Significant Nexus

I just read the opinion piece you published  with the provocative title “Commentary: EPA: Enlightened despots or experts?”  In the piece, the author, Bobby Whitescarver, who is a retired federal employee and a current “watershed restoration consultant,” describes the plight of the Sackett family, who filled their modest two-thirds acre lot in a wetland with sand and gravel without a permit.

To do what?  That’s not mentioned in the piece.  It seems to me that building a house and planting natural vegetation on the rest would be quite different than putting in a small but crowded poultry farm.

In the piece, Mr. Whitescarver advocates for what is termed a “significant nexus” to be applied to that property.   The Supreme Court justices he quotes also ask questions about how to define a “significant nexus.” A “significant nexus” would allow the EPA to prohibit the filling of any of that wetland since it is across the road from a lake under their legal jurisdiction.  Mr. Whitescarver implies that the groundwater flow from the now-filled wetland “significantly influences surface water’s physical, chemical, and biological integrity.”

I am just a software engineer, not a watershed restoration consultant, but I think Mr. Whitescarver needs to give us a more complete explanation of that particular nexus.  If the Sacketts were to put a crowded poultry farm on their property with runoff into neighboring wetlands or the lake, that would almost certainly have a significant influence on the biological integrity of the lake.  But if the Sackets have natural vegetation and a modest house on the lot, and were perhaps required to use a pump and haul septic or required to install a sand filter septic, wouldn’t that maintain the integrity of the lake?

As for groundwater, won’t the Sackett’s sand and gravel fill allow groundwater penetration?  Couldn’t local regulators require a certain portion of the property be converted into a rain garden, fed by runoff from any impermeable portions of their property (e.g., paved portion and roof) to help recharge the groundwater?  Shouldn’t all such regulations be local with consulting from the federal “experts,” not litigation?

Since the Sacketts did not have a permit, it may well be those location regulations prohibited filling any “wetland” for any reason. Where I live in Warren county, what I can do on my portion of the Shenandoah River floodplain is regulated.  But other than that well-defined area, I could fill “wetlands” if I wanted to.  But I have, in fact, created small wetlands on my sloping property where before, the runoff simply ran off into the river.  In Mr. Whitescarver’s opinion, the wetlands I created may have a significant nexus to the river through groundwater and would, in fact, be subject to direct EPA regulation.

I believe everyone should think about creating permeable surfaces with runoff retention where they can at a reasonable cost or as part of their landscaping plan.  I believe that Mr. Whitescarver should offer us his services at a reasonable hourly rate, and the EPA should offer its expertise to local officials like ours in Warren County to draft sensible regulations.  But let’s end the argument over “significant nexus” because, in fact, every square inch of the county has a nexus that could be deemed significant by some expert.  Instead, let us use a term like “common sense practical effect” to ensure we aim for the highest water quality possible without federal confiscation of anyone’s two-thirds of an acre.

Eric Peterson
Front Royal