Wetland Protections Remain Bogged Down in Mystery 

It is mind-bog-gling, syllable pun intended, that scientists still do not know how many wetlands lost protection in last year’s crippling of the Clean Water Act by the Supreme Court. A new peer-reviewed study in the journal Science said the range of possible protection loss is between a fifth of nontidal wetlands to nearly all of them.

Lead author Adam Gold, a watershed researcher for the Environmental Defense Fund, said the wild uncertainty is because the court arbitrarily created a new standard for federal protection divorced from the science of how wetlands support larger streams, rivers, lakes and the ocean.

The Sackett case involved an Idaho couple who sued after the Environmental Protection Agency stopped their backfilling of a lot near a lake to build a home. The court was unanimous in saying that in the case of that couple, the EPA overstepped its authority. But a 5-4 conservative majority, led by Justice Samuel Alito, a long-time skeptic of both EPA authority, and what constitutes any kind of pollution, went a fateful extra step.

Alito famously said that carbon dioxide from fossil fuel burning, a key contributor to global warming, is not a pollutant. That is despite studies tying carbon dioxide to skyrocketing rates of childhood asthma. A 2011 study in the journal Asthma and Allergy, said the parallel increase of global asthma and carbon dioxide emissions is “remarkable.” There is evidence linking elevated carbon dioxide to longer pollen seasons.

On wetlands, Alito’s razor-thin majority instituted an “eyeball” test. The court said a wetland merits federal protection only if it is “indistinguishable” from larger waters, evidenced by a “continuous surface connection” to them.

Court Rejects Decades of Science

The ruling was hailed by industrial and agricultural polluters and developers. Groups that filed briefs against the EPA’s authority included the US Chamber of Commerce, the American Petroleum Institute, and the National Association of Home Builders. The Chamber of Commerce said the ruling put an end to a  “tortured definition” of water protection that “threatened to strangle projects with years of red tape.”

But the court’s tortured institution of a visual test for continuous water in wetlands rejected decades of federal wetlands science, much of it conducted under the administrations of Republican George W. Bush and Democrat Barack Obama.

Federal reports found that all types and sizes of nontidal wetlands, that is places without visible, continuous surface connections, still serve critical downstream ecosystem functions. Some are seemingly far from large bodies of water. In others, water flows into underground aquifers. In others still, the soil is saturated but surface water is visible for only part of the year.

And then there are ephemeral streams that run only during rainfalls. A 2008 EPA report published during the Bush administration said, “Given their importance and vast extent, it is concluded that an individual ephemeral or intermittent stream segment should not be examined in isolation.”

Years later, a 2015 EPA report published during the Obama administration said, “All tributary streams, including perennial, intermittent, and ephemeral streams are physically, chemically, and biologically connected to downstream rivers.” It emphasized there is “ample evidence that many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters. Some potential benefits of these wetlands are due to their isolation rather than their connectivity.”

That left Gold with the unenviable task of trying to fit a square peg of data into the round hole of nonsense—that one must see water in a wetland for it to be wet enough to be a wetland. Basically, he found out that any future permitting disputes between developers and federal agencies, especially for inland, nontidal wetlands, will likely depend on legal decisions of “wetness.”

For instance, if just geographically isolated wetlands were removed from protection, that would amount to 19% of the nation’s 90 million acres of nontidal wetlands. If a court ruled that a wetland must be flooded for more than a month during the growing season, that would knock out 61% of wetlands from federal protection. If a wetland needed to be semi-permanently flooded, that would remove 91% of acreage from protection.

“I was surprised by the uncertainty,” Gold said in a telephone interview. “A reason it is so hard to determine is because the language used by the court is neither scientific nor objective.” He said the high court’s insistence on a ‘continuous surface connection’ as a condition for protection “are subjective words that are not defined by anything related to how wetlands work. If we start parsing out wetland protection by how ‘wet’ they are, it is highly unclear where this all ends up.”

