States at the forefront of fights over wetlands protections after justices slash federal rules

By JOHN FLESHER and MICHAEL PHILLIS

Associated Press

A month after the U.S. Supreme Court severely restricted the federal government's power to oversee wetlands, the Republican-dominated North Carolina legislature handed state agencies an order: Don't give the ecologically crucial waters any more protection than newly weakened federal rules provide.

It might seem ironic that Republicans who often complain about the federal government would tether their state's policy to one crafted in Washington, D.C. But this time, doing so meant slashing regulation and aligning themselves with builders, agriculture and other industries that have long sought weaker wetland safeguards.

For decades, federal court battles have pitted environmentalists who want the Clean Water Act to protect more wetlands against industries seeking regulatory rollbacks. The high court's May 25 decision favoring Idaho landowners Michael and Chantell Sackett curtailed powers of the Environmental Protection Agency and Army Corps of Engineers to limit wetlands destruction.

It put states at the center of future fights over wetlands that defend against floods, purify water and support wildlife, analysts say.

“The federal rollbacks are creating a vacuum. The states are going to have to step in and fill the void," said Kim Delfino, president of an environmental consulting company and the former California director of Defenders of Wildlife.

The 5-4 ruling expanded the ability of farmers, homebuilders and other developers to dig up or fill wetlands, finding the federal government had long overreached in limiting such activities. It’s the latest decision by a conservative-dominated court to limit environment laws and agency powers. With little appetite in a divided Congress to pass environmental laws, the outcome is likely to endure.

On Tuesday, the EPA and the Corps, which make and enforce federal wetlands rules, updated them to comply with the court's decision involving the Sacketts, who disputed the need for an EPA permit to build a house near a lake.

The rule requires wetlands to be more clearly connected to other waters like oceans and rivers to be regulated — a major departure from decades-old federal policy.

Experts say it will take time to determine how the changes will play out in different regions.

“States will either enforce or adopt new protections. Others will roll back existing protections,” said Geoff Gisler, program director for the Southern Environmental Law Center. “The focus will shift from the federal to the state government.”

North Carolina offers an early example.

The state, with its flat, sandy coastal plain rich in wetlands, began regulating ones isolated from larger surface waterways about 20 years ago after a previous court decision limited federal authority.

Urged by development interests in the steadily growing region, legislators voted in June to disallow state protection standards exceeding those of the EPA and Army Corps, overriding Democratic Gov. Roy Cooper’s veto.

The move stripped protections from more than half the wetlands in the flood-prone state hammered by hurricanes in the past decade, said Grady McCallie, policy director for the North Carolina Conservation Network.

“We are going to see a lot of devastation,” said Gisler of the Southern Environmental Law Center. “People who bought new homes, moving to North Carolina to embrace the coastal lifestyle, at some point in the next few years are likely to see their homes flooded.”

Chris Millis, a lobbyist with the North Carolina Homebuilders Association, which pushed to link state and federal wetlands policies, said the move was underway before the Supreme Court decision. He said it resulted from state officials making more wetlands subject to regulation in recent years, creating uncertainty for developers.

Even the presence of artificial farm ponds was reducing the number of houses in new subdivisions, Millis said. “It’s one thing to protect areas of land that do have ecological significance. It’s another to take man-made ditches and cattle ponds and claim them as state waters and wetlands.”

But more is at stake, said Curtis Richardson, director of the Duke University Wetland Center and a professor of resource ecology. Thousands of the state's wetlands — oval depressions known as Carolina bays, pocosin bogs with sandy peat soil and woodsy shrubs — are formed by rainfall or groundwater and have no connection to surface waters. And Richardson said the Supreme Court ruling — and now the new state requirement not to exceed federal standards — leaves them vulnerable.

“You cannot protect every wetland. Not every wetland is sacrosanct," he said. “What we want to do is preserve those with the most functional value on the landscape for biodiversity, water quality and other services.”

Roughly half of U.S. states rely on federal regulations to protect their wetlands, according to a May analysis by the Environmental Law Institute. That's where the Sackett ruling will have the greatest impact — unless state or local leaders set tougher rules than federal ones.

Many of those states have Republican-majority legislatures and are concentrated in the Great Plains and South. A group of Democrat-led states in the Northeast and along the Pacific Coast have crafted their own wetlands standards. The Sackett decision will have less effect there.

But the divide isn’t entirely along ideological lines. Florida, once a swing state but now solidly Republican, has separate protections for its extensive wetlands.

States, worried about shifting federal rules, have acted on their own before. Following years of debate, California strengthened its requirements after the Trump administration proposed rolling back federal rules in 2019.

The job wasn't easy, despite California's left-leaning politics and severely degraded wetlands, said Delfino, the environmental consultant. Some worried that tougher protections would hurt economic development and agriculture. But she said the successful effort means the Supreme Court decision probably won't affect the state much.

It could prompt regulatory cutbacks in the Southwest, where many wetlands are seasonal and have no direct link to a surface water, said Shawn Zovod, a San Francisco-based regulatory compliance attorney who represents developers.

The court ruling also will likely spark battles in ideologically divided states over whether to step up wetlands oversight as federal agencies back off, Zovod said.

Colorado officials, for example, quickly issued an interim policy that requires anyone damaging a wetland no longer protected under federal law to notify the state environmental agency. After Sackett, officials are using their enforcement authority to ensure waters that are no longer federally regulated aren't destroyed.

“Those are important parts of our economy and recreational opportunities" said Nicole Rowan, director of the water quality control division at the Colorado Department of Public Health and Environment.

A long-term fix, however, still requires action from the state legislature.

Michael Altman, manager of federal regulatory affairs at the trade group Associated Builders and Contractors, said the Sackett decision not only protects fewer wetlands but also makes it easier for developers to determine ones that can be disturbed only with a permit.

Figuring that out has often been a complicated process involving attorneys and consultants, he said, adding, “We’re hoping that in a post-Sackett environment, there’ll be clarity in permitting and more efficiency for these important projects.”

The court ruling reflects a trend toward relying on state authority and programs, said Ben Grumbles, executive director of the nonpartisan Environmental Council of the States.

“The Supreme Court has clearly stated that federal coverage of wetlands under the Clean Water Act is more limited than it’s been over the last 50 years,” he said.