Supreme Court wetlands decision has SD water advocates worried

A recent U.S. Supreme Court wetlands decision may have implications for wetlands in South Dakota, which has a law that says state environmental regulations and rules cannot be more strict than federal ones.

A wetland is generally viewed as an area of land that is covered or soaked with water for at least part of the year. On May 25, the Supreme Court determined that the federal Clean Water Act only applies to wetlands that are always connected via surface water to “navigable” waters, such as rivers or lakes that have enough water volume and depth for boat travel. That decision came in response to a lawsuit from an Idaho couple who disputed the Clean Water Act’s applicability to their building plans. 

Conservation groups react

Many conservation groups disagree with the ruling. They point out that a wetland does not need a surface water connection to interact with other water. For example, preliminary findings from a study showed the Big Sioux River is exchanging water with underground aquifers near Watertown via subsurface connections. 

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“This ruling defies science, the law and common sense,” said Jared Mott, conservation director for the Izaak Walton League of America, which advocates for healthy wildlife and habitats, and clean water.

Jim Murphy is the director of legal advocacy for the National Wildlife Federation. He has worked on Clean Water Act issues for more than two decades and has represented environmental organizations before the U.S. Supreme Court. He said the decision will “scale back regulations and make it easier for development to occur.”

“The decision disincentivizes producers to conserve wetlands where selling the area to a developer previously wasn’t an option,” Murphy said. “Because that wetland was previously protected.”

Wetlands purify water by trapping sediment, pollutants and livestock waste. Wetlands can also absorb large amounts of water, helping mitigate flood risks. And they provide essential habitats for numerous species. 

Impact in South Dakota

Some wetland advocates worry the Supreme Court’s decision means states are now in charge of protecting many of the wetlands that are no longer protected by the Clean Water Act.

“And that’s not great, given the state’s relatively hands-off approach to water regulations,” said Jay Gilbertson, who manages the East Dakota Water Development District, based in Brookings.

That is a view shared by Brad Johnson, president of South Dakota Lakes and Streams and a former chairman of the state Board of Water and Natural Resources.

Half the nation’s wetlands just lost federal protection. Their fate is up to states.

“Only in the most egregious cases does the state use the enforcement tools they have,” Johnson said. “The state will always side with agriculture, not the environment.” 

Gilbertson and Johnson are also concerned about a state law that says no environmental rule “may be more stringent than any corresponding federal law, rule, or regulation governing an essentially similar subject or issue.”

“And so, is the Supreme Court’s definition of a wetland now the state’s?” Gilbertson asked.

The state Department of Agriculture and Natural Resources “is still evaluating the full impact” of the Supreme Court opinion, department spokesperson Brian Walsh said in an emailed statement. He said the opinion “does provide welcome clarity on the federal government’s authority under the Clean Water Act, which we believe is a victory for South Dakota and our agricultural community.”

U.S. Rep. Dusty Johnson, R-South Dakota, issued a statement following the Supreme Court’s decision. Johnson said the decision “is a huge win for rural America. Navigable waters cannot include every small puddle, stream, and ditch. I’m glad our agricultural producers will finally have some certainty. I’ll continue working with my colleagues in Congress to prevent the Biden Administration from placing overly burdensome regulations on our producers.”

Aspects of federal impact uncertain

Wetlands in South Dakota have been afforded protection under state administrative rules that define wetlands as “areas inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, including swamps, marshes, bogs, and similar areas.” The rules require a federal permit to fill wetlands, and the permits are issued by the U.S. Army Corps of Engineers rather than state regulators.

The corps generally has had authority over wetlands with multiple kinds of connections to lakes and rivers, including underground or temporary connections. However, given the Supreme Court’s new definition of what constitutes a connection, it’s unclear if the corps will continue overseeing wetlands that do not have a permanent surface connection.

“We have had minimal to no guidance at this point,” said Steve Naylor, South Dakota wetland program manager with the U.S. Army Corps of Engineers. “It’s just too early to tell.”

Travis Entenman, managing director of Friends of the Big Sioux River in Sioux Falls, said in a statement that while it is too early to know the precise ramifications, “Overall, this will be a big blow to water quality protections and a serious narrowing of the Clean Water Act.”

Some wetlands are unlikely to be impacted, according to Todd Frerichs, of the U.S. Fish and Wildlife Service in South Dakota. Those include wetlands that have been voluntarily protected by easements, publicly owned wetlands, and those protected because of a federal requirement that says farmers who convert wetlands risk losing eligibility for agricultural subsidies.

Frerichs said the Fish and Wildlife Service protects about 750,000 acres of wetlands in the state, including about 600,000 through voluntary agreements with landowners.

“Changes and debates about the Clean Water Act do not not impact these easements,” Todd Frerichs said.

EDITOR’S NOTE: Brad Johnson, who is quoted in this story, has worked periodically as a freelance reporter and commentary writer for South Dakota Searchlight.