by Sindupa De Silva, Andrew Scott and Joel Mota
When you think about a wetland, grand places like Florida’s Everglades, Louisiana’s bayous or Canaan Valley and Cranberry Glades in West Virginia may come to mind. But places closer to home, like the edges of your farm pond, the wet spot in your neighbor’s field or the slough along your favorite creek are also wetlands.
Wetlands are nature’s kidneys. They help clean polluted waters, reduce flooding, prevent erosion and help maintain our freshwater resources. Wetlands do this by intercepting water from rainfall and flood events, removing and storing pollutants and sediments, then releasing cleaner water into our lakes, rivers, oceans and groundwater resources.
Wetlands also serve as homes for numerous animal and plant species (hosting over 40% of West Virginia’s biodiversity). Despite these benefits, wetlands are still not comprehensively protected.
Section 404 of the 1972 Clean Water Act (CWA) is the only federal legislation that protects wetlands from the inputs of unregulated discharge, dredge or fill materials. (Permits for regulated discharge can be obtained through the U.S. Army Corps of Engineers.) Currently, CWA protections only apply to wetlands greater than one-tenth of an acre that are connected to “Waters of the United States” (WOTUS).
The definition of WOTUS has been debated and refined under several presidential administrations since 2001. This makes it challenging to explain WOTUS at any given time.
Fast forward to May 25, 2023: the Supreme Court of the United States ruled 5-4 in favor of Michael and Chantell Sackett in Sackett v. Environmental Protection Agency. This ruling further narrows wetlands included in WOTUS to those that are “first, relatively permanent bodies of water connected to traditional interstate navigable waters, and, second, wetlands with such a close physical connection to those waters that they are [were] as a practical matter indistinguishable from WOTUS.”
Simply put, a wetland must have a relatively continuous surface connection with WOTUS, which ignores a vital consideration: Water also moves below the earth’s surface.
According to Sam Sankar, senior vice president of programs at EarthJustice, “roughly more than 90 million acres of formerly protected wetlands now face threats from pollution and development.”
The SCOTUS decision also shifts the responsibilities of wetland protection to state legislatures, creating the possibility of inconsistent wetland protections throughout the U.S. and increasing the vulnerability of our nation’s freshwater resources.
West Virginia implements federal wetland protections from the CWA, the Food Security Act, the North American Wetland Conservation Act and the Safe Drinking Water Act. It also provides independent wetland protections through the West Virginia Water Pollution Control Act, which requires permitting if individuals or organizations have the potential to impact surface or groundwater resources. Notably, water bodies designated as “farm ponds” are excluded.
Outside of these laws, the SCOTUS ruling to narrow CWA wetland protections directly hinders protections afforded to wetlands throughout the Mountain State, not only threatening the water quality of West Virginia’s streams, rivers, lakes and groundwater resources, but also the waters of our downstream neighbors. The ruling also accelerates the quiet loss of wetlands and all their dependent animal and plant species — in other words, what makes West Virginia wild and wonderful.
As stated previously, wetlands are found all over — ranging across type, location and size. They work as a network connected by water — both above ground and below — providing invaluable benefits to both humans and wildlife.
As beneficiaries of wetlands and as taxpayers, we must advocate to protect our state’s wetlands and those of our nation more than ever before. Contact your local DNR or DEP office to learn more about wetlands around you, and call your representatives to tell them why we must protect these ecosystems.
By protecting our nation’s wetlands, we can help protect the availability of clean freshwater resources for generations to come.
