Environmental advocates in Illinois urge state intervention to safeguard wetlands following Supreme Court decision that loosens federal regulations.

Across the country, swamps, marshes, and marshes quietly absorb floodwaters and filter out pollutants. Environmentalists agree that they are one of nature’s best defenses against climate change.

But after a recent ruling by the US Supreme Court, more than half of the country’s 118 million acres of wetlands, environmental firm Earthjustice estimates, will not have federal protection from developers and polluters.

Illinois, which has lost 90% of its wetlands since 1818, is among the most vulnerable states with no statewide protections for wetlands on private property. Those on public lands are still protected.

In a stunning precedent for environmental law, experts say, the decision in Sackett v. The EPA upends more than 50 years of legal protections by limiting the jurisdiction of the Clean Water Act to wetlands conspicuously connected to major waterways.

“(The court’s reasoning) is almost science fiction,” said Richard Lazarus, a Harvard law professor who has represented environmental groups in court.

In states like Illinois, environmentalists are mobilizing to craft legislation whereby local governments must decide if and how to protect these wetlands.

“We’re in the process of building our forces right now,” said Elliot Clay, director of state programs at the Illinois environmental group.

Meanwhile, builders, developers and farmers applauded the decision, accusing the US Environmental Protection Agency of infringing property rights.

Clay said that while the Supreme Court’s decision would remove federal barriers to farmland development and building construction in certain places, flooding and erosion would eventually follow, damaging farmland, residential areas and transportation infrastructure.

“This Supreme Court decision was a really big win for those who believe individual property rights are more important than the collective status of a piece of property,” Clay said. “They can celebrate that in the short term, but people aren’t going to celebrate those kinds of decisions when they start to affect their actual day-to-day way of life.”

What does adjacent mean?

In a 17-year legal battle against the Environmental Protection Agency, Michael and Chantelle Sackett argued that the agency crossed a line when it forced them to halt construction on their property within 300 feet of Lake Priest in Idaho, because they were building on federally protected wetlands without a proper permit.

At issue is what Congress meant by “nearby” when it passed the Clean Water Act in 1972 with bipartisan support “to restore and preserve the chemical, physical, and biological integrity of the nation’s waters.”

The law gives the EPA authority to regulate nearby construction and pollution in “United States waters,” which are defined as “relatively permanent, steady, or continuously flowing bodies of water connected to conventionally navigable interstate waters.” Recognizing the connections between wetlands and streams, oceans, rivers, and lakes, the law also extends protections to their “neighboring wetlands.”

The EPA has held that the wetlands on Sackets’ property are contiguous with Lake Priest because it feeds water into the lake through underground channels.

Sackets argued that they are not contiguous because a man-made ditch separates them from a stream that flows into the lake.

The Supreme Court upheld the Sackets family, noting that when the ditch was built, the wetlands on the Sackets property had lost federal protection even though none of their environmental characteristics were fundamentally altered.

The Illinois Farms Bureau hailed the May 25 decision as a clear rule that would save farmers from having to enlist legal expertise to tend their land as they saw fit.

The National Association of Home Builders joined them, saying that “the decision represents a victory over federal overreach and a win for common sense regulations.”

up to the states

Illinois, like many other states, has relied on federal regulations to protect its wetlands. Now, that responsibility rests with individual states. This worries Scott Strand, senior attorney at the Center for Environmental Law and Policy.

“The Clean Water Act was passed because states were failing,” he said. “The whole point of the law is to deal with the fact that states have not been able or willing to do the job.”

The Illinois Environmental Protection Agency is reviewing the Sackett v. EPA to understand the implications for wetlands and waters within the state.

“How these new considerations (in the court’s decision) will affect Illinois permitting and enforcement decisions cannot be determined at this time,” a spokesperson for the agency wrote in an email to the Tribune.

The Illinois Council on the Environment is calling on Gov. JB Pritzker to issue an executive order that protects as many wetlands as possible so the General Assembly can consider new legislation when it convenes in January.

“I have absolutely no doubt that[the proposed state wetlands law]will happen now,” said Paul Potts, president and CEO of the Wetlands Initiative, a Chicago-based nonprofit.

