Page 9 - SDWF Out of Doors

Out of Doors 9 May - July 2023
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 The sun sets on a wetland northwest of Hartford,
Many conservation groups disagree with the South Dakota. (Joshua Haiar/SD Searchlight)
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.
“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.
“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.