Wetlands are a cornerstone of Gov. Mike DeWine’s H2Ohio program, so much so that some leading wetlands advocates believe that Ohio has become the envy of others for the millions the state is spending.
But the situation has become much more complicated after a wetlands ruling issued by a divided U.S. Supreme Court last month.
Environmentalists see it as a major setback for western Lake Erie recovery efforts, while advocates of private property rights laud it for removing limitations on land that is otherwise difficult to develop commercially or use for other purposes, such as agriculture.
By a 5-4 vote, the nation’s highest court ruled that “isolated wetlands’ — those cut off from navigable waters that are under federal control — can now be developed or used in other ways without property owners first obtaining federal wetlands permits.
The case, Sackett vs. EPA, is the latest that seeks to clarify where federal authority begins and ends with wetlands.
It was brought by an Idaho couple that claimed it has a right to develop a wetland it owns because it is isolated from those connected to navigable waters.
The case has inadvertently created an unusual situation in Ohio:
On one hand, Governor DeWine and Ohio Department of Natural Resources Director Mary Mertz have promoted wetlands of all kinds across Ohio as policy tools to improve water quality, starting with the algae-riddled western Lake Erie watershed.
On the other, the U.S. Supreme Court now says wetlands without a clear hydrological connection to coastal wetlands and others managed by the federal government are no longer subject to the same rules.
The dichotomy may not be as stark as it seems, according to one wetlands advocate, Vincent E. Messerly, an engineer who serves as president of the Lancaster, Ohio-based Stream + Wetlands Foundation.
He noted Ohio is one of the few Midwestern states which has an isolated wetlands permitting program — and that the Supreme Court ruling allows states to develop their own rules for such things. Unlike many other states, Ohio hasn’t yielded to minimum rules established by the federal government for isolated wetlands, he said.
The Ohio Environmental Protection Agency program began in 2001 in response to a different U.S. Supreme Court ruling that year, one which pitted the Solid Waste Agency of Northern Cook County against the U.S. Army Corps of Engineers.
In that case, which also passed by a divided 5-4 majority of justices, the Corps and the U.S. EPA were forbidden from using migratory bird rules as their basis for permitting authority over isolated waters.
“I tell people we’re 22 years ahead of everyone else,” Mr. Messerly said, adding that he’s generally pleased by the way in which the Ohio EPA has overseen isolated wetlands. “They have done a really good job in my opinion.”
Zurijanne Carter, Metroparks Toledo deputy chief of natural resources, said Ohio is “situated to continue protecting our wetlands under different levels of regulatory review with permitting required for the different categories of wetlands.”
Ohio’s soft spot, though, lies in what ultimately happens with waterways known as ephemeral streams — that is, waterways that can connect those two types of wetlands but are often seasonal in nature, depending on how much rain and snow have fallen.
Last year, Mr. DeWine signed into law House Bill 175, which the Republican-controlled Ohio General Assembly passed at the request of the Ohio Chamber of Commerce and others who argued that economic growth cannot be optimized unless state environmental regulations “are no more stringent than their federal counterparts.”
The Ohio Home Builders also testified in favor of HB 175, arguing that it “provides some regulatory certainty aligned with the federal WOTUS at a time when it is sorely needed to meet the demands of the real estate market in Ohio.”
WOTUS is an abbreviation for the Waters of the United States rule that was the crux of the lawsuit brought before the U.S. Supreme Court recently by the Sacketts.
Those who testified in opposition to HB 175 included former Ohio First Lady Hope Taft and the Toledo Metropolitan Area Council of Governments. The latter said that 2022 law for the state’s ephemeral streams was an attack on Lake Erie, jobs, recreation and “the business[es] that depend on a healthy Lake Erie to thrive.”
While the Ohio Chamber of Commerce did not officially weigh in on the Sackett vs. EPA case, the chamber’s general counsel, Tony Long, told The Blade on Friday it “appears to restore a balance between federal oversight and state-level water conservation efforts.”
“Land projects in Ohio with an impact on isolated wetlands will still be covered by Ohio law and in many cases the appropriate Army Corps of Engineers district will still have a review function when applications are filed,” he said. “Overall, this should provide clarity for both the landowners, developers, and regulators charged with review of projects and enforcement of state law.”
The Ohio Farm Bureau Federation was happy with the ruling, calling it “a momentous win for landowners, as it will significantly narrow the Clean Water Act's reach to wetlands.”
“Growing crops and raising animals are water-dependent enterprises, so the definition of Waters of the United States is critically important to Ohio farmers as they properly care for their land,” the statement, issued by spokesman Ty Higgins, reads. “This ruling draws clear lines of jurisdiction that farmers can understand without hiring consultants and lawyers which, unfortunately, is often necessary with the current Clean Water Act. The limits of federal authority were tested in this case and the result confirms that a rewrite of the WOTUS rule is much needed.”
