A new era dawns for America’s disappearing wetlands as feds retreat from oversight

CHESTERFIELD, MO. — On a sunny spring day on a farm outside St. Louis, U.S. Environmental Protection Agency Administrator Lee Zeldin celebrated a new era for America’s wetlands.

Flanked by farm equipment and a large American flag, Zeldin said federal rules about wetlands, long a source of frustration for people who want to drain them to grow crops or build homes, were going to relax.

“The federal government doesn’t need to be regulating every puddle on every property everywhere in America,” he said to a group of local farmers, in a state that has already lost nearly 90% of its natural wetlands.

Zeldin said the Trump administration will once and for all solve the hotly debated question of which wetlands are federally protected — determined by the tricky term “Waters of the United States” — so that farmers won’t be punished for draining them.

That solution, Zeldin said, will come from a 2023 U.S. Supreme Court ruling that declared only wetlands connected to a “water of the U.S.” will be protected. That ruling, Sackett v. EPA, could remove safeguards from more than half of the nation’s remaining wetlands, which slow flooding, improve water quality and serve as important wildlife habitat.

“There is nothing to debate anymore … we’re going to follow the Supreme Court,” Zeldin said. “It’s going to be simple.”

But wetland protections have never been simple.

Zeldin’s proposed definition instructs the federal government to greatly reduce how many wetlands it protects, which conservationists have warned will further abuse a misunderstood ecosystem that has already seen widespread destruction.

The battle to save what’s left will fall to the states, which don’t protect wetlands equally.

The Mississippi River, of course, doesn’t heed any state rules on its long journey from Minnesota to the Gulf, and its millions of acres of wetlands control flooding and catch pollutants all along the way. An uncertain future for those wetlands means an uncertain future for the river, and the people, animals and ecosystems that rely on it.

Wetlands are places where land and water meet, and the Mississippi River Basin, which covers 40% of the contiguous U.S., hosts some 65 million acres of them.

What they look like varies immensely. The prairie potholes of the upper Great Plains formed from retreating glaciers. Peatlands, most common in Minnesota, are characterized by a layer of dead plant material called peat. The swamps of the Gulf South are home to water-loving trees, like cypress and tupelo. And along the coast, freshwater from the river’s mouth and saltwater from the ocean mix in tidal marshes.

During the river’s huge, long-lasting flood in 2019, Nahant Marsh, a protected wetland in Davenport, Iowa, held about a trillion gallons of water from the Mississippi that would otherwise have flooded downstream communities, according to Brian Ritter, executive director of the marsh’s education center.

Despite their benefits, wetlands are in peril. Intentional destruction began in the country’s colonial days, when “drain the swamp” was a literal, not political, strategy to clear space for farmland and cities. They were also vilified, thought to harbor diseases, dangerous animals and even monsters and ghosts.

The states that border the Mississippi River have lost at least half of the wetlands they once had, and in some states, like Illinois, Iowa and Missouri, nearly all are gone. In 2019, the latest year for which data is available, only about 116 million acres of wetlands remained in the contiguous U.S., roughly half of the pre-colonial landscape.

In the last 50 years, societal views of wetlands changed as people learned more about their value. They also became a bipartisan issue. The 1972 Clean Water Act gave them federal protections; the 1985 Swampbuster provision in the farm bill penalized farmers who grew crops on converted wetlands; and former President George H.W. Bush declared “no net loss” of wetlands a national goal in the late 1980s.

But they are still disappearing. The Mississippi River Basin lost 132,000 acres of wetlands between 2009 and 2019, according to data from the U.S. Fish and Wildlife Service. That’s the equivalent of about 100,000 football fields.

“When people heard about wetlands, it was always, ‘There’s a wetland in between where I am now and what I need to do. And the … government won’t let me fix that,‘” said Tracy Hames, executive director of the Wisconsin Wetlands Association.

