A U.S. Supreme Court ruling on Thursday may leave certain types of wetlands and streams that play important roles in protecting coastal communities and the Chesapeake Bay more vulnerable to development and destruction, advocates say.
The ruling limits the federal government’s ability to regulate some wetlands and essentially narrows the reach of the Clean Water Act, which the court ruled only extends to wetlands with a “continuous surface connection” to certain bodies of water.
It leaves vulnerable important types of wetlands called Delmarva bays, which cover the Maryland-Delaware border, and pocosins — wetland bogs found from Virginia to Florida — that are no longer protected by federal regulations, according to the Chesapeake Bay Foundation, a nonprofit dedicated to conserving the watershed.
Streams that only flow at certain times of the year but not others also may not be protected under the new ruling, advocates say.
“The way we see it is that it will dramatically decrease the waterways that are protected under the Clean Water Act and kind of give landowners and developers and polluters permission to just bulldoze and fill in wetlands and streams,” said Robin Broder, acting executive director of Waterkeepers Chesapeake, a coalition of programs aimed at making the bay’s waters swimmable and fishable.
Wetlands and streams are both very important in protecting the Chesapeake Bay, advocates said Thursday, and to lose them to development could be harmful.
For one, wetlands act as a kind of “buffer” between land and bodies of water, said Broder. When a big storm rolls in, they absorb some of the water to prevent massive flooding, she said.
“If the wetlands have been destroyed or developed and are hardened by concrete, they don’t provide the role that they’ve always played, of taking the brunt of the storm before it hits land,” Broder said.
They also help filter pollutants or sediment out of runoff before it enters rivers or other bodies of water, she said.
There is already too much sediment in the Chesapeake Bay, and without wetlands to filter some of it out, the problem would only get worse, said Meg Parish, senior water quality attorney at the Environmental Integrity Project, a Washington D.C.-based watchdog organization. Too much sediment can make the Bay a more difficult place for fish and other aquatic life to live and could harm the Bay’s ecosystem and affect industries like tourism and commercial fishing, Parish said.
Developed wetlands could also lead to more flooding in many coastal communities, and could particularly affect those that are low-income and located in rural areas, Broder said.
Maryland’s laws go beyond federal regulations and may still protect wetlands that lose federal protections, said Evan Isaacson, senior attorney at the Chesapeake Legal Alliance.
State law protects both tidal and nontidal wetlands. Tidal wetlands change with the tide — flooding with water and draining as the tide moves — while nontidal wetlands are areas that are constantly saturated with water, such as swamps, marshes and bogs.
A state permit is required to build in a nontidal wetland or within an area of 25 to 100 feet around it, and are approved only if alternatives don’t exist and the project minimizes any impacts to the wetland. A permit or license is also required to fill, dredge or alter a tidal wetland, or to build in it.
Pennsylvania and Virginia also have state laws that could offer coverage, according to the Chesapeake Bay Foundation.
But, without federal protections, there may be more loopholes or “opportunities for mischief” to get permits to develop wetlands, according to Jon Mueller, Chesapeake Bay Foundation’s vice president for litigation.
The question of whether an area qualifies as a wetland is now going to fall more heavily on states, he said, and they may not have enough funding or inspectors to be able to do a detailed evaluation.
Inspectors might do their investigation through a computer, rather than going to check out an area in person, which “sometimes is what is necessary to make a good decision about whether a wet area is a wetland and should be protected, or is not, and can be filled without harm to the environment or downstream water quality,” Mueller said.
And even if Maryland’s wetlands are protected, the Chesapeake Bay could still be in danger. Both Delaware and West Virginia follow the federal definition of wetlands “in lieu of establishing their own state protections,” according to the Chesapeake Bay Foundation, meaning certain streams or wetlands in those states that affect the bay could go unprotected.
“One of the things about the Chesapeake Bay is it’s not just one state, you’ve got West Virginia watersheds going into the Chesapeake Bay, you’ve got Pennsylvania watersheds going into the Chesapeake Bay,” said Parish. “So even if Maryland does a great job in protecting its headwater streams and its wetlands, you need that federal protection to make sure that every state that’s going into the Chesapeake, that all of those wetlands are protected.”
In a statement, Maryland Department of the Environment Secretary Serena McIlwain said that the state respects the Supreme Court’s ruling, “but we also respect the waters of the United States, and we’re going to continue to protect the wetlands of Maryland and communities they serve.”
The U.S. Supreme Court ruled in favor of an Idaho couple that wanted to build a house near Priest Lake. Federal officials told the couple they had to get a permit to fill in part of the property that had been identified as wetlands.
On Thursday, President Joe Biden called the 5-4 decision “disappointing,” and said it would “take our country backwards.”
Chesapeake Bay advocates offered a similar sentiment. In a statement, Mueller said that “this dangerous decision risks damaging decades-long efforts by multiple states, federal agencies, and local jurisdictions to restore the Bay and its waterways.”
In its own statement, the Chesapeake Legal Alliance said the ruling will lead to more pollution in the Chesapeake Bay just as several states and the District of Columbia are working to meet pollution reduction targets by 2025.
“We all lost important environmental rights today to protect some of our cherished creeks, streams, and wetlands from pollution and habitat destruction,” the organization said.
The Associated Press contributed to this story.