LA - Louisiana’s inland, non-tidal wetlands are most at risk to lose protections from weakened Clean Water Act

Louisiana’s inland wetlands are at risk of losing federal protections, after a court decision changed the way wetlands are legally defined.

The change, which took effect last month, limits the authority of the Environmental Protection Agency (EPA) and dramatically weakens the Clean Water Act, a pollution control act that celebrates its 51st anniversary today.

It was a court-imposed policy change. In May, the U.S. Supreme Court, in its decision Sackett v. EPA, ruled that an Idaho couple, Michael and Chantell Sackett, should be able to backfill a lot and build a lakeside home – despite the EPA’s stop-work notice, issued to protect wetlands on part of the lot.

“No elaborate analysis is required to know that the Sacketts’ land is not a water, much less a water of the United States,” wrote Justice Clarence Thomas in a concurring opinion supporting the 5-4 majority decision.

The decision is now reverberating far beyond the small lot in Idaho.

The provisions, which took effect on September 8, change how the federal government recognizes “waters of the United States” through the Clean Water Act and struck down key federal protections for many of this country’s wetlands – those not visibly connected to “navigable waters.”

Among the wetlands that are now at risk are hundreds of millions of acres, including some of the nation’s most critical waterfowl breeding habitats.

The at-risk wetlands are at much greater risk of pollution without the protections of the Clean Water Act, which prohibited the “discharge of dredged or fill material into the ‘waters of the United States,’” – a term that once was interpreted to extend to all wetlands. But now, the U.S. Army Corps of Engineers can legally issue permits within many wetlands, allowing them to be dredged or filled in.

Despite court-imposed changes to the Clean Water Act, environmental advocates believe that protections will remain in place for the Bayou Sauvage Urban National Wildlife Refuge (pictured), a 30,000-acre marsh adjacent to Lake Pontchartrain, which is both protected as an urban refuge and because of its connection to the lake, as required by the Supreme Court’s new interpretation of the Clean Water Act. But across the nation, similar wetlands, bordered by levees, could lose protection from pollution, dumping and development.

Some environmentalists even argue that, by diminishing the power of the Clean Water Act, the court has also opened the door to other people who might want to “attack the statutes that protect our health and safety.”

The decision changes the federal legal definition of wetlands, but does not change what a wetland is scientifically, said Mark Davis, director of the Tulane Center for Environmental Law. Wetlands haven’t changed, he said, and they face many of the same threats that they did when the Clean Water Act was passed more than a half-century ago.

Inland wetlands, like those in Acadiana, most at risk

Scientists typically refer to a wetland as an area where water covers the soil all year or for varying periods of time during the year. There are two types of wetlands: coastal or tidal and inland or non-tidal wetlands. Both are found in Louisiana.

Louisiana is home to approximately 40% of coastal wetlands in the continental United States. Not only do they provide habitat for fish, birds and other wildlife, they also help improve water quality and act as “speed bumps,” protecting people and infrastructure from damaging storm surges.

Coastal wetlands rely on the ebb and flow of the tides from the ocean. The decision in May will have a lesser effect on many coastal wetlands, which are regulated by Louisiana Coastal Management Regulations, and also fall into the bounds of the Supreme Court’s new interpretation of the Clean Water Act, which requires that wetlands be connected to “navigable water.”

But the Court’s new interpretation could bar Clean Water Act protections from inland wetlands that lack “a continuous surface connection to” a body of water such as a lake, river or ocean in a way so that there is “no clear demarcation” between the two.

That could strip protections from the swamps and marshlands of Acadiana and other regions away from the Gulf Coast. Inland or non-tidal wetlands are most often found on floodplains along rivers and streams, along the margins of lakes and ponds, and in other low-lying areas where groundwater can intercept the soil surface.

Critics of the decision note that even wetlands that seem geographically isolated are connected through hydrology, to rivers, lakes, streams and groundwater. Within the nation’s larger ecological system, wetlands are sometimes referred to as “watershed kidneys,” which help to process pollution and excess nutrients and to store water in a way that can prevent flooding.

Though swamps are connected through those larger hydrological systems, they do not have a continuous surface water connection to navigable waters, as required by the Court’s new interpretation of the Clean Water Act, said Davis. That puts them most at risk. Swampland depends on dry periods that last long enough for trees to germinate.

Since September, when the updated legal definition of wetlands went into effect, more than half of the country’s 118 million acres of wetlands were left unprotected, according to estimates. Nearly half of U.S. states lack independent regulations for these newly vulnerable wetlands, according to the Environmental Law Institute.

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