Wetland protections drying up 

In the wake of what Montana’s wetlands program manager calls “yet another poor decision by the federal government,” the Department of Environmental Quality is reevaluating legal protections for wetlands across the state.

Lynda Saul, state Department of Environmental Quality wetlands program manager, says the murky 5-4 ruling recently handed down by the U.S. Supreme Court is still being evaluated by her agency, but it caused enough unease to prompt DEQ to issue a June 26 warning that more comprehensive state wetlands protection laws are still in full force, despite the apparent federal flagging.

In Rapanos v. United States, four justices favored limiting the definition of wetlands, and thus federal jurisdiction and protections, to “continuously flowing bod[ies] of water,” excluding the many “intermittent” or “ephemeral” water bodies that periodically dry up; four judges held that the U.S. Army Corps of Engineers could interpret the definition more broadly, and Justice Anthony Kennedy wrote a concurring opinion to support a case-by-case evaluation to determine whether wetlands have “substantial” connections to other waterways.

“[The ruling] affects some water resources, and it’s not clear which ones because the decision is so confusing,” Saul says. “We’re interested to see if this ruling created a gap of water protection between states and the feds. And if it was created, then what we as a state need to do is step up and fill that gap.”

Wetlands, which account for less than 1 percent of the state’s surface area, and riparian areas, representing 3 percent, provide habitat for 60 percent of the state’s vulnerable species, Saul says. The Montana Water Quality Act provides extensive protections for state waters, which are broadly defined as “a body of water, irrigation system, or drainage system, either surface or underground,” including intermittent drainages.

In response to both Rapanos and a five-year-old Supreme Court decision limiting protection of isolated wetlands, DEQ is now pondering development of a state Wetland Protection Act to fill the regulatory gap, Saul says.

“States are taking more of a role because federal protection is diminishing,” she says. “It’s time to step in and take more of a leadership role in the protection of our wetlands.”

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