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.
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.
In Louisiana, regulations governing dredge-and-fill permits are still in effect – but they apply only to wetlands in the state’s coastal zone.
In other states, the decision’s ripple effects have already begun. In North Carolina, legislators – urged by development interests – have already stripped protections from wetlands that exceed those established by the new federal definition.
Even in states where laws still protect some of the at-risk wetlands, regulators may not have the capacity to handle permitting and mitigation programs without federal partners, said Rebecca Kihslinger, director of the wetlands program at the Environmental Law Institute, who noted that the Clean Water Act changes will impact all states, including those with state-defined regulatory protections.
Plus, without the EPA, protections are diminished, said Davis, explaining that Louisiana’s coastal-use permitting program only minimizes impacts – it doesn’t block entire developments.
“It’s a very different type of program from the Clean Water Act,” Davis said. “The Clean Water Act is protective.”
Louisiana is still waiting to see how this change will impact the state’s wetlands.
The Tulane Institute on Water Resources Law & Policy predicted a period of uncertainty and confusion as states adopt this new definition and regulatory responsibility. The state’s Coastal Protection and Restoration Authority told The Lens that its officials are still evaluating the impacts of this decision and cannot comment at this time.
So far, it seems as though the state’s coastal wetlands will largely remain protected under the Clean Water Act, because they can be visually traced to “navigable waterways” – due to their tidal connection to the Gulf of Mexico and the Atlantic Ocean.
But experts are concerned that coastal, tidal wetlands could morph into unprotected wetlands – if levees, berms and other man-made structures could be construed as legal separations that cut into the “continuous surface” that the court now requires between the wetlands and the sea.
The decision seems to leave that question up for grabs.
Even the justices who signed onto the Sackett decision can’t agree what test should be used to determine which wetlands are covered by the Clean Water Act. As Justice Brett Kavanaugh wrote in a concurring opinion, “In my view, the Court’s ‘continuous surface connection’ test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents,” he wrote.
The Court’s new definition, Kavanaugh believes, “will 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.”
The long history of private landowners pushing against wetland protections
On Oct. 18 1972, the U.S. Congress passed the Clean Water Act to restore and maintain the integrity of the nation’s waters. The federal government had started to address water pollution through the 1948 Federal Water Pollution Control Act, but the Clean Water Act added wetland protections, among other provisions. The EPA, which was created in January 1970, recognized the importance of wetlands to overall water quality.
With the Clean Water Act in place, the nation’s waters got significantly cleaner, by most measures, though limited monitoring still makes it difficult to detect and warn of harmful substances in bodies of water, according to a report issued last year by the U.S. Government Accountability Office.
But, despite that progress, opponents have been pushing for decades to limit the reach of the EPA.
Since at least the 1990s, landowners have criticized Clean Water Act wetlands protections, alleging that they intrude on private land-use decisions and impose excessive economic burden.
To Jen Powis, managing attorney at the Gulf Regional Office of Earthjustice, the long campaign to narrow the definition of wetlands has been driven by a false narrative – that the federal government was overreaching, by telling people where they could build.
Landowner rights have long been the common thread behind key Supreme Court cases. In 2006, the case Rapanos v. United States questioned the Clean Water Act’s definition of wetlands through the lens of John Rapanos, a landowner in Michigan, who wanted to fill in wetlands to build a shopping center. Justices fractured in their decision and weren’t able to reach a a binding majority opinion; the case was sent back to the Sixth Circuit.
In 2007, a senior scientist from Ducks Unlimited testified before the Senate, hoping to strengthen wetland protections under the Clean Water Act. Even by that time, he testified, an estimated 40 to 80 million wetland acres had lost federal protection because of Supreme Court rulings that had stripped protections from wetlands known as playa lakes, rainwater basins and prairie potholes – all critical habitats for waterfowl to breed, migrate and winter, he said.
This year’s result in Sackett v. EPA resolves the issue raised in the Rapanos case in 2006, said Thomas Douthat, a professor at Louisiana State University’s College of the Coast & Environment. Some say that the Sackett decision tips too far toward the rights of property owners. Or, as Justice Elena Kagan wrote in her dissenting opinion, “There is … a thumb on the scale for property owners – no matter that the Act (the one Congress enacted) is all about stopping property owners from polluting.”
But the Court’s decision was exactly what some industries have long worked toward. At least 30 years ago, Davis remembers how the state’s powerful oil and gas industry began pushing Louisiana’s congressional delegation to lobby for less stringent regulation of wetlands.
When Davis read the language related to U.S. wetlands and waters recently redefined by the Supreme Court, he found it eerily familiar – it mirrors the changes that the oil and gas industry pushed for in the 1990s, he said.
Legally, connected wetlands could be seen as separate
Because of the state’s abundance of wetlands, the infrastructure in Louisiana has been engineered to control floods and to allow for transportation across swampy terrain. But now, the multitude of berms, dikes and roads that intersect with wetlands may be considered a legal separation between these ecosystems and the waters they’ve historically been connected to.
In his concurring opinion, which questioned the Court’s new wetlands definition, Justice Brett Kavanaugh specifically named the levee system along the Mississippi River, because it “would seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side of the levees, even though the adjacent wetlands are often an important part of the flood-control project.”
The new interpretation seems particularly troublesome for Louisiana, where the state’s human-built infrastructure “puts those wetlands at risk of losing all federal protections from pollution,” said Jim Murphy, director of legal advocacy at the National Wildlife Federation. The ruling “also puts at risk all of the wildlife that depend on those wetlands,” he said.
In a city like New Orleans, where the water table is so high that shovels dug into the ground can reach water within a few feet, the connections between the water systems may be more evident.
But that connection is true nationwide, Murphy said, describing how wetlands play an essential role in creating healthy water supplies, providing habitat for wildlife and mitigating flooding for downstream communities.
Any potential degradation of these wetlands could affect water quality in neighboring streams and lakes, which would suffer without what Murphy describes as “the Brita filters of our water system.”