Supreme Court Wetlands Decision Further Muddies Already Murky Environmental Area, Conservationists Say

(David Mark / Pixabay)(David Mark / Pixabay)

A U.S. Supreme Court ruling that narrows the Clean Water Act’s authority to regulate certain wetlands has met with disappointment, frustration and head-scratching among Great Lakes environmentalists.

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In a 5-4 ruling in the case of Sackett v. the Environmental Protection Agency, the justices determined the Clean Water Act only applies to wetlands if they have a “continuous surface connection” to larger, regulated bodies of water.

That leaves “isolated” wetlands — wetlands off on their own, not next to a river, creek or lake — open to development or infill.

“I read the rulings twice, and it reads like the Dixon Waterfowl Refuge no longer qualifies as a wetland,” said Paul Botts, president and executive director of The Wetlands Initiative. “That is nuts.”

The 3,000-acre refuge, located 40 miles north of Peoria, is a protected natural area and not in danger of being drained or turned into a shopping center, he said, but it points to the ruling’s flaws. 

“Worst-case scenario, there’s widespread vulnerability. … There could be 42 million acres of wetlands at risk,” said Brian Vigue, director of freshwater policy at Audubon Great Lakes. At-risk areas include small, scattered ponds that migratory birds rely on as places to rest and feed.

“So many species of birds depend on wetlands to survive,” Vigue said.

Setting aside politics, legal precedent or philosophical debate, the justices got the science wrong in their emphasis on “continuous surface connection,” according to Vigue.

“Basically, all waters are connected, unless it’s in a swimming pool,” he said. “Water either flows into a creek or river or it gets into groundwater. A lot of water is flowing through the ground.”

Justice Brett Kavanaugh, who concurred with the decision but not the logic, said the court’s strict definition would leave out wetlands separated from a waterway by a levee, which would describe large swaths of land adjacent to the Mississippi River used for flood control.

The semantics surrounding wetlands have been “clear as mud” since the Clean Water Act was first written in 1972, said Botts.

“Congress punted on which are protected” and created a “40-year running argument between the executive branch and the judicial branch,” Botts said. 

An overhaul of the Clean Water Act would clear up the confusion, but such a development is highly unlikely. Instead, Congress has opted to “leave the can kicked over here for people to keep kicking,” Botts said. “This is not the way our system should work, to have a vague piece of legislation on an important subject. There’s no excuse.”

Immediate ramifications are uncertain as legal experts, conservationists, landowners and public agencies alike are still dissecting the court’s decision. But environmental advocates are clear about what the consequences will be if wetlands are lost.

“Wetlands hold and filter out pollutants, they retain stormwater and reduce flooding, they provide critical habitat for wildlife, and they soak up carbon. Unfortunately, the Court’s decision means dirtier water, more uncontrolled flooding, more net carbon emissions and a significant loss of wildlife habitat,” said Scott Strand, senior attorney for the Environmental Law and Policy Center.

States can step in to stave off the direst of predictions, Botts noted, something Illinois is likely poised to do.

“There’s going to be new laws and new challenges,” Botts said.

Contact Patty Wetli: @pattywetli | (773) 509-5623 |  [email protected]

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