State law keeps Wisconsin’s wetlands protected despite U.S. Supreme Court decision

A U.S. Supreme Court decision has removed an estimated 50% of the country’s wetlands from protection under the federal Clean Water Act, yet more than a century of state laws and court precedent will leave most of Wisconsin’s wetlands protected. 

The court’s majority decision, written by conservative Justice Samuel Alito, in Sackett vs. Environmental Protection Agency (EPA) changed the agency’s definition of a “water of the United States” by only offering protection to wetlands that are “indistinguishable” from larger bodies of water by having a “continuous surface connection.” 

The case was fought over an Idaho family’s fight to fill a wetland on their property, with all nine justices siding with the family, but only five joining Alito in dramatically weakening the Clean Water Act. 

President Joe Biden criticized the decision, saying it “upends the legal framework that has protected America’s waters for decades.” 

Since the 1970s, the Clean Water Act’s protection of wetlands has been defined broadly, under the belief that wetlands and waterways, even if not directly connected to each other, are interconnected and play a vital role in preventing flooding and filtering pollution. 

“There is a good reason why Congress covered not only adjoining wetlands but also adjacent wetlands,” Justice Brett Kavanaugh wrote in a concurring opinion. “Because of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes, and other waters.” 

“The scientific evidence overwhelmingly demonstrates that wetlands separated from covered waters by those kinds of berms or barriers, for example, still play an important role in protecting neighboring and downstream waters, including by filtering pollutants, storing water, and providing flood control,” he continued. “In short, those adjacent wetlands may affect downstream water quality and flood control in many of the same ways that adjoining wetlands can.” 

The decision was immediately claimed as a victory for agricultural and business interests, with interest groups representing Wisconsin’s dairy industry celebrating the change. 

“We are thrilled the Supreme Court recognized that for too long unelected bureaucrats in Washington have run amok, punishing farmers and landowners under this draconian rule. The EPA should have to follow the letter of the law, as they require farmers to,” Kim Bremmer, executive director of Venture Dairy Cooperative, said in a statement.

Bremmer did not respond to a request for an interview, but clean water advocates say they’re grateful that farmers, businesses and landowners will still be required to follow Wisconsin’s wetland protection laws. 

“I think it places a lot of importance on the strength of state level wetland protection laws that exist and Wisconsin has the benefit of having some fairly strong wetland protection laws on the books that help to reduce the potential impacts of the Supreme Court’s decision,” says Sara Walling, the water and agriculture program director at Clean Wisconsin. And it just means it’s that much more important for us to protect those laws that do provide that oversight to state wetlands and protect against some of the things that the federal decision really is going to undermine.”

Last week, the DNR said that it will continue regulating non-federally protected wetlands as it has for decades, noting that the state has been a leader in wetland regulation through legislation passed in 1991 and 2001. 

“While the Sackett decision will likely remove federal jurisdiction and oversight from a large amount of Wisconsin’s wetlands, the DNR will continue to implement the State’s uniform wetland regulatory program for projects that propose to impact wetlands in order to preserve and protect these critically important resources,” Tom Nedland, DNR Waterway and Wetland Policy Section Manager said in a statement.

Michael Cain, a retired DNR attorney and co-chair of Wisconsin Green Fire’s public trust and wetlands working group, says Wisconsin’s broad view of wetland protections extends to its founding as a state and has been affirmed on a bipartisan basis frequently. 

“The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor,” Article IX of the Wisconsin constitution states. 

Cain says that sentiment was expanded upon by the Wisconsin Supreme Court through the 1960s and 70s in decisions that found the state had a responsibility to look at impacts to water cumulatively across watersheds, rather than in discrete circumstances, and that because wetlands play an important ecological role, landowners do not have an unlimited right to fill them in. 

Decades later, a 2001 U.S. Supreme Court decision removed “isolated” wetlands not associated with another body of water from protection under the Clean Water Act. In response to that loss of protection, the Wisconsin Legislature convened in a special session to unanimously pass a bill extending state protection to those wetlands, requiring landowners to obtain a permit before dredging or filling any wetlands not protected by federal law. 

“Any wetlands declared non-federal, due to that [court] decision or any subsequent decision, would still be covered under Wisconsin law,” Cain says of the 2001 legislation. “That statute is still in place. As far as this decision, the impact in Wisconsin is somewhat muted because of that statute. The state of Wisconsin will still regulate most of those wetlands.” 

“I think that there is a broader recognition in Wisconsin, in my experience, that we need to look at the science and hydrology that these waterways need to be protected,” he continues.

Yet even though state law will continue protecting many of Wisconsin’s wetlands, Cain says that the interconnectedness of water still poses threats. Wisconsin’s watersheds do not end at the state line, and the effects of the destruction of a wetland in another state can ripple into Wisconsin. 

“It’s good news for Wisconsin, the problem is that it removes protection from about 50% of the wetlands nationally,” he says. “That affects all states, it affects water quality, it affects potential flood flows from those areas where wetlands might be removed. It affects migratory waterfowl where there won’t be habitat for those species. I think it will have impacts in Wisconsin, but they are somewhat muted compared to the rest of the country.”