Sackett v. EPA: Supreme Court Takes a Whack at Wetlands, but Michigan Has a Shield
A U.S. Supreme Court ruling issued on May 25 will remove federal protection for millions of acres of wetlands across the country, but will have much less impact in Michigan thanks to a state law that goes beyond federal limits.
The decision in the case, known as Sackett v. EPA, substitutes the views of five justices for 50 years of legal interpretation and a growing body of science supporting the hydrological interconnection between wetlands and rivers and streams, even when the link is not visible at the land surface. By offering its own judgment that wetlands must immediately adjoin rivers and streams, the ruling exposes many wetlands vital to the health of rivers and streams to filling. According to Earthjustice, which filed an amicus brief in this case, the court’s ruling is likely to result in the removal of protections from nearly 90 million acres (36.4 million hectares) of the nation’s sensitive wetlands ecosystems, which is equivalent to the size of the state of Montana.
The case is especially important because wetlands provide valuable services such as pollution filtration, floodwater storage, fish and wildlife habitat and carbon storage.
Fortunately, Michigan legislators and former Governor William Milliken recognized this when they enacted Michigan’s Wetland Protection Act in 1979. The law incorporates a broader definition of wetlands than the U.S. Clean Water Act. The Supreme Court ruling essentially limits federal protection to wetlands immediately adjoining rivers and streams. Michigan law recognizes the scientific reality that many wetlands critical to the health of rivers and streams are hydrologically connected below the land surface.
A spokesperson for the Michigan Department of Environment, Great Lakes and Energy (EGLE) says “regulation of those water bodies in state law remains consistent regardless of this (Supreme Court) decision.”
Over three decades ago, Michigan was the first state, and remains one of only three states, to have received federal authorization to administer the federal wetland permitting program.
According to EGLE, Michigan has lost approximately one-third of its original 10.7 million of acres of its pre-European-settlement wetlands, but the rate of loss has slowed dramatically since passage of Michigan’s 1979 law.