Wetlands in Wisconsin may fare better than other states after Supreme Court limited federal regulation

Wetlands in Wisconsin are likely to see less harm than other states after a recent U.S. Supreme Court ruling significantly reduced the authority of federal regulators to prevent pollution into certain wetlands.

The conservative court recently ruled in a 5-4 vote that only wetlands with a “continuous surface connection” that join other large waterways like lakes and rivers may be regulated under the Clean Water Act. Wetlands that are separated by berms or dikes would no longer be covered under federal regulation despite science that shows all waters are connected.

The decision stemmed from a case brought by Idaho couple Chantell and Michael Sackett, who filled a lot on their property with dirt to begin building a home. The Environmental Protection Agency said they violated federal law because the land contained wetlands near a ditch that fed a creek flowing into Priest Lake, and the Clean Water Act bars pollution into “waters of the United States.”

Michael Cain is co-chair of the public trust and wetlands working group for Wisconsin’s Green Fire. He served for more than three decades as an attorney for the Wisconsin Department of Natural Resources, where he worked on development and enforcement of the state’s wetland programs.

“I’ve talked to a number of different people, including folks at the Department of Natural Resources, who think that they have shrunk the jurisdiction over coverage over approximately 50 percent of the nation’s wetlands and ephemeral waters, which is troubling,” Cain said.

Wisconsin has already lost about half of its wetlands over time. About 5.3 million acres of wetlands remain. The Department of Natural Resources said in a news release Friday that the court’s ruling doesn’t change Wisconsin’s wetland regulations under state law.

“While the Sackett decision will likely remove federal jurisdiction and oversight from a large amount of Wisconsin’s wetlands, the DNR will continue to implement the State’s uniform wetland regulatory program for projects that propose to impact wetlands in order to preserve and protect these critically important resources,” said Tom Nedland, DNR Waterway and Wetland Policy Section Manager.

In Wisconsin, developers have to request a state exemption or get a permit for projects that would affect wetlands. The state requires developers to avoid discharges to wetlands when possible and minimize or mitigate harm from effects that can’t be avoided.

Cain said Wisconsin is likely to see fewer effects from the ruling because of the state’s protection of waters through the Wisconsin Constitution, courts, and legislation. The Public Trust Doctrine protects the state’s navigable waters and wetlands.

In addition, legislation enacted in 2001 safeguarded state wetlands that lost protection under the Clean Water Act following another Supreme Court ruling known as the SWANCC decision. That ruling stripped federal oversight of about a million acres of isolated wetlands in Wisconsin. It passed the state Legislature with bipartisan support.

“There still are some exemptions that are granted for some activities in nonfederal wetlands, and so it will have some direct impact in Wisconsin as far as the regulation,” Cain said.

David Strifling agrees. He’s director of the Water Law and Policy Initiative at Marquette University Law School. He said smaller wetlands would now lack federal protection in Wisconsin after Wisconsin lawmakers exempted discharges into some urban and rural wetlands in 2017.

The law allowed discharges into urban wetlands up to an acre in size as long as they’re not rare, high-quality wetlands. It also allows discharges into rural wetlands spanning three acres or less, but only if the developments discharging into the wetlands are related to agriculture.

“To me, that’s not that small, and that’s a pretty large group of wetlands that are now completely unregulated,” Strifling said. “Because assuming there’s no federal jurisdiction over them under Sackett, there’s also no state permit required for those categories of wetlands.”

It’s unclear just how many state wetlands may be affected under the decision, said Erin O’Brien, policy programs director for the Wisconsin Wetlands Association. She said other policies related to floodplain zoning and stormwater ordinances also seek to reduce development effects on waterways and wetlands.

“I think it’s going to be important to see some interpretation from the Department of Natural Resources sooner rather than later so that property owners have a clearer understanding of the extent to which this federal ruling affects what they can do on their property or what they can do with their development plans,” O’Brien said.

In 1991, Wisconsin became the first state in the nation to adopt water quality standards to bolster protections for wetlands.

“As far as state level regulations go, I would characterize them as fairly robust, especially given that some states don’t regulate these discharges at all,” Strifling said.

The intersection of state boundaries could now see stark differences in regulation of wetlands that serve a vital role.

“All waters are connected. When we take care of wetlands, when we take care of hydrology, it takes care of us,” O’Brien said. “I’m talking about things like flood control and water quality and groundwater supply — drinking water supply.”

The court’s decision went against an opinion by former Justice Anthony Kennedy in a 2006 case that sought to clarify what wetlands required federal regulation. Justices in the case were split, but Kennedy proposed determining whether wetlands had a “significant nexus” to larger waterways on a case-by-case basis.

The uncertainty of the ruling placed pressure on the EPA and Army Corps of Engineers to better define “waters of the United States.” The Obama administration sought to expand federal protections for wetlands that were rolled back under the Trump administration.

Prior to repealing Obama-era regulations, former DNR Secretary Preston Cole said the changes could eliminate protections for a large share of Wisconsin’s more than five million wetlands. At the time, business groups like Wisconsin Manufacturers and Commerce said the repeal was a win for landowners, saying Congress intended to regulate waters that can float a boat instead of a “puddle.” WMC declined to comment on the effect of the Sackett ruling in Wisconsin.

In December, the Biden administration finalized regulations that would once again strengthen protections for small wetlands and waterways, but two dozen Republican-led states sued to block them from taking effect. The Sackett decision is likely to affect ongoing litigation.

Justice Brett Kavanaugh joined three liberal justices and said the decision would threaten protection of wetlands along the Mississippi River that are separated by its levee system and serve a role in flood protection. But Republican lawmakers have argued that regulatory overreach has burdened farmers and landowners.

The Wisconsin Farm Bureau Federation referred to comments by the organization’s national arm, which said the EPA overstepped its authority under the Clean Water Act.

“The justices respect private property rights. It’s now time for the Biden administration to do the same and rewrite the Waters of the United States Rule,” American Farm Bureau Federation President Zippy Duvall said in a statement on the ruling. “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.”

Others say they’re frustrated with the ruling, including Wisconsin Farmers Union President Darin Von Ruden.

“What that did was allow entities to not only drain waterways, but also build in places where they probably shouldn’t be building,” Von Ruden said. “Which ultimately means that we could see contamination of our water system.”

Some environmental groups are calling on Congress to clarify the intent of the Clean Water Act, but Strifling said that’s unlikely.

“It hasn’t happened in the last 50 years,” he said. “There’s no reason really to expect it now.”