COLUMBUS – An internationally recognized wetlands expert at Ohio State University anticipates at least some repercussions from last week’s U.S. Supreme Court decision on wetlands regulation.
In the case, Rapanos v. U.S., developers in Michigan challenged the Army Corps of Engineers’ right to restrict development on land containing wetlands that were not specifically adjacent to a permanent body of water.
Four justices agreed with the Army Corps, and four others sided with the developers.
What’s it mean? “I don’t think anyone really knows what the decision means quite yet,” said Bill Mitsch, director of Ohio State’s Schiermeier Olentangy River Wetland Research Park. “It’s a middle-ground decision, but its effects will depend on how the Army Corps of Engineers responds. They’ll come out with a memorandum outlining how they interpret the decision and that will be more important than the actual Supreme Court decision itself.”
Justice William Kennedy’s lone – and deciding – opinion concurred with the latter group, but disagreed on a key point: that only permanent bodies of water should be protected on the federal level.
In referring to a 2001 Supreme Court decision, Kennedy said wetlands need only a “significant nexus” to a major waterway – affecting its “chemical, physical, and biological integrity” – to be protected by the federal government.
Lower courts. The cases involved in the decision will go back to lower courts to issue rulings based on whether the protected wetlands achieve the “significant nexus” test.
Mitsch, who is also a scientist with the Ohio Agricultural Research and Development Center, is concerned the decision will embolden others who wish to challenge the Clean Water Act and reduce wetlands protection, or that the Army Corps of Engineers will not be as eager to protect wetlands in the future.
But he is hopeful for a “best-case scenario that nothing will happen.”
Another Ohio State scientist is hopeful that Mitsch’s best-case scenario is exactly what will happen. Karen Mancl, a professor of food, agricultural and biological engineering and water quality specialist with Ohio State University Extension and the Ohio Agricultural Research and Development Center, has based her career on the goal of the 1972 Clean Water Act to eliminate the discharge of pollutants into the nation’s navigable waters.
No changes. Mancl doesn’t anticipate any changes in Ohio based on the recent ruling. She said after the 2001 Supreme Court decision, many states issued new regulations to protect isolated wetlands on a state-by-state basis rather than relying on federal regulations.
She said the recent ruling reiterates the importance for “states to step up and protect isolated wetlands like they do groundwater.”
However, Mitsch, a professor of natural resources, environmental science and ecological engineering with Ohio State’s School of Environment and Natural Resources, said he’d prefer a stronger federal presence.
“I think the nation needs federal wetlands protection,” he said.
But he understands the complexities involved.
In 1995, he contributed to a National Academy of Science report that defined wetlands.
Recurring issue. “Wetlands don’t have borders, but politicians and lawyers prefer clear delineations,” he said. “Ever since, there’s been an uneasy marriage between the science and the legal and political worlds and the issue keeps coming back.”
Mancl said the best definition she ever heard of a wetland was “any body of water deep enough to float a Supreme Court decision.”
In the latest case, it’s not yet clear if that definition has been met.
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