US Supreme Court Decision Reduces Protections for Wetlands

By Michael Cain, Chair of the WGF Public Trust and Wetlands Work Group

The US Supreme Court recently rendered a decision which reduced the scope of protections for wetlands and small ephemeral waterways under the Clean Water Act. In the case, Sackett v. EPA, a 5-4 majority of the Supreme Court narrowed the definition of “waters of the US” in a way that will remove protections for approximately 50 percent of the nation’s wetlands and ephemeral waterways.

Wisconsin wetlands may be impacted less than wetlands in other states. The impacts of the decision on protections of Wisconsin wetlands are lessened due to a statute that was adopted unanimously in both houses of the WI Legislature in 2001 in response to an earlier narrowing of the protections of wetland by the US Supreme Court. That statute provides that WI will review projects for “non-federal wetlands” under WI law. However, this will not protect all wetlands in WI due to exemptions for some wetlands that the Legislature put in place in 2017.

The weakening of these standards under the Clean Water Act will have impacts on water quality, flooding potential and fish and wildlife habitat. Four of the US Supreme Court Justices, including Justice Kavanaugh, noted that the decision “departs from 45 years of consistent agency practice, and from this Court’s precedents.”

In 2021, Wisconsin’s Green Fire put together an Opportunities Now report, in partnership with The Nature Conservancy, to assess the impacts of a set of rules that removed protection of 55% of the nation’s wetlands. Read the full Opportunities Now report here: Wetlands and Waterways in Wisconsin: Navigating Changes to the Federal Waters of the United States (WOTUS) Rule. We intend, in the coming months, to update that analysis for the new limits which have been put in place by the Sackett v. EPA decision.