The U.S. Supreme Court limited federal Clean Water Act protections over certain wetlands in a ruling earlier this year. But wetlands that lose federal protection in Ohio will still be regulated, by the state instead of the federal government, because Ohio has robust statewide wetlands standards.
The Court’s ruling in Sackett v. EPA found the Clean Water Act’s reach to be too broad in defining "protected waters." The decision limits the U.S. Environmental Protection Agency’s control to wetlands with a “continuous surface connection” to larger, navigable bodies of water.
Ohio has wetlands that would not qualify for federal protection under that definition. But those lands still would be regulated by the state's long-standing Isolated Wetlands Program, said environmental lawyer Lou McMahon of the McMahon DeGulis firm.
“It doesn't mean that they're not regulated,” he said. “It depends on what the state and local governments do to regulate them, and in Ohio, we have an entirely consistent complementary wetlands regime that governs those isolated wetlands.”
The Isolated Wetlands Program requires those who wish to fill or dredge into a wetland to obtain a permit from the Ohio EPA. The state’s permitting process and deadlines make it “efficient and predictable,” said Vince Messerly, president of the Stream and Wetlands Foundation.
“Once they have a completed application, the permits are deemed approved if the state doesn't either deny or issue the permit within the statutory timelines,” he said.
About two dozen states have some sort of state wetlands regulatory program, according to the Association of State Wetlands Managers. Ohio’s program is the broadest. It regulates wetlands, regardless of size, Messerly said.
There will be more land for the state to regulate as a result of the Supreme Court’s ruling. Messerly said while permit fees attached to applications may help cover some of the costs, it’s possible the Isolated Wetlands Program may need to shift in order to meet demand.
“I don't think in any way that the permitting fees in the program are enough to offset all that,” he said. “So, I wouldn't be surprised if the agency came back to the legislature at some point in time, or the agency would have to shift funding from other programs to help boost that program to accommodate the increase in demand for isolated wetland permits.”
Wetlands, regardless of their size or location, help maintain water quality by filtering out fertilizer and other contaminants.
“Wetlands, even if they're not continuous connections, generally are understood to have ... an important filtering function,” McMahon said. “That's part of how watersheds function. The wetlands are a big part of that.”
Though the ruling raised concerns for some over water quality, Case Western Reserve University law professor Jonathan Adler said clarifying the reach of the Clean Water Act was long overdue.
“There were some Supreme Court decisions on other questions in the 1990s that really made clear that the regulations that the EPA and Army Corps (of Engineers) had issued defining the scope of their own regulation were overly broad and that the agencies needed to take account of that,” he said. “And they really didn't.”
A lot of environmental and conservation work is done at the state and local level, Adler said. But over the last 25 years, the broad terms defined by the Clean Water Act made it difficult for state regulators to know when to step in.
“If we want state and local governments to be most effective at addressing more localized concerns, we want there to be clarity about where federal authority ends and state and local authority begins,” he said. “The lack of certainty over the last few decades has made it more costly and difficult for state governments to figure out how to prioritize what their role should be to help promote environmental conservation.”
The U.S. EPA plans to issue a new definition of “Waters of the United States” that aligns with the court’s decision by September 1. This deadline is an optimistic one Messerly said.
The long-term environmental impact of the Supreme Court’s decision will be revealed over time and vary by state, Adler said, depending on the level and reach of state and local wetlands regulations.
But for homeowners and developers looking to build on or near an Ohio wetland that doesn’t connect to a larger body of water, the court’s decision provides clarity on where to go for approval, McMahon said.
“It just means you don't need a permit from the federal government," he said. “You just need a permit from Ohio.”
