The discussion of water rights has been a question mark in some cases and it's divided between the country because water is more readily available in some places than others. So it doesn't really make sense for someone in Washington DC or in New York or Connecticut to be making rules for Nevada or Utah where the environment's completely different. So there can be some benefits, but again, when you come to interstate waterways, when you come to something like the Colorado River that has a lot of implications downstream. I definitely see the area of concern.
Fren- 00:13:42:
They say that's obvious. Those are navigable waters, clearly jurisdictional. Don't worry about that. I think what people would say is that what we are worried about are those lands that link the obvious navigable waters to these other water features. That's the thing that people are most worried about.
Liv - 00:14:05:
Well, and it's less not necessarily worried about the river itself, but about maybe not so specific adjacent wetlands or things that are connected by, I mean, underground waters in a lot of cases you're carrying pollution in or sediment.
Fred - 00:14:22:
Out of the vances of the significant. That's just test.
Liv - 00:14:25:
Yeah, yeah.
Fred - 00:14:26:
So that was the basis for it. They said, look, you know, the elbow bones connected to the hip bone. From an environmental standpoint, that's what so you have to just describe that. The problem that the majority had was that in many instances, that's not easy. And so you're a property owner looking out on your land, and you see this, you know, And, you know, the majority in Sackett has said, you know, it really stinks that in order to determine whether the government has influence on your land. You have to hire one of you guys. to let them know what the hydrological connection is and so forth and you just can't know it by seeing it and that also seemed a little bit unfair to the majority. The problem with that of course is... It's that's true that sometimes you just don't know and you need to do that a little bit of investigation and and and your point live I think is well taken which is the reason that you know wetlands became Uh an important feature of the clean water act the reason that a Republican President came up with the concept of no net loss of wetlands wasn't democratic republic. It was the Republican President the first George Bush came up with that concept under his leadership and his EPA the reason they came up with it is for the the exact reason that the the features of those types of wetlands also influence overall water quality health to traditional navigable waters. They just do. And so that's where that whole came from, right? So you have a the majority saying that I'm trying to balance the certainty that a landowner has. And then you have even a conservative justice like Justice Kavanaugh. Who was in the dissent? Justice Kavanaugh was in the dissent. He said, you know, wait a minute, you know, how are we now as judges becoming the arbiters of what's regulated or not. Where do we have the expertise to do that? Why are we now making this decision? when it's clear that from a technical perspective, from an environmental perspective, that there are these issues, it's clear that they exist. But now we're in the business of doing that. We're the Supreme Court, we're not the EPA. And that was from Justice Kavanaugh. So that was one of the interesting and surprising elements of the second ruling.
Liv - 00:17:00:
Yeah, you mentioned this a couple of times and I want to, I'll play the straight man here and try and get a layman's definition. Talk to me about traditional navigable waters. What are they? How did they get that rule or that title? How does something become a traditional navigable waters?
Fred - 00:17:20:
Well, I mean, the origin of this concern over what is a traditional navigable water came from, rapinos, and just the scalia. And just the scalia basically said if you could float a boat in it. That's navigable. That's what it means. And there was, you know, folks even on this court, I think Justice Thomas was one, you know, perhaps, who said, Yeah, That's it, you want to clear test? That's what navigable is. And I think even Justice Alito felt a little bit wary of making it that severe. And so traditional navigable waters became the traditional sense of rivers and streams and oceans and things like that, that from the sense of the Clean Water Act and the original definitions, that's where it would fit. So you can go back to the law. That's what it was. And I think the reason that there's a demarcation between these traditional waters and these other regulated waters was because of the hydrological connections that you described earlier, which is, you know, there's clearly some places where you're not going to be floating a boat. It's wet, marshy, damp type things, but you know, there's an indistinguishable connection between those and the river and the bay and the ocean and things like that. And that's why the court laid out that definition. In an effort to explain the intermediary resources that were going to be covered, it said, well, we all know that what those are, meaning the traditional waters. So that's why they wanted to define those in order then to define the scope of jurisdiction for those intermediate waters that were going to be waters in the United States. So that's why it was important to the court to lay that out because you can't define something that's indistinguishable from another thing unless you all find that other thing.
Liv - 00:19:17:
Yeah. Yeah. Are those, do those differ from section 10 and that section 10 waters are the ones that previously had commerce off of them or on them or is that?
Fred - 00:19:27:
No, no, it's a really peculiar trick to be more like it.
Liv - 00:19:30:
Okay. Okay
Fred - 00:19:31:
You'll make things more complicated.
Liv - 00:19:33:
Yeah. I just want to know it all. All right, Chris, what were you going to say?
Chris - 00:19:37:
Yes, I just want to bring it back to what you were talking about with states being such important players now. Let's say this rolling sticks and reduced regulation of wetlands and waters. I know there's like 25 or 26 states with more rigorous regulations than, you know, the federal government. I saw where the state of Michigan, I think it was today, came out with a statement just reassuring the people in Michigan that we are, and we continue to protect these resources, even, you know, in light of this ruling. But then, you know, also when you come to, you know, where I was at in Tennessee, we had extreme regulation. Tennessee is, has very progressive water rules considering. the politics of the state at this time. But then you come to North Carolina. And we have a farm bill that was passed by the legislature. The governor vetoed it and now it's back in front of the legislature and it reduces regulations. So do you foresee attacks towards, you know, these state regulations in some environments?
Fred - 00:20:58:
A hundred percent, I do.
Chris - 00:21:00:
Yeah.