Those upset about the ruling include internationally renowned wetlands expert Bill Mitsch, emeritus professor from Ohio State University and, more recently, Florida Gulf Coast University. He has traveled to China and other parts of the world studying wetlands, has done extensive work with northwest Ohio’s Great Black Swamp legacy, and is the founder and former editor-in-chief of an ecosystem scientific journal called Ecological Engineering.
He called the ruling “the most dangerous sounding redefinition of wetlands I’ve seen in 40 years.”
“This is just wrong,” Mr. Mitsch said. “I think this is the worst definition of wetlands I’ve ever heard.”
W. Robert Midden, an emeritus Bowling Green State University professor and wetlands researcher, said the ruling means northwest Ohio is at risk of losing a lot of important acreage that captures algae-forming nutrients and climate-altering greenhouse gases while helping to reduce floods.
“This can be very detrimental to our environment and our economy, but also to public health because of the decline in pollutant reduction and increases in HABs [harmful algal blooms] which produce toxins that can be harmful to human and animal health,” Mr. Midden said.
Attorney Fritz Byers, who represented Lucas County as co-plaintiff in a successful lawsuit that now requires state and federal environmental regulators to come up with a long-term plan for managing Lake Erie algal blooms, called the Supreme Court’s latest decision “catastrophic” and “profoundly anti-democratic.”
He said it reverses decades of settled law about the breadth of federal power in major environmental issues, just like the high court did last year with the Clean Air Act in the West Virginia vs. EPA case.
Congress had the ability to rewrite both the Clean Water Act and the Clean Air Act if it believed the federal government had overstepped its authority, he said.
“Instead, the Supreme Court, adopting a radical and novel theory about democratic governance, asserted its power as the ultimate authority on environmental policy,” Mr. Byers said. “The implications of these decisions and the so-called theory that undergirds them go far beyond environmental law. If left unchecked, they will, over time, fundamentally destroy the government’s ability to function in furtherance of public welfare, particularly in our current condition of ideological zealotry and legislative paralysis.”
Ken Kilbert, University of Toledo College of Law professor emeritus, said the ruling “significantly shrinks the universe of wetlands protected by the federal Clean Water Act.”
“The decision represents a big pro-development, anti-environment change in the law,” he said. “As a result of the narrowed jurisdictional scope of the Clean Water Act, more wetlands likely will be destroyed.”
Ohio is all-too-familiar with wetland losses.
The state ranks second nationally to California in historic wetland losses, with more than 90 percent destroyed. Most were ruined decades ago, when the Great Black Swamp was tiled and drained, starting in the mid-1800s, for northwest Ohio farming.
Citing U.S. EPA wetlands inventory data, a national environmental law advocacy group, Earthjustice, claims that nearly half of the nation’s wetlands are now at risk of being destroyed. That includes 538,000 acres of isolated wetlands in Ohio, the group said.
Janette Brimmer, senior Earthjustice attorney, said she’s concerned about the voluntary nature of Governor DeWine’s H2Ohio program. Even larger than its investment in wetlands is its incentive-based programs aimed at getting the agricultural industry to adopt best management practices on a voluntary basis.
“The states failed miserably at protecting water [through voluntary incentives], which is why the Clean Water Act was passed in the first place,” she said of the 1972 law. “All of the states could always be more protective. But there was always a basement they could not fall.”
Wetlands capture nutrients. But one of their more underrated benefits is their ability to reduce flooding, Ms. Brimmer said.
That’s an important consideration, given how the Midwest is second only to New England in storm intensity and frequency since the 1960s.
“Climate change shows every indication of more big storms coming. So flood control is of critical importance,” Ms. Brimmer said. “Wetlands are like sponges. Their ability to absorb is invaluable.”
Ohio Lake Erie Commission Executive Director Joy Mulinex said the governor’s office and state agencies that oversee wetlands remain committed to improving Ohio water quality statewide, largely through Mr. DeWine’s H2Ohio program.
“We expect the U.S. Army Corps of Engineers and U.S. EPA to develop guidance following the Supreme Court’s decision, but the progress we are making to improve water quality in northwest Ohio through H2Ohio will continue,” Ms. Mulinex said.
Mark Shieldcastle, a retired Ohio DNR biologist serving as Black Swamp Bird Observatory research director, said it appears the protection of any upland wetland is affected.
“That could be devastating in the region,” Mr. Shieldcastle said. “A lot remains to be seen and none of it is anything our natural resources needed right now.”
First Published June 3, 2023, 12:30 p.m.
