An Update on the State of Wetlands

Have you heard people talking about the recent Supreme Court decision in the Sackett vs The Environmental Protection Agency and wondered what they meant? While I’m not going to get into the details of what that particular case was about, I do want to talk about what the decision in that case means for waters in the area, specifically, the Rosewood Nature Study Area. 

Truckee Meadows Parks Foundation has been working to restore the former golf course property since late 2018. Prior to this recent decision, there were 51 acres of wetlands on the property that were considered protected under the Clean Water Act. Since this definition affects many of the wetlands throughout the United States, I wanted to make sure that The Parks Foundation knew how this new decision could affect our abilities to continue the efforts of wetland restoration. Before we jump into what this decision could mean for Rosewood, let’s get into what this Supreme Court decision entails.

CLEAN WATER ACT:

Without getting into excruciating detail, most water quality regulations fall under the umbrella of the Clean Water Act. The EPA defines the Clean Water Act as "the primary Federal statute governing the restoration and maintenance of the ‘chemical, physical, and biological integrity of the Nation’s waters. (CWA § 101). One of its principal objectives is to prohibit the discharge of pollutants into waters of the U.S., except in compliance with a permit.” The part “waters of the U.S,” also commonly referred to as WOTUS, is what tends to be the most divisive part of this act, and the definition of what this means was adjusted following the Sackett vs EPA decision.

WATERS OF THE UNITED STATES (WOTUS):

The newly adopted definition for WOTUS is:

40 CFR 120.2(a)

(1) Waters which are:

(i) Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(ii) The territorial seas; or

(iii) Interstate waters;

(2) Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;

(3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section that are relatively permanent, standing or continuously flowing bodies of water;

(4) Wetlands adjacent to the following waters:

(i) Waters identified in paragraph (a)(1) of this section; or

(ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3) of this section and with a continuous surface connection to those waters; 

(5) Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) of this section that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3) of this section.

Eight exclusions from the definition of "waters of the United States" are codified at paragraph (b), and key terms are defined at paragraph (c). "Adjacent" is defined at (c)(2) as "having a continuous surface connection."

Although this seems like a fairly comprehensive definition, there are many things that have been changed that pull back the protections for wetlands and tributaries. Below is a table from the EPA that breaks down what was changed from the previous definition to this one.

Jurisdictional Category	Key Changes to the January 2023 Rule Regulation Text	Regulatory Text Paragraph
Traditional Navigable Waters	No changes	(a)(1)
Territorial Seas	No changes	(a)(1)
Interstate Waters	Removing interstate wetlands from the text of the interstate waters provision	(a)(1)
Impoundments	No changes	(a)(2)
Tributaries	Removing the significant nexus standard	(a)(3)
Adjacent Wetlands	Removing the significant nexus standard	(a)(4)
Additional Waters	Removing the significant nexus standard; removing wetlands and streams from the text of the provision	(a)(5)
Wetlands	No changes	(c)(1)
Adjacent Wetlands	Revised definition to mean "having a continuous surface connection."	(c)(2)
High tide line	No changes	(c)(3)
Ordinary high water mark	No changes	(c)(4)
Tidal waters	No changes	(c)(5)
Significantly affect	Deleted definition	(c)(6)

Source: /https://www.epa.gov/system/files/documents/2023-08/FINAL_WOTUSPublicFactSheet08292023.pdf

Two of the biggest changes that are present are “removal of significant nexus standard” and the revised definition of “adjacent wetlands.” Previously, wetlands that were adjacent to other WOTUS but didn’t have a visible above ground connection to those waters could still be protected if there was evidence of a significant nexus between the water through things like ground water or change in water levels. With the revised definition, wetlands need to have a continuous surface connection to other WOTUS in order to be considered a WOTUS. This presents an issue with wetland areas because different categories of wetlands have different water storage capacities. For example, seasonal wet meadows are only inundated during the higher precipitation parts of the year, therefore, there is not a continuous surface connection to other waters but the groundwater is just below the surface, and everything is still connected even if we don’t see it. The significant nexus test that was a part of the previous definition allowed for these wetlands to still be considered a WOTUS because there would be evidence to show that these wetlands were indeed connected to other waters, and pollution entering the wetlands would enter those other waters.

Wet meadow connected to waterway during water event.

Same wet meadow with no “continuous surface connection” during low water times

It is important to note that some states have protections in place for waters in their state, so this is not to say that all waters that do not qualify as a WOTUS have no protections.