Fred - 00:21:01:
And so the question is going to become, what's the thing that the state, the governor, the legislature are trying to protect? Is there a stress on agriculture? Is it stressed on poultry or animal feedlots and stuff like that? What is it that they're trying to protect and where do they think the threat is of additional regulation of these water features, right? I mean, one of the things that why I'm a little bit dubious, Chris, that, you know, 50% of protected waters are off the books. The reason I'm a little bit dubious of that is that I don't think that there is this terrible threat that people are going to fill in every inch of those type of waters. And again, I know some people will and whatnot, but there's just too many things that are going on in the world around us. from beach homes being washed into the ocean to storms creating greater flood surges and storm surges into communities and so forth. There's just too much of that for irrational developers, business people, property owners to say, yeah, that doesn't matter. That's not a water, by gum, I'm going to build my fill in the blank here.
Chris - 00:22:31:
So speaking to that, one thing that I saw, you know, in especially in the last 10 years of being a consultant is you see a lot of municipalities and you know they got MS4 obligations and. And what I was seeing is the way that they do it is they're like, we don't regulate the wetlands or the streams, that we regulate the buffers. But you can't get to the resource unless you impact the buffer, but you know, it was. You know, in the city of Nashville, you know, I would, you know, pretty frequently tell clients like, I can get your core permit. I can get your state permit. You're not getting a variance. And so I think the municipalities could also play a strong role in this.
Fred - 00:23:20:
That's absolutely true and I think that's consistent with my sense that, you know, although I agree that what's protected is less. I may disagree with some environmental groups that talk about the intensity and the scope of the threat. Because there are some other checks and balances, there are some other rules in play, and the market also works in strange ways too. I mean, if somebody says, hey, I got this great idea for a beachfront resort or this waterfront resort, are they going to be able to insure it? Could they even get it insured? And that's going to be a major disincentive to develop in some of these lands and whatnot. So you end up with a subset of a subset of water features that really are the subject of this debate over many, many years. That you're prairie potholes and you're a family tree that only fell up every now and again or this type of thing. In some ways, if that's where we end up, I almost think that's a manageable level of uncertainty. You see what I mean? I just couldn't believe for a moment that, Katie bar the door, everybody go find your nearest wetland and fill it.
Liv - 00:24:48:
Yeah.
Fred - 00:24:48:
I just don't, I just don't see that happening for all the reasons that we have just discussed. I think there's. real disincentives to do that to a certain extent. But if you're in Oklahoma, I'm not picking on Oklahoma, but if you're in Oklahoma, there's no water anywhere near, and there's a damp area. That's no longer going to be jurisdictional.
Liv - 00:25:10:
Mm-hmm.
Fred - 00:25:12:
And from an environmental perspective. How much do we care about that? I mean, part of this discussion, right, that the advocates would say, you care about everything, it all matters because it goes to groundwater and that's all important. But some other folks may say, Let's keep our focus on these areas that are. the ones that are truly contributing in a big way to the things that we need. So that's all going to play out. I mean, it's going to take years to know what this really means because it's going to be hard to count the number of permits that aren't needed. You know what I mean? How do you count that? How do you count the number of permits that would have been filed but now that aren't? That's really hard to know.
Chris - 00:26:03:
But you're using a word uncertainty and I almost feel like the regulated community is almost like the dog that caught the car. They wanted this so bad, but now they got it. And now your JDs are in limbo, your permits are in limbo, no approved JDs for the foreseeable future. Yeah. Well, yeah. Yeah. Till September 2nd. No. Um, but, uh, you know, there's just so much uncertainty and you do consultants are dealing with it. General public, you know, and also the regulators themselves, you know, they, they may have finished, you know, 60 JDs this year, but they've got to revisit of them 48,000 now.
Fred- 00:26:54:
So many clients, Chris, that are calling me, what do we do? We've been waiting so long and we have pending at the end of the year. And they said, wait, cause the regulations are coming out and then the regulations came out and then they said, wait, we got to wait for the second ruling to come out. And then the second ruling came out. And then the court said, wait, we got to come up with something. So, I mean, you, I mean, built in, you're talking about so much delay just because of all that. Yeah. I mean, you know, the law is funny that way. I mean, you know, with wetlands, you know, we finally got this, you know, you know, more narrow definition or whatnot. How is that going to play out? And is business going to be better off or worse off? And it's all together certain that it's the result that everybody anticipated finally getting this, finally getting this ruling.
Liv - 00:27:48:
I know, I don't have a ton of background in consulting. I'm still relatively new in my overall career, but just with the changes that I witnessed, I remember going to my managers and mentors and saying, well, what do I do now? How do I delineate? Am I supposed to do it the same way? And they always said, you know, the science hasn't changed. It's just the interpretation of regulation that's changed. So keep delineating exactly how you're doing it. And what I found the longer that I worked in consulting was the large corporations building these mega wind farms and solar farms and utility transmission lines and pipelines, they wanted nothing to do with waters. They said, you know what, we don't, because of all of the delays that may come up, give us a big red X and tell construction not to go in there. And so I thought that was an interesting repercussion was we were seeing more of those smaller wetlands conserved because no one wanted to have to deal with the potential, it just wasn't worth the time.
Fred - 00:28:52:
Your experience, your experience agreed with my point, which yeah, yeah, those same those same companies are not going to have to say, Hey, great. Now we don't have to worry about it. Let's go back. Yeah, still going to be we don't we don't want to deal with it at all. So yeah, I think your experience is exactly right.
Liv - 00:29:09:
Because the timeline of these, the life cycles of these projects are 10, 15 years, so who knows what's going to happen. The one thing that I wanted to touch on with your example of the Oklahoma wetland. One of the big things I think it impacts is biodiversity with threatened and endangered species and then also cultural resources. A lot of times wetlands was the trigger that then... triggered a cultural study or a TNE study and stuff like that. So how do you think that's going to play out? Is there going to be just tough or separate rulings for that or what?
