New federal definition and ongoing litigation are dire threats to wetlands
Commentary By: Brad Johnson
Hundreds of thousands of acres of wetlands in northeastern South Dakota are likely to lose federal protection under the Trump administration’s proposed narrow interpretation of what water is important to preserve.
The proposed restrictive definition says a wetland deserves protection only if it has a continuous surface connection to a navigable stream or lake.
That leaves almost all of South Dakota’s 1.7 million acres of wetlands, which are home to about half of all threatened and endangered species, at the mercy of land developers and agricultural interests.
A new report by the Natural Resources Defense Council (NRDC) shows the catastrophic loss of federal protections for wetlands across the United States.
Using Geographic Information System (GIS) modeling, the model can zero in on specific counties. It shows that more than 70 million acres of wetlands — approximately 84% of the total area protected before the U.S. Supreme Court’s 2023 Sackett v. EPA decision — are left without federal safeguards.
It also shows that nonperennial streams, which make up the vast majority of U.S. waterways and are essential for drinking water and flood mitigation, are also at risk. If only perennial streams remain protected, more than 8 million miles of U.S. streams could lose Clean Water Act protections.
Under the Trump administration’s definition, about 460,000 individual wetlands covering about 743,000 acres in northeastern South Dakota’s 10 most affected counties would be at risk.
The most impacted counties in order are Brown, Beadle, Hand, Spink, Faulk, Edmunds, Roberts, McPherson, Sanborn and Hyde.
An additional threat is emerging in a lawsuit in Iowa that seeks to overturn the federal Swampbuster and Sodbuster provisions that tie wetland preservation to farm safety-net programs. Arguments were heard Monday in Cedar Rapids.
At the federal level, organizations and individuals will have opportunities this month to voice their support for wetlands. The EPA has offered a general 30-day public comment period and a series of listening sessions.
Schedules for states, tribes, industry and agricultural stakeholders and environmental and conservation stakeholders have been set from April 29 to May 1, but a listening session for the general public has not been announced.
The odds of convincing the Trump administration to broaden its protection appear daunting.
In the Sackett decision, the court ruled that wetlands are protected by the Clean Water Act only when they have a “continuous surface connection” to other covered waters. It also held that other waters, like streams, are only protected if they are “relatively permanent.”
The Biden administration liberally interpreted what constituted a connection, but Trump’s Environmental Protection Agency and Army Corps of Engineers are taking a strict approach, excluding most of what we think of as a wetland or marsh or protected streams.
“Our analysis confirms that the Supreme Court has gutted the Clean Water Act’s ability to protect our wetlands, exposing communities to increased flooding, worsening water pollution, and threatening habitats that sustain wildlife and local economies,” said Jon Devine, freshwater ecosystems director at NRDC.
In South Dakota, potentially “93 percent of wetland area and 99 percent of individual wetlands are predicted to lack protection,” the NRDC analysis said.
The National Wildlife Federation, which is the nation’s largest hunting and fishing conservation organization, is also voicing opposition.
“This will be the fourth rule attempting to define the Waters of the United States in a decade. We need to stop playing political ping pong with this vital issue,” said Jim Murphy, the federation’s director of legal advocacy. “With the likelihood of a skeletal workforce at EPA, this move will put even more pressure and expense on states and localities to ensure our water is safe.”
For South Dakota, which does not have a state wetland program plan or a wetland monitoring plan, a resource so important to the state’s $1.4 billion annual fishing and hunting economy and quality of life appears as threatened as the species that depend on their life-giving waters.