State law and regulations still give state the tools to protect wetlands and their critical functions
In late May, the U.S. Supreme Court issued a ruling in a case brought by landowners in Idaho in which the court dramatically changed a portion of the purview of the 1972 Clean Water Act.
The “Sackett Case” challenged the authority of the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers — which jointly administer the part of the Clean Water Act that regulates wetland dredging and filling — over the denial by the EPA of the Sacketts’ permission to fill in a wetland lot adjacent to a lake in Idaho.
The majority opinion redefined what is considered a water or wetland that is covered by the act. Under the new ruling, a wetland must have “a continuous surface connection to navigable waters” to be under the jurisdiction of the law.
Questionable definition
Aside from the legal arguments, many expert scientists and conservation interests have decried the court’s definition. While there are wetlands that are isolated and unconnected to navigable surface waters, it’s unwise to presume that if a wetland doesn’t have a surface water stream or lake connection that what happens to it doesn’t impact surface waters.
Lakes, ponds, streams and rivers are inextricably linked to underground water as it flows through sand and gravel and even bedrock. What happens in a wetland near a stream, even if the only connection is through groundwater, has a direct and significant impact on the quality and quantity of water in the stream. Drain or fill a wetland and it no longer can hold flood waters, store surface waters that slowly percolate into the ground, and provide inflows to keep streams clean, cold and flowing.
Allowing unregulated dredging and filling in wetlands, especially in river valleys, will inevitably damage the water quality of the river, in direct opposition to the goals of the Clean Water Act.
‘Nothing changes, right now’
For us in New Hampshire, the question arises: Will this change how we protect and regulate wetlands in our state?
Before the Clean Water Act, the NH Legislature passed a water pollution control law in 1969 (RSA 482-A) that resulted in the establishment of rules and regulations over the dredging and filling of wetlands. That authority now resides in the wetlands bureau of the NH Department of Environmental Services. The bureau recently sent out a communication that says the SCOTUS decision does not affect either the enforcement of our New Hampshire law or the state’s definition of wetlands.
Ted Diers, assistant director of the NHDES water division, said, “Nothing changes, right now. … The way to protect wetlands is to really protect them.”
That protection happens at the local level. Towns and cities can adopt wetlands buffers, setbacks and aquifer protection ordinances. Wetlands can be permanently conserved with conservation easements and public ownership.
That said, we don’t know what changes in federal regulations might be forthcoming from the EPA or the Corps of Engineers, as some projects in New Hampshire need both state and federal permits.
Diers reminded us that the state wetlands law comes into play “at the end of the pipe.” It regulates how and where wetlands are impacted when a development is proposed. Our wetlands law does not say “no development” but rather NHDES can only determine how the impacts are dealt with.
Paul Doscher of Weare is a retired conservation professional and former college professor who taught environmental policy and regulation. This story was originally produced by the New Hampshire Bulletin, an independent local newsroom that allows NH Business Review and other outlets to republish its reporting.