Fred - 00:29:48:
No, it's not just tough because the second ruling didn't repeal the Endangered Species Act. SACHA really didn't repeal the National Historic Preservation Act or any other federal statutes protecting tribal resources or other cultural resources. That's still there. And so I think your question is, the answer lies in your question. which is what's the resource that's out there that's potentially triggered by your concern? And is there other authority for the protection of the resource? And in most instances, the answer is going to be yes. You know, so, you know, you may see less permitting under the Clean Water Act, but you may see higher enforcement and more issues related to the Endangered Species Act. So yeah, those haven't gone away. It's just, you know, if there's no federal permit needed. Ergo no federal action. Ergo no NEPA. You know, that's my point about how do you count the things that you're not doing. And I think that's the concern that the advocates really point to, which is, you know, it's going to be unknown to us as advocates, it's going to be unknown to the agencies what has been lost really, because there's no way to account for what you don't know about. And I was going to ask you actually, I thought you were going to go in this direction when you started talking about some of the delineations you were doing. I was going to ask whether you feel that there's a market now for consultants to help clients say that this isn't a wetland.
Liv - 00:31:32:
Yeah, I mean, I think so. I think that's partially... That's partially the job of a consultant in general. Something I find really interesting is when you're talking about like homeowners that say, oh, I want to build something over here. I want to do this. Truly, that was not, I worked at a large environmental or an engineering consulting firm with really large clients that just gave us all of the work and said, you go do it, give me a permit when it's done. But all of those one-off people, how do they know what to do even? How do we make this where they could potentially easily identify well? And I know we've had people reach out to Ecobot that download our free version and say, okay, so like, does this get me a permit? What does this do? And we're like, no, that's not quite just for anyone to use. But I think it should just be more common knowledge across the board. I think that there's definitely room for a company to step in and say, this is what you need to look for. This is what you want to see. And you could probably help.
Fred- 00:32:42:
I mean, it does come down to agency enforcement, doesn't it though? I mean, they're still going to be the Sackett to the world that are going to go out and build a house on where they think. And they think, yeah, I just looked out there. I read that newspaper article about that decision. This is no longer jurisdictional. And they build their house. And there's still going to be instances where the Army Corps or EPA, they just disagree. They say, I know what you think, but we disagree. So there's still going to be instances where there's going to be enforcement from the agency against. actors who go out there and think they know now what is or isn't regulated and they could make a wrong decision or they can make a sloppy decision or they can make a or they can make a woefully negligent decision.
Chris - 00:33:27:
I think that's where you see the municipalities stepping in and then you also see especially states with more rigorous regulations. That's usually when things get flagged. But also another thing is the general public doesn't always know where wetlands are. And, and we don't know where the wetlands are. I think it's important that we document what we have. And with the technology that exists today, it's, you know, it's important, it's more important than ever, especially in light of this ruling. that we focus on documenting what we have.
Fred - 00:34:07:
It's a great point. You mentioned the renewable energy industry. A lot of the effort that went into understanding where these types of developments could go, obviously one was related to where's the resource, obviously. But beyond that is, okay, if we agree that the resource is here, then we're going to where are places where we just shouldn't be building if we had to make a choice? And federal agencies have tried to step in there, try to make recommendations as to, okay, this is a great place to develop, but prefer to do it here, not here. Often reasons because they're protected resources or things that we're not sure about. So if we are going to permit X amount of acres for solar, let's do it in this area and not that area. And I think Chris, your point is well taken, that it could very well be that on the City Level, on the local level, there will be efforts to say, hey, look, from a zoning perspective, perhaps, you know, maybe not even regular from a zoning perspective, these are the areas that we think we should be off limits. And is there a push in certain jurisdictions to create more conservation categories of zoning? So whereas you might anticipate development or growth in your community in certain areas if you want to put off limits. And is the justification for that in part some of these concerns. It's possible.
Chris - 00:35:36:
I think a lot of that is driven by flooding. Where I've seen the most significant regulations surrounding municipalities, it's flooding issues that they're responding to.
Fred - 00:35:50:
How many times can they? rebuild certain areas or encourage people to settle or build in certain areas that would be affected that way. That's true. And if it's an accepted scientific principle that the water features that we think should be covered under the Clean Water Act ar very much related to that phenomenon, the flooding phenomenon, well, you can fairly quickly make those connections, you would think, in terms of the lands that you want to protect and the reasons why you want to protect them. But again, on the state level, on the City Level, you bet. I think that could happen.
Liv - 00:36:29:
All right. I think this is a topic that all of us could discuss for many, many hours. I know I have a whole bunch more questions I didn't even get to. But I just want to take some time now. If we have any, Fred, if you have any closing thoughts just on the discussion to wrap up or a hope for the future or anything, this is, just take a minute or two to give us that.
