Areas set to lose federal protections
The Great Lakes and Miss. River could be affected
Many wetlands across the country will lose federal protections following a U.S. Supreme Court decision on Thursday.
Justices heard oral arguments in the Sackett v. EPA case last fall. The case is a longstanding dispute over a couple’s efforts to build a home on their Idaho property, which the U.S. Environmental Protection Agency contends is a wetland protected under the Clean Water Act.
The court ruled in favor of the Sacketts, saying that protections from the Clean Water Act extend only to wetlands with a continuous surface connection to a protected water body. According to the ruling, the wetlands on the Sacketts’ property are “distinguishable” from the protected water body.
Environmentalists say the ruling “ignores the science” that almost all waters are connected through groundwater.
“Just because a wetland doesn’t have a surface connection doesn’t mean that nothing is happening beneath the surface,” said Brian Vigue, policy director for Audubon Great Lakes.
The interpretation may not have much immediate impact on Wisconsin’s wetlands, because they are protected by rules enacted by the state Legislature in 2001. But two important regional water bodies – the Great Lakes and the Mississippi River – may now be at risk for water quality damage as wetland protections fall back to the states.
Wisconsin is a leader in protecting wetlands, Vigue said, but the cumulative impact on the Great Lakes and Mississippi River is going to be “enormous if protections aren’t kept, and that’s not always assured in other states.”
The loss of protections will likely result in problems nationwide with flooding, water quality and runoff, Vigue said.
EPA Administrator Michael Regan said in a statement he was “disappointed” in the ruling.
“Over the past 50 years, we have made transformational
“Just because a wetland doesn’t have a surface connection doesn’t mean that nothing is happening beneath the surface.”
Brian Vigue
Policy director for Audubon Great Lakes
progress — rivers that were once on fire have been restored and now sustain vibrant communities in every corner of the country. A common sense and science-based definition of ‘waters of the United States’ is essential to building on that progress and fulfilling our responsibility to preserve our nation’s waters — now and for future generations,” Regan said.
The American Farm Bureau Federation President Zippy Duvall applauded the ruling. “The EPA clearly overstepped its authority under the Clean Water Act by restricting private property owners from developing their land despite being far from the nearest navigable water,” Duvall said in a statement.
“Farmers and ranchers share the goal of protecting the resources they’re entrusted with, but they deserve a rule that provides clarity and doesn’t require a team of attorneys to properly care for their land,” he said.
Nearly two decades in the making
Michael and Chantell Sackett, who bought property near Priest Lake in Idaho in 2004, have been dueling with the federal government for over a decade over whether they can build on it.
This most recent legal challenge asked the court to consider again which wetlands are given federal protections – a question that has also been the subject of contention for years.
The Clean Water Act prohibits the discharge of pollutants into navigable waters, which are defined as “waters of the United States.” Since a 2006 U.S. Supreme Court ruling on which wetlands can fall under that definition, the government has taken a more expansive approach, granting protections to any wetland that significantly impacts how a downstream waterway functions.
The Sacketts asked the court to revert to a more restrictive definition of which wetlands are considered waters of the United States, granting protections only to those that are adjacent to another protected waterway. Under that definition, there would always need to be a surface water connection between the wetland and the other waterway for the wetland to have protections.
Since their property is not adjacent to Priest Lake, Thursday’s ruling means they will be able to build on the lot.
Outside the court, the issue has been frequently batted around by the executive branch. The Obama administration put forth a broad definition of waters of the United States in 2015 that extended federal protection even to places that hold water for only part of the year. In 2019, the Trump administration narrowed the definition considerably.
Most recently, the EPA under President Joe Biden issued a new rule, which would restore some of the wetland protections stripped away under the previous administration but was not as expansive as the 2015 definition.
Wetlands protect the Great Lakes, Mississippi River
Even though Wisconsin has lost more than half of its wetlands, the state is home to about 5 million acres of wetlands, which cover about 15% of the state.
Wetlands help keep lakes and rivers clean, filtering nutrients and sediment before they enter downstream water bodies. They store large amounts of carbon, helping to take carbon dioxide out of the atmosphere. And they can help stop flooding during major rain events.
Protecting and restoring wetlands throughout the Great Lakes region is one way to make coastlines more resilient from fluctuating lake levels and intense rainfall events brought on by climate change.
Wetlands are “one of the most valuable tools” in maintaining water quality across the region, Vigue said.
Wetland habitats throughout the lakes are also important stopovers for migratory birds looking to nest and feed along their travels. And more than 80 species of Great Lakes’ fish, like many game fish, rely on wetlands to spawn, feed or protect their larvae.
Maisah Khan, policy director at the Mississippi River Network, said the decision will be especially “troubling” for the Mississippi River because many of the river’s wetlands are separated behind dikes and berms. That separation would seem to fall under the Thursday court ruling, voiding their protection.
Wetlands play an especially important role in the health of the river, holding back pollution from making its way downstream and adding to the Dead Zone in the Gulf of Mexico.
Now there will be a lot of pressure on all of the Mississippi River states to take action, possibly resulting in uneven protections across the basin, Khan said. She believes this is an opportunity for Congress to reaffirm the intentions of the Clean Water Act, adding that the ruling doesn’t reflect the interests of the people, who overwhelmingly support protections for wetlands.
“This is going to be a long-term fight,” she said.
Madeline Heim and Caitlin Looby are Report for America corps reporters who write about environmental challenges in the Mississippi River Basin and the Great Lakes, respectively. Contact them at mheim@gannett.com and clooby@gannett.com. Please consider supporting journalism that informs our democracy with a tax-deductible gift to this reporting effort at jsonline.com/RFA or by check made out to The GroundTruth Project with subject line Report for America Milwaukee Journal Sentinel Campaign. Address: The GroundTruth Project, Lockbox Services, 9450 SW Gemini Dr, PMB 46837, Beaverton, Oregon 970087105.