This story is a product of the Mississippi River Basin Ag & Water Desk, an editorially independent reporting network based at the University of Missouri School of Journalism in partnership with Report For America and funded by the Walton Family Foundation. Wisconsin Watch is a member of the network. Sign up for our newsletter to get our news straight to your inbox.
The remnants of the old levee are still visible at The Nature Conservancy’s Emiquon Preserve in central Illinois, although these days it no longer holds back the Illinois River.
What used to be corn and soybean fields 17 years ago is nearly 7,000 acres of lush restored wetlands.
Doug Blodgett grew up just across the river from what would eventually become the preserve. He remembers hearing old-timers reminiscing about the days when there’d be so many geese migrating through the floodplains that they’d blot out the sun.
He wasn’t quite sure he believed those stories, until after the restoration began in 2007.
He said he was driving, and looked up and saw, “about 100,000 snow geese out here, and they all got up at once,” he said. “The sun just disappeared, you could not see a ray of sunlight.”
In addition to providing safe resting grounds for wildlife, wetlands serve as natural water filters, and can also reduce flooding during major rain events by giving water a place to collect and soak in.
Blodgett, a senior advisor at The Nature Conservancy, is easing into semi-retirement this year. Seeing thousands of birds, waterfowl and native plants return to the Illinois River Valley in the last 15 years has given him hope that there are more wetlands out there waiting to be restored.
But an ongoing U.S. Supreme Court case, Sackett v. EPA, could roll back the federal government’s authority to regulate wetlands and potentially trim their protections all together.
That worries conservationists such as Blodgett, who said Illinois has lost 90% of the state’s original wetlands, while many other Midwestern state’s have lost over 50%, according to the U.S. Fish and Wildlife Service.
“We don’t have enough now, and we can’t afford to lose more,” Blodgett said. “So it is of great concern how this comes down and ultimately, the impact that it has on existing wetlands.”
What this means for Wisconsin
Wisconsin has lost about half of its original wetlands, with about 5 million acres remaining. When the U.S. Supreme Court largely limited federal protections for geographically isolated wetlands, Wisconsin was the first state to bridge the gap through bipartisan legislation in 2001.
Under that law, property owners must obtain a permit before developing on wetlands — a process requiring them to prove the necessity of the development and that they’ve exhausted options for avoiding or minimizing impact on wetlands.
The Wisconsin law should remain intact, regardless of the outcome of Sackett v. EPA. But if the justices scale back federal jurisdiction over wetlands, protections near shared bodies of water — like the Mississippi River at Great Lakes — would depend on the strength of regulations in neighboring states.
Challenge to the Clean Water Act
The U.S. Supreme Court heard oral arguments in October for the Sackett v. EPA case, a 14-year-long legal battle launched from the backyard of an Idaho couple, the Sacketts, who were seeking to fill their lake adjacent property with gravel. The EPA stopped them.
The case, which has been to the high court twice now, is aimed at challenging the federal protections the Clean Water Act provides to some waters and wetlands that fall under the definition of “Waters of the United States,” commonly called WOTUS.
A recent study from the Tulane Institute on Water Resources Law and Policy has found that the ruling could have wide-ranging impacts and leave wetlands management up to states.
Mark Davis served as advisor on the report and has worked on wetland issues for 30 years. He said what’s at stake with the Sackett case is the federal jurisdiction of the government over the nation’s most valuable natural resource, water.
“It will mean that there are many important waters and wetlands that are no longer protected by law at all,” he said.
Larger wetlands, like Emiquon, will likely remain untouched, according to Davis. But smaller, more isolated wetlands and streams may lose protections.
The Clean Water Act, passed in 1972, left wetlands protection very much up for interpretation. The law mentioned only “navigable” waters be included under WOTUS, which came under federal protection. The U.S. Army Corps of Engineers later added “adjacent” wetlands under federal projections, which a 1985 Supreme Court decision upheld.
Over the decades there were several challenges around just what could be considered “adjacent” wetlands. Federal regulatory powers over wetlands remained relatively unchanged until 2006, when Justice Anthony Kennedy wrote a case opinion stating a wetland should be under WOTUS protection if it shares a “significant nexus” with navigable water, meaning the flow of water from the wetland will eventually go downstream.
Scott Strand, a senior attorney with the Environmental Law and Policy Center, said that under the Obama administration, the EPA and Army Corps more substantially outlined the “significant nexus” standard. Strand said the rule didn’t last long.
“That became controversial and it eventually gave way,” he said.
Courts across the country filed injunctions against the Obama era rule, and then the Trump Administration repealed it outright in 2019. The following year, the Biden administration yet again asked the EPA to revisit the rule, and in late December, the EPA finally released its latest version.
But the Sackett case could send the agency back to the drawing board, according to Paul Botts, the president and executive director of the Wetlands Initiative.
“The issue in that case is to what degree the current Clean Water Act gives the U.S. EPA authority to regulate isolated wetlands at all,” he said. “If a majority of the Court decides that it does not, then no U.S. EPA rule on the topic is valid.”
Should the court rule in favor of the Sacketts and limit the federal jurisdiction of agencies like the EPA and the Army Corps of Engineers to regulate the nation’s wetlands, it would be left up to individual states. That could result in a patchwork of protections varying state-by-state, according to Maisah Khan, policy director with Mississippi River Network.
“Relying on different states to make up different rules ignores how what happens in one part of the Mississippi River has impacts on another,” Khan said.
The Mississippi River basin is an interdependent system which covers over 1.3 million square miles and 31 states. Environmental laws in each of those states impact the others.
For example, fewer wetlands to soak up pollutants in the upper basin means more of those pollutants will instead end up rushing downriver, adding to the dead zone in the Gulf of Mexico.
The Tulane study found that 24 states rely on the Clean Water Act to regulate wetlands in their states. That means that they would have limited wetland regulations if the Supreme Court narrows the scope of the Clean Water Act.
The Supreme Court is expected to return a decision on the Sackett case sometime early this year.
For now, the future for many of the country’s wetlands, especially those seemingly isolated from rivers or streams, remains uncertain.
Yet at Emiquon, life will go on.
Scientists have documented about 93% of Illinois’ threatened and endangered bird species associated with wetlands at the preserve. Blodgett thinks it could be more.
“I’m pretty sure the other 6 or 7% are out there,” he said while looking out across the wetlands. “We just haven’t had the right person at the right place at the right time to see them.”
This story is a collaboration between the Mississippi River Basin Ag & Water Desk and Harvest Public Media. Madeline Heim, with the Milwaukee Journal Sentinel, and Wisconsin Watch’s Jim Malewitz contributed reporting.
The Mississippi River Basin Ag & Water Desk is an editorially independent reporting network based at the University of Missouri School of Journalism. Harvest Public Media is a collaboration of public media newsrooms in the Midwest based at KCUR in Kansas City.