Fred - 00:36:56:
Well, I mean, the first big watershed moment in this watershed debate will be what EPA and the course say upcoming in September. Are they going to be relatively docile in terms of modifying their rule to reflect the language in the majority opinion socket? Or are they going to say, yeah, we understand what you said, but? Are they going to try to carve out some other stuff that they feel is still really important? And so how docile or how contentious are the agencies going to be in reacting to the opinions? So that's going to be a big moment to see how much of a fight they want to take on because as you pointed out, Chris, there's going to be another challenge to whatever they do. So we'll see that. And I think the next big things we'll see are on individual project bases. Are there projects where permits would have protected on making a number, ten acres, now they're only protecting five? the developer goes out, starts building it, and then you see litigation from community groups or advocacy groups arguing to see those and how those are going to play out in light of the new ruling. That's going to take some time to see how some of those disputes are resolved. So I guess my closing thought is if you're hoping for a final word and no longer thinking about this. That's not the way it's going to be. But I do think you can, for the folks who've been hoping for this for the years, you can expect at least somewhat more clarity, somewhat more certainty. And what I would say is that the scope and the quantity of true debates, over what is covered, what is jurisdiction or not, they're going to be much more confined. they're going to be much more limited. And perhaps that's the best we could hope for, that there'll still be arguments, there'll still be disputes, but there'll be fewer of them. And the ones that do come up aren't going to go all the way to the Supreme Court. I can tell you, Justice Alito and the others who finally ruled on this, they do not want to see another war in their natural lives. It doesn't mean it won't happen again. It doesn't mean it won't happen. But for the foreseeable future, it's all going to play out on the agency's level, on an individual permit level, and maybe sometimes on individual litigation case level. That's how it's all going to play out. So that's my final thought.
Liv - 00:39:35:
Awesome. Well, thank you so much for your time today, Fred. We're so excited to have you on Ecobite and we can't wait to share this with everyone.
Fred - 00:39:44:
Thanks and come back again.
Chris - 00:39:47:
Thank you so much.
Hey everyone, welcome to the Ecobite Podcast, where we will be diving into topics around the environmental industry. If you'd like more context to our conversation and or a crash course on the topic at hand, please view the Ecobite video recording before getting started. Either way, enjoy.
Liv - 00:00:40:
Hello everyone, my name is Liv Haney, Product Manager for Ecobot, and I'm joined by my co-host Chris Fleming, and our guest Fred Wagner. Fred, thank you so much for your presentation and discussion on the Sackett vs. EPA.
Fred - 00:00:53:
Thanks very much, looking forward to our discussion.
Liv - 00:00:55:
Yes. All right, you said this, this is a debate that's been going on forever for more than 35 years. This lack of clarity and lack of certainty. There's four separate attempts. In my experience, limited, of just dealing with Supreme Court rulings, how did we get to four separate cases that have reached the Supreme Court? How are we getting up to the highest court with a waters ruling? And how has precedent not been able to be set, or how have courts not deferred to precedent?
Fred - 00:01:32:
Well, I think it starts with the law and it starts with what Congress said and did not say. The only reason you go back and forth on legal cases is if there's some legitimate dispute or lack of understanding about what Congress meant or didn't mean when it writes a law. And with all due respect to the folks in Congress, and I'm sitting at my desk, if I look out the window I can see the Capitol Dome right down the street. With all due respect to them, they aren't necessarily the best at writing laws that tell you exactly what they mean. And so when you have a principle that would seem to make sense, when you're regulating waters in the United States. You read the rest of the statute and the rest of the statute addresses waters in different ways. So. just inherently it wasn't clear right on his face what was meant by the scope of that regulatory authority. And so then you dig a little bit, you dig into the legislative history of the bill and you read the debates and whatnot, and you're going to find enough ammunition for any interpretation of the phrase when you go into those sorts of things as well. So you have disputes because A, Congress isn't necessarily the clearest when they... right there, Liv. B, you have disputes because lo and behold, the issue that's relevant to the definition of wars in the United States isn't clear on the ground either. And when Congress writes the Clean Water Act. They weren't necessarily thinking about prairie potholes. They weren't thinking about ephemeral streams. They weren't thinking about floodplains and this and that. But sure enough, when you get out onto the ground, people such as yourselves say, wait a minute, water features come in all sorts of shapes and sizes. And so it became... series of ongoing debates, litigation, or is this particular spot regulated? And the facts surrounding each particular spot was different. Lack of clarity by Congress, second, a reality of varying facts and circumstances on the ground. And then three, the reality that the enforcement of the Clean Water Act is done by an agency that does not speak with one voice. The Army Corps of Engineers has district offices around the country, and for years and years and years, what's the phrase, balkanized. It's views that it's a balkanized system of enforcement. Because what you heard from the LA district, you might not have heard from the Philadelphia district. In fact, I'm guaranteeing you that you didn't hear about it. And that was a cultural thing, because these district engineers operate very independently and they don't listen to headquarters for your particular guidance. So you put all that together, Liv, a statute that may not be clear, technical and really environmental issues that create various facts and circumstances, and then an agency that doesn't necessarily enforce something consistently. Voila! Multiple court cases and multiple different variations on the theme. And the court, as it considered all these cases, at some point, Justice Roberts, in one of the rulings flat out begged. I mean, he just wasn't cajoling or hoping. He begged the agencies, please, please, I hope you're going to come out with some regulations that solve this. Right. I hope you do that. Because the agencies just, they really didn't. They issued guidance, issued general rules, manuals, but it's still, it was almost done on a case-by-case basis. And in fact, that's one of the things that really ticked off Justice Alito. You know, he really hated that. He said, wait a minute. How do you tell the public, the citizens we'll let you know when we see it. You may not know what a war in the United States is, but we'll go out, we'll check it out, we'll do some tests, and then we'll tell you. He hated that. And so that's another way of explaining why there's been so much litigation in cases that have gone up and back and forth to the court so many times, because this has been over the decades something that's been reviewed and considered by the agency on a case-by-case basis. And that's never been good for certainty.
Liv - 00:06:16:
Go ahead, Chris.
