U.S. Supreme Court: To Gain Formal Protection, Wetlands Must Have "Significant Nexus" to Waterways

Mangrove A recent Supreme Court decision could make it harder for conservationists to safeguard wetland areas previously protected under the U.S. Clean Water Act. On June 19, the court issued a divided ruling in the case of “Rapanos vs. United States,” with four justices saying the Act’s protections apply only to water bodies that are “permanent, standing, or continuously flowing,” and four justices dissenting. Justice Anthony M. Kennedy issued a separate opinion that is now the controlling decision, stating that the U.S. Army Corps of Engineers can regulate only wetlands with a “significant nexus” to a major waterway. Accordingly, regulatory agencies will need to determine which wetlands are protected under the law on a case-by-case basis.

The new law puts an “onerous burden on the Army Corps of Engineers and other regulatory agencies,” according to water expert Sandra Postel, Director of the Global Water Policy Project, a Worldwatch Institute Senior Fellow, and contributor to an amicus brief in the case. But while the ruling is a setback for wetland protections, it could have been much worse, Postel says. She believes it is imperative for Congress to clarify the intent of the Clean Water Act to ensure the protection of U.S. wetlands.

A stated purpose of the Clean Water Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” According to the amicus brief submitted by Postel and nine other leading scientists, including Jared Diamond, Paul Ehrlich, and E.O. Wilson, the protection of tributaries and adjacent wetlands is essential to this purpose. The brief lists an abundance of ecological services that wetlands provide, including purification and filtration of water supplies, flood and drought mitigation, and groundwater recharge.

Wetlands preservation also fosters significant economic services, according to the brief. The combined agricultural, industrial, recreational, and habitat functions of a wetland often exceed the value of developing the property. Flood control alone was estimated to add a value of US $52,340 per acre to the Salt Creek Greenway in the state of Illinois. Biologically diverse wetlands also play an important role in interstate commerce, the brief notes, with both the fishing and hunting industry and the lucrative plant-based pharmaceutical sector heavily dependent on wetlands.

The protection of wetlands is not just an issue of U.S. concern. Worldwide, it is estimated that only about half of all wetlands that were present in 1900 remain, and their degradation and loss continues as land is converted for development and agricultural use. In total some 1,600 wetland sites, covering 145.8 million hectares, are designated as being “of international importance” under the 1971 Ramsar Convention on Wetlands, while many more sites have no formal protection at all. At the local level, citizens in the United States and elsewhere are developing wetlands protection programs to oversee land use and help keep protections in place.

Other Resources:

"Wetlands Disappearing," June 7, 2005

This story was produced by Eye on Earth, a joint project of the Worldwatch Institute and the blue moon fund. View the complete archive of Eye on Earth stories, or contact Staff Writer Alana Herro at aherro [AT] worldwatch [DOT] org with your questions, comments, and story ideas.