How the US supreme court and an Idaho couple upended wetlands protection
Often dismissed as dismal wet bogs and rampantly cleared since European arrival in the US, the underappreciated importance of wetlands has been placed into sharp relief by a supreme court ruling that has plunged many of these ecosystems into new peril.
The extent of wetlands, areas covered or saturated by water that encompass marshes, swamps and carbon-rich peatlands, has shrunk by 40% over the past 300 years as the US drained and filled them in for housing, highways, parking lots, golf courses and other uses. Globally, wetlands are disappearing three times faster than forests are.
Wetlands received federal protection under the 1972 Clean Water Act but the future of many of these remaining ecosystems, which span 290m acres, or about twice the size of France, is now in jeopardy following the supreme court’s decision in May to severely narrow the scope of what is protected.
Environmentalists are now nervously eyeing developments in several states that have relatively weak wetlands protections in the wake of the case. At risk, they say, are systems that act as the kidneys of America by filtering clean water as well as providing a home to a treasure trove of wildlife, from dragonflies to frogs to waterfowl, and acting as an important buffer to floods and storms projected to worsen due to the climate crisis.
“A lot of people see wetlands as mosquito breeding habitat, but I think the general public is recognizing more and more the functions and values that they provide,” said John Lowenthal, a biologist at the Society of Wetland Scientists, who said that he enjoys little more than pulling on his boots to discover new wetlands.
“Without them, you have less wildlife habitat, less habitat for seafood, so people have less seafood to eat, you have more of the drinking water rationing you’re seeing in the south-west, you’ll have more loss of property along the Atlantic and Gulf coasts.”
By some estimates, about half of remaining wetlands have now been stripped of federal protection following the supreme court ruling, in which five conservative justices decided that the Clean Water Act only applied to bodies of water with a “continuous surface connection” to rivers, lakes or other navigable waters.
This case, brought by an Idaho couple, Michael and Chantell Sackett, who wanted to fill in a section of wetland to develop a house in Priest Lake without getting a permit first, has upended previous assumptions about the protection of wetlands and now places many of the remaining, prized wetlands at risk. In August, the Environmental Protection Agency released a new, scaled-down set of water protections that its administrator, Michael Regan, said was necessary after the “disappointing” supreme court decision.
“This is our bedrock environmental law and the court just turned precedent and reasoning on its head. It was devastating,” said John Rumpler, a clean water attorney at Environment America. “We are already seeing the effects of it and we expect to see more.”
Under the new definition, even the Everglades, perhaps the most famous wetland of all, would be “dramatically affected”, according to Lowenthal, as much of the sprawling ecosystem is not obviously connected to major bodies of water, separated by agricultural ditches or other barriers.
Florida has insisted it has a robust system of wetlands protections that can provide adequate protection, but other states aren’t as well-equipped to safeguard wetlands from developers. States such as Texas, Nevada, Oklahoma and Missouri have scant wetland protections, according to an analysis by Earthjustice, with a host of other