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Prairie pothole wetlands, like these in North Dakota, are drying up because of heat and drought and agricultural development. KRISTA LUNDGREN / USFWS

USA - Which Wetlands to Protect? Supreme Court Will Soon Decide

The U.S. loses about 60,000 acres of wetlands a year. An upcoming Supreme Court decision could settle decades of legal ambiguity about which wetlands should get federal protection under the Clean Water Act, bringing major changes to how these vital ecosystems are managed.

In 2007 an Idaho couple, Mike and Chantell Sackett, bought a building lot across the road from a wetlands complex that drains into a creek and then into Priest Lake, with plans to build a new home. They began to fill in a spot on the property with gravel and sand until the U.S. Environmental Protection Agency stopped them under authority of the Clean Water Act, claiming it was a wetland adjacent to the lake. They were told to remove the fill and reclaim the site by fencing it off for three growing seasons. Failure to do so would cost them more than $30,000 in fines each day.

The couple refused and sued the EPA in 2008, arguing that their property was not wet. It touched off a lengthy legal saga that continues and has now come before the U.S. Supreme Court for the second time. The case first reached the Supreme Court in 2012 on the question of whether the Sacketts had standing to challenge the EPA in federal court. They did, the court ruled.

When their suit came again before a federal court in 2019, the judge ruled the EPA could require the permit, and the 9th Circuit Court of Appeals upheld that decision. The Sacketts, whose case has become a cause célèbre for the property rights movement, appealed to the Supreme Court, which heard oral arguments as the first case of this term. A decision is expected next year, and it may clearly define what a wetland is — for good or ill, depending on one’s perspective.

“This case has the potential to drastically reduce the number of wetlands that would be protected,” a legal expert says.

Currently, the law governing wetland protection is muddled. The Clean Water Act of 1972 holds that federal protections apply to navigable waters, which are referred to as the “waters of the United States” (known as WOTUS). Wetlands often aren’t navigable, yet they help keep navigable waters clean and healthy. The Clean Water Act left it to federal regulators to determine exactly what should be should be included under “waters of the United States,” and court decisions have so far failed to clarify the issue.

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A previous Supreme Court case, in 2006, only added to the confusion when the opinion split three ways. A plurality of justices, in an opinion written by Justice Antonin Scalia, found that a “continuous surface connection” was the test to define a wetland to find protection under the Clean Water Act. But a separate opinion, by Justice Anthony Kennedy, found there needed to be a “significant nexus” to navigable waters, which means that if there wasn’t an obvious surface connection, research was needed to show that the wetlands played a role in assuring the integrity of the larger body of water, for wildlife habitat or for other ecological value.

Subsequent decisions by lower courts have said that either Kennedy’s opinion should be followed or that either opinion may be used. This lack of clarity has meant the protection of isolated U.S. wetlands has been uneven, experts say. While those with a direct connection to navigable waters have largely been protected by the EPA and the U.S. Army Corps of Engineers or had their development somehow mitigated, those without such a direct connection — like the Sacketts’ — have been protected in some places and not in others.

The upcoming Supreme Court decision could settle that ambiguity and bring major changes to how wetlands are managed in the U.S. Legal experts say the ruling could be transformational for the nation’s remaining bogs, swamps, and ponds. “This case has the potential to drastically the reduce the number of wetlands that would be protected,” said Amy Sinden, a professor of environmental and property law at the Beasley School of Law at Temple University. “It depends on how they word [the decision]. It’s unclear where they would draw the line.”

Until the 1970s, the nation’s vast array of swamps, marshes, ponds, and bogs were seen primarily as a barrier to progress, and few saw importance in their natural value.

The soil beneath a wetland is high in nutrients, which makes it prime farm land. The Swamp Land Acts in the mid-19th century transferred wetlands to states if they agreed to drain that land and put it into production. Some 20 million acres of the Florida Everglades were drained as a result. Before European settlement, the lower 48 states had 221 million acres of wetlands; slightly more than half of those are gone and continue to decline, at the rate of about 60,000 acres a year.

Wetlands are one of the highest functioning ecosystems in the world, comparable to coral reefs and tropical rainforests.

American attitudes toward wetlands began to shift markedly in the 1970s, with raised awareness about the state of the nation’s water quality and the passage of the Clean Water Act of 1972. Wetlands are important green infrastructure; among other functions, they are essential to clean water because they remove sediments and pollutants, including chemicals and excess nutrients from fertilizers, sewage discharges, and other sources.

Globally, wetlands provide critical ecosystem services worth $47 trillion a year. This includes buffering shorelines, reducing the intensity and frequency of flooding, cleaning and storing water, and reducing soil erosion. They store more carbon, acre for acre, than other ecosystems, both in the plants that grow each year and, in the long term, in the soil where carbon stores are hundreds or thousands of years old. Wetlands in and around urban areas capture and store excess and polluted runoff from impervious urban surfaces, such as rooftops and pavement.

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