Study says state wetlands are at risk, but Wisconsin has protections others don’t

A new study claims a U.S. Supreme Court ruling threatens millions of acres of Wisconsin wetlands, but regulators and policy experts contend Wisconsin has better wetland protections than other states.

The Union of Concerned Scientists released a study Wednesday that found the Sackett decision risks 30 million acres of wetlands across Upper Midwest states, including 6.1 million acres in Wisconsin. Altogether, the region’s wetlands are estimated to provide nearly $23 billion in annual flood mitigation benefits, with $4.56 billion of that in Wisconsin alone.

The court’s conservative majority ruled 5-4 last year in favor of Idaho couple Chantell and Michael Sackett, finding only wetlands that are clearly connected to other waterways may be regulated under the Clean Water Act. The decision meant a loss of federal protections for more than half of the nation’s wetlands.

Relying on peer-reviewed research, the study’s author Stacy Woods said wetlands provide $745 in benefits per acre to homes. She said wetlands and those benefits are more at risk of being degraded or filled by farms after the ruling, noting research shows agriculture has been the main driver of wetland loss over the last few centuries.

“The rapid growth of agriculture is the single biggest culprit. So unfortunately, since the Supreme Court’s decision that resulted in changes to the Clean Water Act removed federal protections from many of the remaining wetlands, we are poised to see industrial agriculture and other polluting industries even further damage and destroy wetlands with our communities paying the price,” said Woods, research director for the group’s Food and Environment Program.

A spokesperson with the Wisconsin Farm Bureau said the group was unable to comment on the study.

Policy experts, advocates say state has better protections

In Wisconsin, farmland covers 13.8 million acres, but the amount of land in farms has declined by almost 10 million acres since 1935. Wetlands crucial for filtering pollution and holding back floodwaters also face threats from urban and rural development, forestry practices and climate change. The state has already lost half of its wetlands over time.

Even so, Erin O’Brien, policy programs director for the Wisconsin Wetlands Association, said the group didn’t anticipate a significant increase in permitted filling of wetlands.

“The (Sackett) decision wasn’t great, especially for those states that don’t have their own programs,” O’Brien said. “But in Wisconsin, I think it would be inaccurate to say there’s a bullseye on the back of 6 million acres of wetlands because the vast majority of those wetlands are still protected under state law.”

The Wisconsin Constitution, court cases and state regulations protect wetlands. The state requires developers to request an exemption or obtain permits for projects that affect wetlands greater than a certain size, according to David Strifling, director of the Water Law and Policy Initiative at Marquette University Law School.

However, some smaller wetlands now lack federal protection due to the Supreme Court ruling because lawmakers exempted discharges into some urban and rural wetlands in 2017.

“That’s the real delta here, in terms of the impact in Wisconsin, the wetlands that will now be completely unprotected under either federal or state law, and the (Department of Natural Resources) did not have an estimate for that number,” Strifling said.

Prior to the Sackett decision, around 20 percent of wetlands in Wisconsin were nonfederal or weren’t subject to federal regulation. While many wetlands may no longer fall under federal oversight, DNR staff say not every such wetland would be exempt from state permitting.

Tom Nedland, DNR Waterway and Wetland Policy Section Manager, said developers must first obtain documentation that a wetland doesn’t fall under federal oversight if they want an exemption from state permitting.

“At the state, we really can’t make a determination as to what’s a federal wetland and what isn’t,” Nedland said. “We don’t have federal oversight.”

The DNR only tracks projects that require state wetland permits rather than all wetland acres that don’t require oversight.

State data shows net gain of wetlands in recent years

State data shows developers permanently filled around 620 acres of wetlands in the last three years. Overall, Wisconsin gained around 1,000 acres through restoration and mitigation projects.

O’Brien said people assume the state is losing hundreds or thousands of acres each year, which isn’t the case.

“We’re doing pretty good right there,” O’Brien said. “The sky wasn’t falling in the way that some people maybe were concerned that it would.”

While Wisconsin has more protections, Woods noted other states like the Dakotas, Nebraska and Iowa rely solely on federal regulations.

“Even though Wisconsin offers state-based protections, it’s incredibly important to continue those protections and also to be invested in these federal wetland protections,” Woods said.

The study recommends bolstering federal funding and incentives for wetland protections under the next farm bill to encourage restoration and prevent further losses. The recommendations include increasing funding for the Conservation Stewardship Program and Environmental Quality Incentives Program, which strengthen wetlands by promoting sustainable farming practices, to $4 billion and $2 billion each year respectively.

Woods said they’re requesting just a fraction of the estimated $7.7 trillion in ecosystem benefits that wetlands provide each year. The current farm bill has been operating under an extension that expired in September. Wisconsin U.S. Sen. Tammy Baldwin and Republican governors called on Congress this week to pass a new farm bill by the end of the year.