Wetlands Are Environmental Heavyweights

What we do know is that wetlands are an underrated champion of the environment, the economy and climate mitigation, despite representing less than 6% of land in the contiguous United States. Wetlands are the nurseries for commercial and recreational fisheries, which generated $321 billion and supported 2.3 million jobs in 2022, according to a report last year by the National Oceanic and Atmospheric Administration. Along with anglers, wetlands are the critical backdrop for hunters and wildlife watchers, who spent $400 billion in 2022, according to a report last year by the US Fish and Wildlife Service.

Yet, the nation is losing ground on wetlands. A report this year by the US Fish and Wildlife Service found between 2009 and 2019, the nation lost enough acreage of forest and scrub wetlands to equal the size of Rhode Island. That cannot happen when so many studies also show how wetlands are a carbon sink.

Globally, wetlands such as peatlands, mangroves, salt marshes, and seagrass meadows cover 6% of the world’s surface. But they sequester a third of the world’s organic ecosystem carbon. A 2022 study in the journal Science said the function of wetlands as a climate workhorse makes preserving them a matter of “utmost importance.”

Losing so many acres of wetlands also cannot happen when the EPA says wetlands are “biological supermarkets” for insects and small fish that are feasted on by larger creatures: fish, reptiles, amphibians, birds, and mammals. The agency says wetlands are the sole home for more than a third of the nation’s threatened and endangered species. Nearly half of threatened and endangered species dine in, or seek shelter in, wetlands during their lives.

It also cannot happen when wetlands literally save property and lives by being buffers against winds and storm surges. A 2020 study in the Proceedings of the National Academy of Sciences found that wetland losses in Florida between 1996 and 2016 resulted in an additional $430 million in property damage from Hurricane Irma in 2017.

A 2021 study in the journal Global Environmental Change found that globally coastal wetlands save $447 billion in damages and 4,620 lives a year. A 2019 study in the journal of Marine and Freshwater Research found that the world’s wetlands deliver $47 trillion a year in ecosystem services. The prime ones are erosion and flood control, waste treatment, water purification, recreation, and tourism.

States Offer Unwieldy Checkerboard of Wetland Protections

None of those wetland benefits registered with the Supreme Court majority that now demands an “eyeball” test of surface water to determine if a wetland is a wetland. Such a test leaves protection to the mercy of the states.

An analysis by the Environmental Law Institute found that 24 states do not independently protect their wetlands, relying completely on the Clean Water Act. The map of the states with no protections and those with their own protections closely mirrors the red and blue maps of presidential elections. Most states in the South and the Great Plains have no protections, thus leaving their wetlands at the highest risk of destruction (though notable exceptions include the Everglades wetlands in Florida and prairie pothole wetlands in Minnesota).

None of that makes sense when everyone (except perhaps five members of the Supreme Court) knows that pollution from one state can easily travel downstream into another state. Even Justice Brett Kavanaugh, who this year voted in a 5-4 majority to block EPA rules to limit power plant and industrial pollution from crossing state lines, joined the court’s three liberals, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson in saying the new test of a “continuous surface connection” raises all kinds of questions.

“How does that test apply to the many kinds of wetlands that typically do not have a surface water connection to a covered water year-round—for example, wetlands and waters that are connected for much of the year but not in the summer when they dry up to some extent?” Kavanaugh wrote. “How ‘temporary’ do ‘interruptions in surface connection’ have to be for wetlands to still be covered?

“How does the test operate in areas where storms, floods, and erosion frequently shift or breach natural river berms? Can a continuous surface connection be established by a ditch, swale, pipe, or culvert?”

That is why Adam Gold found it so hard to come up with a firm number of how many wetlands have lost protection. “No one likes uncertainty,” Gold said. “Not the regulators, not the permit applicants, not the scientists…. It is very clear what a wetland is. But now it’s unclear what protections they have.”  

That is because for the majority of the Supreme Court, a wetland where the water is out of sight is a wetland out of mind.