What an EPA rule change means for Ohio wetlands

Lake Erie was declared dead in the 1960s. It was so overrun by pollutants that dead fish littered the shores and the adjoining Cuyahoga River caught fire.

Those bodies of water are a lot healthier now, and that has a lot to do with the Clean Water Act, which established rules in 1972 to regulate water pollution.

But this week, the U.S. Environmental Protection Agency rolled back some of those rules, narrowing protections for wetlands, to comply with the recent Supreme Court decision Sackett v. Environmental Protection Agency.

The changes leave millions of acres of wetlands across the country without federal protections, including one in Adams County, on the southern edge of Ohio.

The Strait Creek restoration site

On the side of a rural road, Devin Schenk leads the way through a field of chin-high grass.

“We're walking over to the stream area,” he explained. “This was agricultural land that we're converting into forest.”

Schenk manages The Nature Conservancy’s mitigation program, where he helps restore ecosystems like this one.

A few minutes into the hike, he stops.

“We're standing where a field was,” he said, “and now we're in inches of water.”

This is a wetland, and Schenk says while it might not seem like much, it’s really important.

“Wetlands are referred to as nature's kidney because of the way they filter out pollutants,” he said.

This sloppy, squishy mud pool actually purifies the groundwater beneath it. And when it makes its way back into the nearby stream — and eventually the Ohio River — it’s cleaner than it was before.

Amelia Harris, a restoration ecologist with The Nature Conservancy, points to another wetland closeby.

“It may not look like it, but another one of our wetlands is kind of up on that hill,” she said.

But unlike the first, that one is not directly connected to a stream, and therefore has no surface connection to the Ohio River or any other larger body of water.

That small distinction now makes a world of difference.

The Supreme Court’s decision

That’s because, in its recent decision Sackett v. the Environmental Protection Agency, the U.S. Supreme Court ruled the Clean Water Act only applies to wetlands with a “continuous surface connection” to U.S. waters — navigable bodies of water that extend through multiple states, like the Ohio River.

Nationwide, more than 45 million acres of wetlands, including this one up on the hill, will lose federal protection.

While they may not be connected to a larger body of water on the surface, they still replenish the groundwater underneath.

“To say that all of these other features aren't important and aren't worthy of oversight is really disturbing,” Harris said. “And it has a big impact in rural areas where a lot of people are reliant on well water. And well water is groundwater. That's the water that your kids are drinking and bathing in and you wash your dishes in.”

But not everyone agrees.

Proponents of the decision

The Ohio Farm Bureau, and 19 other state farm bureaus, argues those federal regulations went too far.

They submitted an amicus brief to that end, and it was cited in the Supreme Court’s final decision.

Leah Curtis, the Ohio Farm Bureau’s policy council, says the court’s decision makes it easier for landowners and farmers to determine what is or isn’t federally protected.

“I think people generally want to do the right thing,” she said. “And when those regulations are clear and they can understand clearly how they apply to them, then they can do that.”

And Curtis points out, Ohio still has its own statewide protections for wetlands.

“What’s happening in Ohio is going to be a lot different water-wise than what happens in Arizona,” she said. “And so having that differentiation, having those states be able to make those determinations, can make for a better experience for everybody because they are that more local agency.”

Only about half of states have their own protections for wetlands. And after the Supreme Court decision, North Carolina’s legislature rolled back its state wetlands protections.

Devin Schenk worries that could happen in Ohio too, where 90% of the state’s wetlands have already been drained, filled or degraded.

But even if it doesn’t, pollution from other states can make its way into Ohio water.

“We live in a country of highly connected waterways, and our streams and wetlands don't care about political boundaries,” Schenk said. “And so relying on a hodgepodge of state protection is really troublesome.”

Fourteen states drain into the Ohio River.

And without federal protections for isolated wetlands, Schenk says the weakest state laws could have ripple effects in Ohio and beyond.

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