Chris - 00:06:17:
Yeah, so I'm a Senior Solutions Engineer here at Ecobot and previously a consultant for over 20 years. And so I've had to live through the evolution, at least since the Rapanos and Carabell cases. And so I've seen it evolved a great deal during that time. And. You know, one thing I find that's interesting about this ruling is anybody that studied any natural sciences knows that. It's not black and white. It's gray. You know, wetland boundary can be debated. You know, it's. I feel like this ruling, what they tried to do is say, this is black and white. Like they tried to say continuous surface water connection and difficult to determine where the water ends and the wetland begins. They're trying to make it black and white, but I see so much vagueness in the rolling that even though they're coming up with a guidance document, there's still much debate to be had once that guidance comes out.
Fred- 00:07:23:
I think you're right and there will be continued legal disputes, I think. As I said, when the regulation comes out, there's going to be a tussle over that. But then on any particular project, any particular permit application, there certainly can be more debate and discussions. In particular, it doesn't have to be the Sacketts. They'll finally get to build their house, we think. But some other property owner is going to say, hey, wait a minute, I don't think I need a permit for this. You made this ruling and they're going to challenge it. The question is, how are those disputes going to mature and are we going to find over time at least some measure of, if not consistency, at least some trends, some predictability, right? And I think. I think people have given up, Chris, for certainty. I think that the search for that is... It's like the search for the Holy Grail.
Chris- 00:08:27:
But and then also let me flip it on its head. Are you aware of any lawsuits where people have? sued the federal government. for allowing waters of the US to be impacted.
Fred - 00:08:41:
You know, there are citizen supervisions in the clean water act that allow advocacy groups, you know, local citizens to say, Hey, wait a minute, you, you did something in error here. So yes, I'm aware of those types of things. And, you know, yeah, I think that the rhythm of environmental law generally is such that you live through an era where the government done a lot. And then people react to it, like the governors of the states that challenge the regulation. And then you live through an era where the government done little and it's deregulation, right? And then the citizen groups, the advocacy groups, try to fill in the breach. They try to jump in and try to do some stuff. So absolutely, Chris, I think that if this case and the, you know, most people view it as a much more restrictive interpretation of what will be jurisdictional and what will be protected under the act, If that's true, you're absolutely going to see a bunch of advocacy groups trying to step in to, you know. mandate more protection if they think their protection has been lost. The other thing that we haven't talked about yet, and I'm wondering if you agree, based on your relationships and work in individual states, is that I believe that the states now are going to step in big time. Again, which is of course ironic because over the years people have been saying, oh, we need a firm definition of voters so that there's certainty and now they have this definition and what's going to happen is the states you're open to all different things and so rules to be depending on what state you're going to be in and where I live in Maryland, there's an existing statute that's pretty strong in terms of title and coastal resources. I could see under the current governor that there could be greater regulation and perhaps even a movement to even strengthen that law. In other states, ironically maybe even red states, but that have a tremendous amount of these coastal and wetland resources that are important to protecting its coastlines, even they may get involved in surprising ways that may provide additional protections that are important to their basic infrastructure and their population centers. Think Louisiana, think North Carolina and stuff like that. It isn't necessarily so that they can say, hey great, that's less protected, let's go, because they're aware of some of the realities of harm that could happen if some of these resources are not protected. So you're going to see a whole range of responses from the states if they feel that, wait a minute, resources Maryland around the Chesapeake Bay may be under threat, they go more. You know what the rule is, states can make rules that can be no less strict than the federal rule. We can be more strict than the federal, but they can't be any less. So if a state wants to go above and beyond for a whole variety of legitimate reasons, they can do it. And I'm predicting there's going to be at least a dozen states that'll take up that invitation and that's going to create a whole bunch of other issues to try to track different rules in different places.
Liv - 00:12:01:
That's been my experience for sure. I worked for a consulting firm that did nationwide projects. Definitely working in states like Massachusetts and Connecticut and New England, there's some very strict rules. At the county level, the state level and different conservation districts, there's all kinds of stuff. Then in some states, there's very little regulation and they just defer to federal. I'm very interested in the state-by-state versus federal. We've seen that Florida has taken over control of their wetlands and it hasn't gone very good. There hasn't been a lot of progress that's been made. I think that the regional, from a science perspective, the regional characteristics make a big difference though. So think about even way back when trying to determine water rights. The discussion of water rights has been a question mark in some cases and it's divided between the country because water is more readily available in some places than others. So it doesn't really make sense for someone in Washington DC or in New York or Connecticut to be making rules for Nevada or Utah where the environment's completely different. So there can be some benefits, but again, when you come to interstate waterways, when you come to something like the Colorado River that has a lot of implications downstream. I definitely see the area of concern.
Fren- 00:13:42:
They say that's obvious. Those are navigable waters, clearly jurisdictional. Don't worry about that. I think what people would say is that what we are worried about are those lands that link the obvious navigable waters to these other water features. That's the thing that people are most worried about.
Liv - 00:14:05:
Well, and it's less not necessarily worried about the river itself, but about maybe not so specific adjacent wetlands or things that are connected by, I mean, underground waters in a lot of cases you're carrying pollution in or sediment.
Fred - 00:14:22:
Out of the vances of the significant. That's just test.
Liv - 00:14:25:
Yeah, yeah.