IMPORTANCE OF WETLANDS:

It is vitally important that wetlands are protected from pollution and destruction for many reasons. Healthy wetlands are able to store extreme amounts of water which helps to reduce flood risk in communities. Not only do these wetlands reduce the risk, and even the intensity, of floods, but they can also help to clean and filter the water that flows through them. Water traveling through a wetland is slowed by topography and vegetation and as the water slows nutrients and sediment settle out of the water. There are also wetland plants that will uptake these nutrients into their roots and utilize them. 

In addition to the many benefits wetlands play in water quality, they are also extremely productive ecosystems that are second only to tropical rainforests in productivity when looking at terrestrial systems. Wetlands take up only about 5% of the land surface, but are home to approximately 30% of our plant species. These include terrestrial and aquatic species.

ROSEWOOD NATURE STUDY AREA MOVING FORWARD:

Now that we’ve gone through some of the nitty gritty of the definition, we can ask ourselves how this affects the waters in our area, specifically looking at the Rosewood Nature Study Area. The Truckee River and Steamboat Creek are considered a WOTUS under this new definition, which is great news in our area for protection! The Truckee is fairly easy to interpret looking at the definition because it is both an interstate water (flows through more than one state), and is used for commerce. Steamboat Creek is categorized as a WOTUS because it is a tributary (a river or stream that flows into a larger river, lake, or pond) to the Truckee River and there is a continuous visible connection between the creek and the Truckee River. 

Because most of the wetlands within the Rosewood Nature Study Area are along Steamboat Creek, we can assume that they would be considered a WOTUS if they were regularly inundated with water and had a visible connection to the creek. Many of the wetland areas have culverts that connect them to the surrounding creeks, which in my opinion, would count as a visible connection between the waters. These culverts now not only help us regulate water flows, but can extend the protections available to wetlands in the area. 

Unfortunately, not all of the delineated wetland areas within Rosewood have a continuous visual connection to a defined WOTUS, not even through culverts. These are mostly the seasonal meadows that are only inundated after water events or during the months the snow is melting from the Sierras. The fact that they are not always under water though does not make them less valuable as an ecosystem. These meadows can support plants that more consistently inundated areas can’t, which increases the biodiversity in the area. They also flood during any high water event, and prevent water from flowing into areas where we wouldn’t want it to go. These wetland areas are in a floodplain, and their ability to store flood water is vitally important both in limiting destruction caused by floods, and also storing water to recharge the groundwater.

Swollen creek during weather event

Creek during moderate weather

FUTURE IMPLICATIONS:

Without having someone from the Army Corps of Engineers come out and do a site assessment, we can’t 100% say for certain that the wetlands at Rosewood are still federally protected under the Clean Water Act, but we will carry on with operations at the nature study area as if they are based on the new definitions and need for a healthy wetland habitat. Truckee Meadows Parks Foundation is committed to ensuring that the wetlands we are managing remain protected and their rehabilitation is a top priority. 

The loss of wetlands in the world would cause catastrophic issues for humans, wildlife, and biodiversity as a whole. Conservation of wetlands has always been an important undertaking, but it is more vital now to ensure that these areas are protected from development and degradation to ensure the ecosystem services they provide continue into the future.

Meadow area storing flood water during weather event

Same meadow during low water times

Click these links if you are interested in learning more about the Clean Water Act, Waters of the United States, or the Sackett vs Environmental Protection Agency

Sources:

• Environmental Protection Agency. (2023, October 10). About Waters of the United States. https://www.epa.gov/wotus/about-waters-united-states 

• Environmental Protection Agency. (2023, December 14). Clean Water Act (CWA) and Federal Facilities https://www.epa.gov/enforcement/clean-water-act-cwa-and-federal-facilities#:~:text=CWA%20is%20the%20primary%20Federal,in%20compliance%20with%20a%20permit. 

• Sackett vs Environmental Protection Agency (Supreme Court of the United States May 25, 2023). 

• Additional sources include conversation with Nevada Division of Environmental Protection and The Army Corps of Engineers.

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About the Author

Elena served as a Naturalist Educator for TMPF in the spring and summer of 2018 and is now working as the VP of Rosewood Nature Study Area.  She's a local, and is extremely excited and proud to be working to restore an abandoned open space back to a functional ecosystem in her hometown.  In her free time, Elena can be found obsessing over dogs or participating in trivia nights.