Is it causing a race to the bottom?
By Paul J Sniadecki, MLSA Board Director
On May 23, 2023, the Supreme Court of the United States (SCOTUS) issued yet another ruling in a dispute involving the protection of wetlands as required by the Clean Water Act (CWA) of 1972. Over the years many legal challenges have alleged that Congress never intended for the definition of the “Waters of the United States” (WOTUS) to be broadly viewed. Rather, the arguments have insisted that WOTUS should be narrowly construed, which would free up more land for human development projects. The prior National
Administration, and the current Administration, both issued definitions for WOTUS in an attempt to resolve the many differing court rulings. The current Administration’s definition included wetland areas that were more commonly considered a wetland.
Now, the recent holding in the SACKETT decision provides, in essence, this definition:
The Clean Water Act extends only to wetlands that have a continuous surface connection with “waters” of the United States — i.e., with a relatively permanent body of water connected to traditional interstate navigable waters, 33 U.S.C. § 1362(7) — making it difficult to determine where the water ends and the wetland begins.
The real-world impact of this new definition is starting to come into focus. The North Carolina Legislature quickly enacted laws to change the state’s protections to be “no greater than National.” In February 2024, Indiana Gov. Eric Holcomb signed the first bill to hit his desk in the 2024 legislative session… one further eroding wetlands protections by redefining certain, protected wetlands to a less regulated class.
The Indiana Chronicle news source provided this succinct analysis: “…Environmental groups and experts note that wetlands are vital for soaking up excess nutrients in soil — especially elements like nitrogen and phosphorus, which are common ingredients in fertilizer that can leach from farmland — and preventing them from creating problems elsewhere.
“Wetlands also catch and hold excess stormwater, reducing flooding on that landscape. Additionally, they help cleanse underground aquifers. That’s important, given that about 70% of Indiana residents rely on groundwater for at least part of their drinking water supply, according to the Indiana Department of Environmental Management…”
Tennessee and other states are also in the process of changing their wetland protections. A recent article by Caitlin Looby and Madeline Heim of the Milwaukee Journal Sentinel provided this on-point information:
“…Wetlands act as nature’s kidneys by filtering out pollutants and sediment before they head downstream. They can slow flooding during extreme rain events and, conversely, delay the onset of drought. Wetlands are also important habitats for migratory birds and waterfowl as well as spawning grounds and nursery areas for fish.
‘States’ reactions to the Sackett decision have largely been in step with how they’ve acted toward wetland regulation in the past’, said Marla Stelk, executive director of the National Association of Wetland Managers. While some have rolled back wetland protections, others have beefed theirs up. But water isn’t confined to state boundaries. If one state weakens or gets rid of protections, it’ll affect others — and in this case, that would include Wisconsin.”
And: “Wisconsin, Illinois and Michigan — which have stiffer wetland protections — share Lake Michigan with Indiana, so anything Indiana does will affect everyone”, said Melissa Scanlan, director of the Center for Water Policy at the University of Wisconsin-Milwaukee.
The states that share that water will have to “pick up the slack” to keep it clean, said Brian Vigue, policy director at Audubon Great Lakes.”
Perhaps the most chilling observation in the Milwaukee Journal Sentinel is: “..The people losing out the greatest are those that are downstream from states that decide to decrease their level of protection,” said Maria Stelk, with the National Association of Wetland Managers. These rollbacks encourage “a race to the bottom,” Stelk said.