Fred - 00:14:26:
So that was the basis for it. They said, look, you know, the elbow bones connected to the hip bone. From an environmental standpoint, that's what so you have to just describe that. The problem that the majority had was that in many instances, that's not easy. And so you're a property owner looking out on your land, and you see this, you know, And, you know, the majority in Sackett has said, you know, it really stinks that in order to determine whether the government has influence on your land. You have to hire one of you guys. to let them know what the hydrological connection is and so forth and you just can't know it by seeing it and that also seemed a little bit unfair to the majority. The problem with that of course is... It's that's true that sometimes you just don't know and you need to do that a little bit of investigation and and and your point live I think is well taken which is the reason that you know wetlands became Uh an important feature of the clean water act the reason that a Republican President came up with the concept of no net loss of wetlands wasn't democratic republic. It was the Republican President the first George Bush came up with that concept under his leadership and his EPA the reason they came up with it is for the the exact reason that the the features of those types of wetlands also influence overall water quality health to traditional navigable waters. They just do. And so that's where that whole came from, right? So you have a the majority saying that I'm trying to balance the certainty that a landowner has. And then you have even a conservative justice like Justice Kavanaugh. Who was in the dissent? Justice Kavanaugh was in the dissent. He said, you know, wait a minute, you know, how are we now as judges becoming the arbiters of what's regulated or not. Where do we have the expertise to do that? Why are we now making this decision? when it's clear that from a technical perspective, from an environmental perspective, that there are these issues, it's clear that they exist. But now we're in the business of doing that. We're the Supreme Court, we're not the EPA. And that was from Justice Kavanaugh. So that was one of the interesting and surprising elements of the second ruling.
Liv - 00:17:00:
Yeah, you mentioned this a couple of times and I want to, I'll play the straight man here and try and get a layman's definition. Talk to me about traditional navigable waters. What are they? How did they get that rule or that title? How does something become a traditional navigable waters?
Fred - 00:17:20:
Well, I mean, the origin of this concern over what is a traditional navigable water came from, rapinos, and just the scalia. And just the scalia basically said if you could float a boat in it. That's navigable. That's what it means. And there was, you know, folks even on this court, I think Justice Thomas was one, you know, perhaps, who said, Yeah, That's it, you want to clear test? That's what navigable is. And I think even Justice Alito felt a little bit wary of making it that severe. And so traditional navigable waters became the traditional sense of rivers and streams and oceans and things like that, that from the sense of the Clean Water Act and the original definitions, that's where it would fit. So you can go back to the law. That's what it was. And I think the reason that there's a demarcation between these traditional waters and these other regulated waters was because of the hydrological connections that you described earlier, which is, you know, there's clearly some places where you're not going to be floating a boat. It's wet, marshy, damp type things, but you know, there's an indistinguishable connection between those and the river and the bay and the ocean and things like that. And that's why the court laid out that definition. In an effort to explain the intermediary resources that were going to be covered, it said, well, we all know that what those are, meaning the traditional waters. So that's why they wanted to define those in order then to define the scope of jurisdiction for those intermediate waters that were going to be waters in the United States. So that's why it was important to the court to lay that out because you can't define something that's indistinguishable from another thing unless you all find that other thing.
Liv - 00:19:17:
Yeah. Yeah. Are those, do those differ from section 10 and that section 10 waters are the ones that previously had commerce off of them or on them or is that?
Fred - 00:19:27:
No, no, it's a really peculiar trick to be more like it.
Liv - 00:19:30:
Okay. Okay
Fred - 00:19:31:
You'll make things more complicated.
Liv - 00:19:33:
Yeah. I just want to know it all. All right, Chris, what were you going to say?
Chris - 00:19:37:
Yes, I just want to bring it back to what you were talking about with states being such important players now. Let's say this rolling sticks and reduced regulation of wetlands and waters. I know there's like 25 or 26 states with more rigorous regulations than, you know, the federal government. I saw where the state of Michigan, I think it was today, came out with a statement just reassuring the people in Michigan that we are, and we continue to protect these resources, even, you know, in light of this ruling. But then, you know, also when you come to, you know, where I was at in Tennessee, we had extreme regulation. Tennessee is, has very progressive water rules considering. the politics of the state at this time. But then you come to North Carolina. And we have a farm bill that was passed by the legislature. The governor vetoed it and now it's back in front of the legislature and it reduces regulations. So do you foresee attacks towards, you know, these state regulations in some environments?
Fred - 00:20:58:
A hundred percent, I do.
Chris - 00:21:00:
Yeah.
Fred - 00:21:01:
And so the question is going to become, what's the thing that the state, the governor, the legislature are trying to protect? Is there a stress on agriculture? Is it stressed on poultry or animal feedlots and stuff like that? What is it that they're trying to protect and where do they think the threat is of additional regulation of these water features, right? I mean, one of the things that why I'm a little bit dubious, Chris, that, you know, 50% of protected waters are off the books. The reason I'm a little bit dubious of that is that I don't think that there is this terrible threat that people are going to fill in every inch of those type of waters. And again, I know some people will and whatnot, but there's just too many things that are going on in the world around us. from beach homes being washed into the ocean to storms creating greater flood surges and storm surges into communities and so forth. There's just too much of that for irrational developers, business people, property owners to say, yeah, that doesn't matter. That's not a water, by gum, I'm going to build my fill in the blank here.
Chris - 00:22:31:
So speaking to that, one thing that I saw, you know, in especially in the last 10 years of being a consultant is you see a lot of municipalities and you know they got MS4 obligations and. And what I was seeing is the way that they do it is they're like, we don't regulate the wetlands or the streams, that we regulate the buffers. But you can't get to the resource unless you impact the buffer, but you know, it was. You know, in the city of Nashville, you know, I would, you know, pretty frequently tell clients like, I can get your core permit. I can get your state permit. You're not getting a variance. And so I think the municipalities could also play a strong role in this.