Before Sackett, the Supreme Court tried to lay down the law in Rapanos v. United States in 2006, when a developer in Michigan wanted to fill in wetlands on his property to build a shopping center. A majority of the justices agreed that the government had overstepped, but they offered two different interpretations of which wetlands get federal protections. One was more restrictive, saying only wetlands that touch a protected body of water could be regulated, and one was broader, saying any wetlands that play a key role in improving downstream water quality could be regulated.

In the years that followed, presidential administrations have flip-flopped between the broader and more restrictive approach to governing wetlands, continually redefining “Waters of the U.S.”

Former President Joe Biden’s administration issued a broader “Waters of the U.S.” rule. But 26 states sued to block his rule from taking effect. That means that while those legal battles play out, the country is using two different “Waters of the U.S.” rules to determine which wetlands are protected — Biden’s amended rule, and an older version in the states that sued.

“Waters of the U.S.” has been a “pain in the side” for farmers and ranchers, Zippy Duvall, president of the American Farm Bureau Federation, said in Washington on March 12 after Zeldin announced his intent to revise the rule.

And homebuilders say that to fix the nation’s housing shortage, which is estimated to be at least 1.5 million housing units, developers will need wetlands.

They’ve tried to avoid them because of the difficult permitting process over the years, said Tom Ward, vice president of legal advocacy for the National Association of Home Builders.

“To get these 1.5 million units, we’re going to have to go back to some of those more difficult pieces of property,” Ward said.

Speaking with reporters in Chesterfield, Mo., Zeldin said he’d end the ambiguity and back-and-forth with one word.

“Sackett,” he said. “S-A-C-K-E-T-T.”

Importantly, that guidance isn’t legally binding. Until the EPA issues its new rule, wetlands will still have Biden-era protections, meaning half of the country will be under one rule and half will be under another. And the rule-making process contains lengthy steps that can take years — the Trump administration issued their first “Waters of the U.S.” rule in 2020 — although Zeldin has promised this one won’t take as long.

That means the actual impacts of Sackett are yet to be understood, although some have attempted to predict them. Following the ruling, the EPA under Biden estimated that up to 63% of the nation’s remaining wetland acres could lose federal protections.

Another way to examine the impact is by looking at the determinations the Army Corps makes when someone wants to drain or fill a wetland. After the Sackett decision, about 18% fewer of those determinations found the wetland was federally protected, according to Adam Gold, coasts and watersheds science manager for the advocacy group Environmental Defense Fund.

Although the tool Gold created to track the change in these determinations has limitations, in part because of a small post-Sackett sample size, he said it gives a “sneak peek” at how federal protections for wetlands are waning.

Even under a new rule that the Trump administration asserts will be more straightforward, wetlands will not have the same protections across the country, because different states have different rules. Along the Mississippi River, Minnesota, Wisconsin, Tennessee and Mississippi have wetland protections that go beyond the arm of the Clean Water Act, an Ag & Water Desk analysis found. But Iowa, Illinois, Missouri, Kentucky and Arkansas do not have more protective wetland laws on the books. Louisiana extends broader state protections to its coastal wetlands, but not inland ones.

Even the state laws are moving targets. Illinois is aiming to beef up its wetland protections, for example, while in Tennessee, lawmakers want to scale theirs back.

Still, Zeldin intends to close the case on “Waters of the U.S.,” stepping back from decades of broad federal protections for wetlands and giving farmers and developers the certainty they’ve long asked for, with Sackett as his guide.

But given the history of wetland regulation, certainty could still be an elusive target.

After all, the Biden administration defended its amended “Waters of the U.S.” rule as being consistent with the Sackett ruling, too, said Abby Husselbee, a staff attorney at Harvard Law School’s Environmental and Energy Law Program.

“To the extent that this EPA would proclaim to be the final arbiter of how Sackett applies to the definition of [Waters of the U.S.] — we see already that there are other interpretations,” Husselbee said. “I don’t necessarily know that those would go away forever.”