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Defining “wetland” proves elusive

April 04, 2018   By Jay Hudson in Environmental Stewardship

What is or is not a wetland continues to be debated and litigated.

Defining “wetland” proves elusive

In 2015, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers issued a rule to redefine “waters of the United States” that could include dry stream beds and perhaps ditches that contain water and flow into other water bodies. I wrote a blog on this a few years back.

What was at question in 2015 was what was a considered a “water of the U.S.” and what was not. At the turn of the 20th century, a water of the U.S. was clear: It was generally considered lakes, rivers and territorial seas---water bodies that contain water most if not all of the time. The definition began to get murky when the government began to regulate swampy areas otherwise known as wetlands in the 1970s. Don’t get me wrong. Wetlands are an indispensable part of our ecosystem. Wetlands store runoff and provide important habitat for unique species. Swampy wetland areas deserve protection as a “water of the U.S.”

The issue is what exactly constitutes a “wetland.” Is it soils?  Is it the habitat? Does it have to connect to a flowing water body? Does it contain water only seasonally?   Is a wetland some combination of these questions? These issues have been addressed over the years by several court decisions, including at the U.S. Supreme Court level.

In one court case (Rapanos v. U.S.), even the Supreme Court could not decide what constituted a wetland and wrote two opinions. One, from Justice Kennedy, stated that a wetland could have a “significant nexus” to waters that are actually navigable (like a river). For wetlands, a significant nexus exists when the wetland, either alone or in connection with similarly situated properties, significantly impacts the chemical, physical and biological integrity of a traditionally navigable water body--that wetland would be considered a “water of the U.S.”

Well, I’m still somewhat confused by that definition and so are many others. Justice Scalia, in the same case, wrote an opinion that “waters of the U.S. are ”relatively permanent, standing or continuously flowing bodies of water”—that is, streams, rivers and lakes. Wetlands could also be included, but only when they have a ‘continuous surface connection’ to other “waters of the United States.”

That does make sense. The current action by EPA is to redefine a “water of the U.S.” like Justice Scalia did. A wetland contains water or has a continuous surface connection to navigable water.  We’re moving in the right direction.