Fred - 00:23:20:
That's absolutely true and I think that's consistent with my sense that, you know, although I agree that what's protected is less. I may disagree with some environmental groups that talk about the intensity and the scope of the threat. Because there are some other checks and balances, there are some other rules in play, and the market also works in strange ways too. I mean, if somebody says, hey, I got this great idea for a beachfront resort or this waterfront resort, are they going to be able to insure it? Could they even get it insured? And that's going to be a major disincentive to develop in some of these lands and whatnot. So you end up with a subset of a subset of water features that really are the subject of this debate over many, many years. That you're prairie potholes and you're a family tree that only fell up every now and again or this type of thing. In some ways, if that's where we end up, I almost think that's a manageable level of uncertainty. You see what I mean? I just couldn't believe for a moment that, Katie bar the door, everybody go find your nearest wetland and fill it.
Liv - 00:24:48:
Yeah.
Fred - 00:24:48:
I just don't, I just don't see that happening for all the reasons that we have just discussed. I think there's. real disincentives to do that to a certain extent. But if you're in Oklahoma, I'm not picking on Oklahoma, but if you're in Oklahoma, there's no water anywhere near, and there's a damp area. That's no longer going to be jurisdictional.
Liv - 00:25:10:
Mm-hmm.
Fred - 00:25:12:
And from an environmental perspective. How much do we care about that? I mean, part of this discussion, right, that the advocates would say, you care about everything, it all matters because it goes to groundwater and that's all important. But some other folks may say, Let's keep our focus on these areas that are. the ones that are truly contributing in a big way to the things that we need. So that's all going to play out. I mean, it's going to take years to know what this really means because it's going to be hard to count the number of permits that aren't needed. You know what I mean? How do you count that? How do you count the number of permits that would have been filed but now that aren't? That's really hard to know.
Chris - 00:26:03:
But you're using a word uncertainty and I almost feel like the regulated community is almost like the dog that caught the car. They wanted this so bad, but now they got it. And now your JDs are in limbo, your permits are in limbo, no approved JDs for the foreseeable future. Yeah. Well, yeah. Yeah. Till September 2nd. No. Um, but, uh, you know, there's just so much uncertainty and you do consultants are dealing with it. General public, you know, and also the regulators themselves, you know, they, they may have finished, you know, 60 JDs this year, but they've got to revisit of them 48,000 now.
Fred- 00:26:54:
So many clients, Chris, that are calling me, what do we do? We've been waiting so long and we have pending at the end of the year. And they said, wait, cause the regulations are coming out and then the regulations came out and then they said, wait, we got to wait for the second ruling to come out. And then the second ruling came out. And then the court said, wait, we got to come up with something. So, I mean, you, I mean, built in, you're talking about so much delay just because of all that. Yeah. I mean, you know, the law is funny that way. I mean, you know, with wetlands, you know, we finally got this, you know, you know, more narrow definition or whatnot. How is that going to play out? And is business going to be better off or worse off? And it's all together certain that it's the result that everybody anticipated finally getting this, finally getting this ruling.
Liv - 00:27:48:
I know, I don't have a ton of background in consulting. I'm still relatively new in my overall career, but just with the changes that I witnessed, I remember going to my managers and mentors and saying, well, what do I do now? How do I delineate? Am I supposed to do it the same way? And they always said, you know, the science hasn't changed. It's just the interpretation of regulation that's changed. So keep delineating exactly how you're doing it. And what I found the longer that I worked in consulting was the large corporations building these mega wind farms and solar farms and utility transmission lines and pipelines, they wanted nothing to do with waters. They said, you know what, we don't, because of all of the delays that may come up, give us a big red X and tell construction not to go in there. And so I thought that was an interesting repercussion was we were seeing more of those smaller wetlands conserved because no one wanted to have to deal with the potential, it just wasn't worth the time.
Fred - 00:28:52:
Your experience, your experience agreed with my point, which yeah, yeah, those same those same companies are not going to have to say, Hey, great. Now we don't have to worry about it. Let's go back. Yeah, still going to be we don't we don't want to deal with it at all. So yeah, I think your experience is exactly right.
Liv - 00:29:09:
Because the timeline of these, the life cycles of these projects are 10, 15 years, so who knows what's going to happen. The one thing that I wanted to touch on with your example of the Oklahoma wetland. One of the big things I think it impacts is biodiversity with threatened and endangered species and then also cultural resources. A lot of times wetlands was the trigger that then... triggered a cultural study or a TNE study and stuff like that. So how do you think that's going to play out? Is there going to be just tough or separate rulings for that or what?
Fred - 00:29:48:
No, it's not just tough because the second ruling didn't repeal the Endangered Species Act. SACHA really didn't repeal the National Historic Preservation Act or any other federal statutes protecting tribal resources or other cultural resources. That's still there. And so I think your question is, the answer lies in your question. which is what's the resource that's out there that's potentially triggered by your concern? And is there other authority for the protection of the resource? And in most instances, the answer is going to be yes. You know, so, you know, you may see less permitting under the Clean Water Act, but you may see higher enforcement and more issues related to the Endangered Species Act. So yeah, those haven't gone away. It's just, you know, if there's no federal permit needed. Ergo no federal action. Ergo no NEPA. You know, that's my point about how do you count the things that you're not doing. And I think that's the concern that the advocates really point to, which is, you know, it's going to be unknown to us as advocates, it's going to be unknown to the agencies what has been lost really, because there's no way to account for what you don't know about. And I was going to ask you actually, I thought you were going to go in this direction when you started talking about some of the delineations you were doing. I was going to ask whether you feel that there's a market now for consultants to help clients say that this isn't a wetland.