Wetland protection measures have been introduced in the General Assembly before, most recently in 2020. They faced challenges from farmers and builders lobby groups, which eventually won out.

Clay, who has been organizing several environmental groups to act since the ruling, predicts they will face another uphill battle but remains optimistic.

“The big argument that was made against[the 2020 bill]especially from the business community, was that we don’t need to do that in Illinois because it’s already in federal law. Now that that card is out of the way, they don’t have that card anymore,” Clay said. argument any longer.

Botts and Strand want a state law that would define wetlands based on their soil rather than their visual association with another body of water.

“When they wrote the Clean Water Act, they had no idea that wetlands had a footprint called soil water,” Potts said.

As a result of saturation, flooding, and puddles that occur in wetlands, soils have specific chemical and biological properties that can be distinguished by a standardized in situ soil test.

A common complaint among farmers and developers is that science-based rules require costly and time-consuming expert analysis, which delays projects.

In its statement after the Sackett v. EPA, the Home Builders Association has called for a workable definition of US water that will not lead to “expensive and time-consuming regulatory and permitting requirements.”

These cost and time concerns are points of contention with the soil samples, Potts said.

“It’s not any kind of weird scientific process. It’s not particularly more complicated than doing a survey, and if you’re going to build a building or a house, you have to hire surveyors to go out and do a proper survey anyway,” he said.

Natural sponges and filters

Environmentalists say the Supreme Court’s standards of adjacency also fail to consider the latest scientific understandings of wetlands.

“The majority on the Supreme Court just says, ‘If I can see water, and I can see water flowing from a wetland into a river and back, then it is a wetland. If I can’t, it’s not, Potts said. “From a scientific or technical point of view, this is complete nonsense.”

The main feature of wetlands is that they absorb water, so much of their connections to rivers, lakes, streams, and oceans are through underground networks. There is often no surface water during periods of low rainfall when there is no excess water.

The Great Lakes, for example, are lined with adjacent wetlands that appear and disappear with the fluctuations of the water level. Some of the more robust examples are found along the Indiana sand dunes of Lake Michigan. Although the wetlands in Indiana Dunes National Park have been protected, some of the nearby wetlands outside the park, which also provide homes for insects and amphibians and feeding places for birds and mammals, are now endangered.

Scientists say the sponge-like quality of wetlands makes them invaluable resources for mitigating greenhouse gases and dealing with runoff from intense weather patterns caused by climate change.

Wetlands are great carbon sinks, filtering out pollutants before they can reach major waterways and containing 20% ​​to 30% of global soil carbon even though they only make up 5% to 8% of the Earth’s surface.

Illinois is one of the largest contributors to the nutrient pollution that flows from the Mississippi River into the Gulf of Mexico, creating a dead zone with chronic algal blooms and near-zero oxygen levels. Clay said the state’s negative impact would increase without statewide regulations.

years of scrutiny

During the last three presidential administrations, the Environmental Protection Agency has reinterpreted and revised the definition of a protected wetland. Each attempt faced scrutiny in the courts. Recently, Biden’s Environmental Protection Agency implemented a new definition that was immediately challenged by 26 states and must now be revised to fit the Supreme Court’s narrower standard.

Some environmentalists believe that changes at the federal level will likely require a new or revised law from Congress. But partisan gridlock makes this kind of legislation difficult to pass.

Sackett v. The EPA, along with recent environmental rulings by the Supreme Court, has established the precedent that “if the EPA is trying to enact a significant pollution protection program, it needs to have a very clear congressional mandate,” said Lazarus.

“This is a complete reversal of what the law has been for the past 40 years where you can only defeat an EPA program if you can show the clear meaning (of the law) does not support the agency,” he said.

While the EPA’s power is being rolled back by the Supreme Court, Strand said, “states are not powerless. States have a lot of power to take care of this problem and preserve their environments.”

In Illinois, environmental groups are ready to go.

“Over the next few months, as we begin to put our game plan together for the next legislative session, we’ll need to think about what we need in Illinois,” Clay said. “We’re really going to try to craft a bill that, at least from a Midwestern standpoint, puts Illinois in the lead in terms of wetland protection.”

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