A U.S. Supreme Court decision last week has water quality and wetland advocates around the country concerned, including here in Wisconsin. The Court narrowed the scope of federally protected wetlands. UW-Milwaukee School of Freshwater Sciences professor and director of the Center for Water Policy, Melissa Scanlan, sheds light on the ruling and what it could mean for Wisconsin.
Wetlands are like sponges, they absorb excess water, help control flooding and filter pollutants before water makes its way back into rivers, streams and lakes.
Melissa Scanlan says wetland protections within the Clean Water Act have long been debated.
“There is a long history of uncertainty with various EPA and US Army Corps of Engineers’ rules related to interpreting navigable waters and the definition of Waters of the United States and what that actually means, we’ve had a variety of past Supreme Court decisions on this topic,” Scanlan says.
Under the Clean Water Act, a wetland that fell under federal jurisdiction had certain legal protections.
“In order for a person to fill or dredge a federally protected wetland, they need to get a permit under the Clean Water Act and take steps to avoid harming the wetland,” Scanlan says.
The new Supreme Court decision limits what qualifies as a federally protected wetland.
“The Army Corps will need to determine if a wetland is adjacent to — and I’m quoting from the opinion now — a relatively permanent body of water connected to traditional interstate navigable waters,” Scanlan says. “The wetland has a continuous surfaces connection with that water, making it difficult to determine where the water ends and the wetland begins — that’s the end of the quote."
Scanlan is particularly concerned about the plight of Wisconsin wetlands. Historically the state had a long history of wetland protection.
“But in 2017, the Wisconsin legislature and (then) Gov. Walker changed Wisconsin’s state law related to wetlands to no longer protect all of those wetlands that were considered isolated and not federally protected,” she says. “The only wetlands that are really regulated in the state are the ones that are falling under federal jurisdiction.”
Scanlan says one reason the Supreme Court voted to reign in wetland protection was “because they did not want to have the federal government trampling on what they saw as traditional state jurisdiction to regulate wetlands … The way they’ve drafted this decision, they anticipate that the states will be covering these other wetlands and protecting them,” she says.
Scanlan says just how many wetlands in Wisconsin and across the country will lose federal protection is still unknown.
“But there was an opinion that Justice Kavanaugh drafted and he was joined by (Justices) Kagan, Sotomayor and Jackson where they observed … the Court’s new test is going to leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act with significant repercussions for water quality and flood control throughout the United States,” Scanlan says.
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