Liv - 00:31:32:
Yeah, I mean, I think so. I think that's partially... That's partially the job of a consultant in general. Something I find really interesting is when you're talking about like homeowners that say, oh, I want to build something over here. I want to do this. Truly, that was not, I worked at a large environmental or an engineering consulting firm with really large clients that just gave us all of the work and said, you go do it, give me a permit when it's done. But all of those one-off people, how do they know what to do even? How do we make this where they could potentially easily identify well? And I know we've had people reach out to Ecobot that download our free version and say, okay, so like, does this get me a permit? What does this do? And we're like, no, that's not quite just for anyone to use. But I think it should just be more common knowledge across the board. I think that there's definitely room for a company to step in and say, this is what you need to look for. This is what you want to see. And you could probably help.
Fred- 00:32:42:
I mean, it does come down to agency enforcement, doesn't it though? I mean, they're still going to be the Sackett to the world that are going to go out and build a house on where they think. And they think, yeah, I just looked out there. I read that newspaper article about that decision. This is no longer jurisdictional. And they build their house. And there's still going to be instances where the Army Corps or EPA, they just disagree. They say, I know what you think, but we disagree. So there's still going to be instances where there's going to be enforcement from the agency against. actors who go out there and think they know now what is or isn't regulated and they could make a wrong decision or they can make a sloppy decision or they can make a or they can make a woefully negligent decision.
Chris - 00:33:27:
I think that's where you see the municipalities stepping in and then you also see especially states with more rigorous regulations. That's usually when things get flagged. But also another thing is the general public doesn't always know where wetlands are. And, and we don't know where the wetlands are. I think it's important that we document what we have. And with the technology that exists today, it's, you know, it's important, it's more important than ever, especially in light of this ruling. that we focus on documenting what we have.
Fred - 00:34:07:
It's a great point. You mentioned the renewable energy industry. A lot of the effort that went into understanding where these types of developments could go, obviously one was related to where's the resource, obviously. But beyond that is, okay, if we agree that the resource is here, then we're going to where are places where we just shouldn't be building if we had to make a choice? And federal agencies have tried to step in there, try to make recommendations as to, okay, this is a great place to develop, but prefer to do it here, not here. Often reasons because they're protected resources or things that we're not sure about. So if we are going to permit X amount of acres for solar, let's do it in this area and not that area. And I think Chris, your point is well taken, that it could very well be that on the City Level, on the local level, there will be efforts to say, hey, look, from a zoning perspective, perhaps, you know, maybe not even regular from a zoning perspective, these are the areas that we think we should be off limits. And is there a push in certain jurisdictions to create more conservation categories of zoning? So whereas you might anticipate development or growth in your community in certain areas if you want to put off limits. And is the justification for that in part some of these concerns. It's possible.
Chris - 00:35:36:
I think a lot of that is driven by flooding. Where I've seen the most significant regulations surrounding municipalities, it's flooding issues that they're responding to.
Fred - 00:35:50:
How many times can they? rebuild certain areas or encourage people to settle or build in certain areas that would be affected that way. That's true. And if it's an accepted scientific principle that the water features that we think should be covered under the Clean Water Act ar very much related to that phenomenon, the flooding phenomenon, well, you can fairly quickly make those connections, you would think, in terms of the lands that you want to protect and the reasons why you want to protect them. But again, on the state level, on the City Level, you bet. I think that could happen.
Liv - 00:36:29:
All right. I think this is a topic that all of us could discuss for many, many hours. I know I have a whole bunch more questions I didn't even get to. But I just want to take some time now. If we have any, Fred, if you have any closing thoughts just on the discussion to wrap up or a hope for the future or anything, this is, just take a minute or two to give us that.
Fred - 00:36:56:
Well, I mean, the first big watershed moment in this watershed debate will be what EPA and the course say upcoming in September. Are they going to be relatively docile in terms of modifying their rule to reflect the language in the majority opinion socket? Or are they going to say, yeah, we understand what you said, but? Are they going to try to carve out some other stuff that they feel is still really important? And so how docile or how contentious are the agencies going to be in reacting to the opinions? So that's going to be a big moment to see how much of a fight they want to take on because as you pointed out, Chris, there's going to be another challenge to whatever they do. So we'll see that. And I think the next big things we'll see are on individual project bases. Are there projects where permits would have protected on making a number, ten acres, now they're only protecting five? the developer goes out, starts building it, and then you see litigation from community groups or advocacy groups arguing to see those and how those are going to play out in light of the new ruling. That's going to take some time to see how some of those disputes are resolved. So I guess my closing thought is if you're hoping for a final word and no longer thinking about this. That's not the way it's going to be. But I do think you can, for the folks who've been hoping for this for the years, you can expect at least somewhat more clarity, somewhat more certainty. And what I would say is that the scope and the quantity of true debates, over what is covered, what is jurisdiction or not, they're going to be much more confined. they're going to be much more limited. And perhaps that's the best we could hope for, that there'll still be arguments, there'll still be disputes, but there'll be fewer of them. And the ones that do come up aren't going to go all the way to the Supreme Court. I can tell you, Justice Alito and the others who finally ruled on this, they do not want to see another war in their natural lives. It doesn't mean it won't happen again. It doesn't mean it won't happen. But for the foreseeable future, it's all going to play out on the agency's level, on an individual permit level, and maybe sometimes on individual litigation case level. That's how it's all going to play out. So that's my final thought.
Liv - 00:39:35:
Awesome. Well, thank you so much for your time today, Fred. We're so excited to have you on Ecobite and we can't wait to share this with everyone.
Fred - 00:39:44:
Thanks and come back again.
Chris - 00:39:47:
Thank you so much.
