The Supreme Court could end protections for some wetlands, which threaten water and wildlife

Remains of the old dam are still visible at The Nature Conservancy’s Emiquon Preserve in central Illinois, although it no longer obstructs the Illinois River these days.

Now what were once corn and soybean fields is nearly 7,000 acres of restored fertile wetland.

Doug Blodgett grew up on the other side of the river from what would eventually become the reservation. He remembers hearing old people remember the days when so many geese migrated across the floodplain that they would block out the sun.

He wasn’t quite sure he believed those stories, until one day after a few years of restoration.

“There were, I don’t know, 100,000 snow geese here,” he recalled, “and they all got up at once. … And the sun just disappeared, and you couldn’t see a ray of sunlight shining.”

Blodgett, a senior advisor at The Nature Conservancy, is entering semi-retirement this year. Seeing thousands of birds, waterfowl, and native plants return to the Illinois River Valley since restoration began in 2007 has given him hope that there are more wetlands waiting to be restored.

In addition to providing safe resting places for wildlife, wetlands act as natural water filters, and they can also reduce flooding during major rain events by providing a place for water to sit and soak in.

But the US Supreme Court case is ongoing, Sackett v. Environmental Protection Agency, could undo the federal government’s authority to regulate wetlands and potentially reduce their protection altogether. This worries conservationists like Blodgett, who says Illinois has lost 90% of the state’s original wetlands. Several other Midwestern states have lost more than 50%, according to the US Fish and Wildlife Service.

“We don’t have enough now, and we can’t afford to lose any more. So it’s a huge concern as to how that happened and ultimately the impact on existing wetlands,” Blodgett said.

Challenge to the Clean Water Act

The US Supreme Court heard oral arguments in October in Sackett v. EPA, a 14-year legal battle that kicked off from the backyard of an Idaho couple, the Sackets, who were seeking to fill their adjoining property with gravel. The Environmental Protection Agency stopped them.

The case, which has gone to the Supreme Court twice now, aims to challenge the federal protections Clean Water Act It provides for some of the waters and wetlands that fall under the definition of US waters, called WOTUS.

newly study of the Tulane Institute for Water Resources Law and Policy that the ruling could have wide-ranging effects and leave wetland management to the states.

Mark Davis served as a consultant for the report and has worked on wetland issues for 30 years. What is at stake, he said, is the government’s federal jurisdiction over the nation’s most valuable natural resource, water.

“It would mean that there are many important waters and wetlands that are no longer protected by law at all,” he said.

According to Davis, larger wetlands, such as Emiquon, are likely to remain intact. But smaller, more isolated wetlands and streams may lose protection.

The Clean Water Act, passed in 1972, left wetland protection largely under interpretation. The law only mentions “navigable” waters that are included under WOTUS, giving them federal protection. The US Army Corps of Engineers later added the “adjacent” wetland, a move upheld by a 1985 Supreme Court decision.

Over the decades, there have been many challenges about what qualifies as a “neighboring” wetland.

Federal regulatory powers over wetlands remained relatively unchanged until 2006, when Justice Anthony Kennedy wrote an opinion in the case stating that a wetland should be under WOTUS protection if it shares a “significant relationship” with navigable waters, meaning that the waters In the wetlands you will eventually head downstream.

Under the Obama administration, the EPA and the military have more defined the “significant relevance” standard, said Scott Strand, senior attorney at the Center for Environmental Law and Policy. Strand said the rule did not last long.

“That became controversial and eventually it was over,” he said.

Courts across the country issued injunctions against the Obama-era ruling, and then the Trump administration reversed it entirely in 2019. The following year, the Biden administration again asked the EPA to reconsider the rule, and in late December, the EPA finally issued its ruling. . Latest version.

But Sackett’s case could bring the agency back to the drawing board, according to Paul Potts, president and CEO of the Wetlands Initiative.

“The issue in this case is to what degree the current Clean Water Act gives the EPA the power to regulate isolated wetlands at all,” he said. “If a majority of the court decides it does not, then no EPA rule on the matter is valid.”

A mixture of politics and protection

If the court rules in Sackets’ favor and limits the federal jurisdiction of agencies like the Environmental Protection Agency and the Army Corps of Engineers to regulate the nation’s wetlands, it will be up to individual states.

Tulane’s study found that 24 states rely on the Clean Water Act to regulate wetlands in their states. This means that they will have limited wetland regulations if the Supreme Court narrows the scope of the Clean Water Act.

Leaving regulation to states could lead to a patchwork of protection, according to Maisa Khan, director of policy at the Mississippi River Network.

“Relying on different states to make up different rules ignores how what happens in one part of the Mississippi River has an impact on another,” Khan said.

The Mississippi River Basin is an interconnected system, covering more than 1.3 million square miles and 31 states. Environmental laws in each of these countries affect the others.

For example, fewer wetlands to absorb pollutants in the upper basin means more of those pollutants will end up downriver, adding to the dead zone in the Gulf of Mexico.

The Supreme Court is expected to re-determine Sackett’s case early this year.

Right now, the future of many of the country’s wetlands, especially those that seem cut off from rivers or streams, remains uncertain.

However, life will go on in Emiquon.

Scientists have documented about 93% of Illinois’ threatened and endangered bird species associated with the reserve’s wetlands. Blodgett thinks it could be more than that.

“I’m sure the remaining 6 or 7% are there,” he said as he looked across the wetlands. “We just didn’t have the right person in the right place at the right time to see him.”

Madeline Heim, a reporter for 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 he An editorially independent reporting network based in the University of Missouri School of Journalism.

Public media harvesting It is a collaboration of public media newsrooms in the Midwest headquartered at KCUR in Kansas City.