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Massachusetts wetlands protected despite Supreme Court ruling

cape cod wetlands
Cape Cod Commission

"The question going forward will be, 'Can we protect the quality of wetlands from the encroachment of development?'"

Wetlands are where water and land come together. They absorb runoff and flooding. But more than half the wetlands in the U.S. will lose federal protection following a Supreme Court decision.

The ruling, however, will have no effect on state laws in Massachusetts and about half the country. But the other half has only federal protection, which could signal an uptick in the pace of wetlands loss nationally, says Scott Jackson, a professor in the department of environmental conservation at UMass Amherst.

Jackson helped write the Massachusetts Wetlands Protection Act regulations and spoke with Morning Edition host Patrick Flanary.

Patrick Flanary I always assumed that once wetlands are deemed protected, there's no going back. What am I misunderstanding about that concept?

Scott Jackson Wetlands are protected under laws, and agencies promulgate regulations in order to implement those laws. And when they go up for judicial review, they can be modified. And that's what happened in this case. The Clean Water Act in 1972 underwent a variety of challenges that increased jurisdiction until about 2001, when a different Supreme Court began to rein it back in again and began constraining the jurisdiction that federal agencies had to protect these wetlands.

Patrick Flanary What did you think when you read the Supreme Court decision? It challenges federal EPA power, as well as the Clean Water Act, which is older than 50 years.

Scott Jackson It was disappointing. I think that it was a really poor reading of the text of the Clean Water Act. But I also recognize that the Clean Water Act is very vague in terms of what is protected. It uses a term called Waters of the United States but then doesn't define it. The Supreme Court did not overturn the Clean Water Act. They did not say it was unconstitutional. What they ruled was that the agencies went too far in interpreting the legislative language, and therefore it's still possible for those wetlands to be protected. It would just take an additional act of Congress to be more explicit about what wetlands are protected and which ones aren't.

Patrick Flanary And who knows how much time that would even take. You helped write the regulations for the Massachusetts Wetlands Protection Act. One in every four acres on Cape Cod is wetlands, according to the Cape Cod Commission. Can you tell us what is under threat right now, specifically on the Cape when it comes to protection? I'm thinking of marshes, bogs, dunes, and so on.

Scott Jackson Right. Massachusetts is fortunate in that it has probably the most protective Wetlands Protection Act in the country, and the Supreme Court decision has no effect on state laws. It did not rule wetlands protection unconstitutional, so it did not touch any of the laws that are in place in about 25 states. In some cases, the wetlands have to border on a river, stream, lake, pond, or the ocean in order to get that protection. Because we're a home rule state, Massachusetts municipalities have the ability to pass a municipal wetlands-protection bylaw, and they can fill the gaps in protection at a local level.

Patrick Flanary So in other words, we're untouchable, right? This decision is a federal one, and because we're in Massachusetts and we have strict state protections, we're OK as far as wetlands go.

Scott Jackson Right. Nothing's going to change based on this past ruling. There have been other challenges that were more constitutional, but they have never sort of gotten traction. And that was the idea that regulating wetlands resulted in a taking of land without compensation. The Supreme Court sort of indicated that that's generally not the case except for very narrow circumstances. But given the way the Supreme Court is overruling precedents that could change in the future.

Patrick Flanary You've been monitoring wetlands for how many years now?

Scott Jackson Over 30 years.

Patrick Flanary What has changed, and how quickly?

Scott Jackson Well, in Massachusetts, what's interesting is that the amount of wetlands has increased, and that's because the activity of beavers that are now more common throughout the state, as well as some of the changes on the coastline because of sea-level rise. So I think what we often think of as the biggest threat is development and people filling wetlands, but that does not seem to be having a very big impact. I'd say the bigger impact in Massachusetts is the development up to the edge of wetlands that can introduce pollutants into the wetlands, but also can eliminate habitat for species that utilize both wetlands and uplands.

Patrick Flanary What does this mean for Title 5, the state regulation mandating that some neighborhoods must upgrade from septic to sewer? Right now these wetlands are very close to septic systems, aren't they?

Scott Jackson Yes, the requirement generally is that septic systems have to be 50 feet from the edge of a wetland, which is not very far. And groundwater travels that distance fairly quickly. And so having a fairly strict septic code is helpful in terms of maintaining the quality of wetlands, but also the lakes, streams, ponds, and rivers.

As we have more and more development, we have to be able to adjust those regulations to keep the waters clean. In many states, there's no protection whatsoever except the federal protection. And now that that has been constrained, there's probably going to be an uptick in the pace of wetland loss nationally.

The Northeast is becoming wetter over time due to climate change and sea-level rise, and so areas of wetlands may also expand over time. So it may mean that those setbacks will be in different places 50 years from now than they are today.

We are not at threat of losing a lot of wetlands in Massachusetts because we have good regulations. The question going forward will be what condition will those wetlands be in, and can we protect the quality of those wetlands from the encroachment of development?

Patrick Flanary is a dad, journalist, and host of Morning Edition.