The Environmental Protection Agency recently released new rules regarding the Waters of the United States that decide which bodies of water fall under federal protection. But a case the U.S. Supreme Court is expected to rule on soon throws those rules into question and could mean less protection for wetlands.
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The remnants of the old levee are still visible at The Nature Conservancy’s Emiquon Preserve in central Illinois, although these days it no longer holds back the Illinois River.
Now what was once corn and soybean fields is nearly 7,000 acres of lush restored wetlands.
Doug Blodgett grew up just across the river from what would eventually become the preserve. He remembers hearing old-timers reminisce about the days when there’d be so many geese migrating through the floodplains that they’d blot out the sun.
He wasn’t quite sure he believed those stories, until one day a few years into the restoration.
“There were, I don’t know, 100,000 snow geese out here, and they all got up at once,” he recalled, “… and the sun just disappeared, you could not see a ray of sunlight shining.”
Blodgett, a senior advisor at The Nature Conservancy, is easing into semi-retirement this year. Seeing thousands of birds, waterfowl and native plants return to the Illinois River Valley since the restoration began in 2007 has given him hope that there are more wetlands out there waiting to be restored.
In addition to providing safe resting grounds for wildlife, wetlands serve as natural water filters, and can also reduce flooding during major rain events by giving water a place to sit and soak in.
But an ongoing U.S. Supreme Court case, Sackett v. EPA, could roll back the federal government’s authority to regulate wetlands and potentially trim their protections altogether. That worries conservationists such as Blodgett, who says Illinois has lost 90% of the state’s original wetlands. Many other Midwestern state’s have lost over 50%, according to the U.S. Fish and Wildlife Service.
“We don’t have enough now, and we can’t afford to lose more,” Blodgett said. “So it is of great concern of how this comes down and ultimately, the impact that it has on existing wetlands.”
The challenge to the Clean Water Act
The U.S. Supreme Court heard oral arguments in October for the Sackett v. EPA case, a 14-year-long legal battle launched from the backyard of an Idaho couple, the Sacketts, who were seeking to fill their lake adjacent property with gravel. The EPA stopped them.
The case, which has been to the high court twice now, is aimed at challenging the federal protections the Clean Water Act provides to some waters and wetlands that fall under the definition of Waters of the United States, commonly called WOTUS.
A recent study from the Tulane Institute on Water Resources Law and Policy has found that the ruling could have wide-ranging impacts and leave wetlands management up to states.
Mark Davis served as advisor on the report and has worked on wetland issues for 30 years. He said what’s at stake is the federal jurisdiction of the government over the nation’s most valuable natural resource, water.
“It will mean that there are many important waters and wetlands that are no longer protected by law at all,” he said.
Larger wetlands, like Emiquon, will likely remain untouched, according to Davis. But smaller, more isolated wetlands and streams may lose protections.
The Clean Water Act, passed in 1972, left wetlands protection very much up for interpretation. The law mentioned only “navigable” waters be included under WOTUS, giving them federal protection. The U.S. Army Corps of Engineers later added “adjacent” wetlands, a move upheld by a 1985 Supreme Court decision.
Over the decades there were several challenges around just what could be considered “adjacent” wetlands.
Federal regulatory powers over wetlands remained relatively unchanged until 2006, when Justice Anthony Kennedy wrote a case opinion stating a wetland should be under WOTUS protection if it shares a “significant nexus” with navigable water, meaning the water in the wetland would eventually head downstream.
Scott Strand, a senior attorney with the Environmental Law and Policy Center, said that under the Obama administration, the EPA and Army Corps more substantially outlined the “significant nexus” standard. Strand said the rule didn’t last long.
“That became controversial and it eventually gave way,” he said.
Courts across the country filed injunctions against the Obama era rule, and then the Trump Administration repealed it outright in 2019. The following year, the Biden administration yet again asked the EPA to revisit the rule, and in late December, the EPA finally released its latest version.
But the Sackett case could send the agency back to the drawing board, according to Paul Botts, the president and executive director of the Wetlands Initiative.
“The issue in that case is to what degree the current Clean Water Act gives the U.S. EPA authority to regulate isolated wetlands at all,” he said. “If a majority of the court decides that it does not, then no U.S. EPA rule on the topic is valid.”
A patchwork of policy and protection
Should the court rule in favor of the Sacketts and limit the federal jurisdiction of agencies like the EPA and the Army Corps of Engineers to regulate the nation’s wetlands, it would fall to individual states.
The Tulane study found that 24 states rely on the Clean Water Act to regulate wetlands in their states. That means that they would have limited wetland regulations if the Supreme Court narrows the scope of the Clean Water Act.
Leaving regulation to states could result in a patchwork of protections, according to Maisah Khan, policy director with Mississippi River Network.
“Relying on different states to make up different rules ignores how what happens in one part of the Mississippi River has impacts on another,” Khan said.
The Mississippi River basin is an interdependent system, which covers over 1.3 million square miles and 31 states. Environmental laws in each of those states impact the others.
For example, fewer wetlands to soak up pollutants in the upper basin means more of those pollutants will instead end up rushing downriver, adding to the dead zone in the Gulf of Mexico.
The Supreme Court is expected to return a decision on the Sackett case sometime early this year.
For now, the future for many of the country’s wetlands, especially those seemingly isolated from rivers or streams, remains uncertain.
Yet at Emiquon, life will go on.
Scientists have documented about 93% of Illinois’ threatened and endangered bird species associated with wetlands at the preserve. Blodgett thinks it could be more.
“I’m pretty sure the other 6 or 7% are out there,” he said while looking out across the wetlands. “We just haven’t had the right person at the right place at the right time to see them.”
Madeline Heim, a reporter at the Milwaukee Journal Sentinel, contributed to this story, a collaboration between the Mississippi River Basin Ag & Water Desk and Harvest Public Media. The Mississippi River Basin Ag & Water Desk is an editorially independent reporting network based at the University of Missouri School of Journalism. Harvest Public Media is a collaboration of public media newsrooms in the Midwest based at KCUR in Kansas City.
