As federal protections for wetlands face potential rollback, Wisconsin stands at a crossroads. Recent proposals from the Environmental Protection Agency (EPA) and Army Corps of Engineers suggest that only 13 percent of Wisconsin’s wetlands might retain federal safeguards, yet state laws could still offer substantial protection for the majority.
Proposed amendments to the “waters of the United States” rule could strip federal oversight from more than 80 percent of wetlands nationwide, based on the regulatory impact analysis from last month. In Wisconsin, this translates to federal protection for only 13 percent or 791,933 acres of its wetlands.
The state has already seen significant losses, having lost over half of its initial 10 million acres of wetlands by 1990, primarily due to agricultural activities. Presently, approximately 6 million acres remain.
Erin O’Brien, from the Wisconsin Wetlands Association, highlights the complexity in gauging the impact of these changes, noting, “Measuring the … acreage of unprotected waters or actual potential impacts is really difficult.” The absence of protection doesn’t guarantee development but does increase vulnerability.
Following a Supreme Court decision in 2023, known as the Sackett decision, the EPA’s authority to regulate certain wetlands under the Clean Water Act was curtailed. This decision limits regulation to wetlands with a “continuous surface connection” to permanent waterways.
The EPA’s new criteria define “relatively permanent” waterways as those flowing during the “wet season” or year-round, influencing whether federal permits are necessary for development projects.
Despite these changes, Wisconsin’s wetlands might be better shielded compared to other states, thanks to a 2001 state law that safeguards isolated wetlands. Steph Tai, a law professor at the University of Wisconsin-Madison, emphasizes that any wetland development will still require state permits.
However, certain smaller wetlands might become more susceptible to development due to state law exemptions, particularly those affecting nonfederal wetlands. A 2018 law exempts discharges into some urban and rural wetlands from state permitting necessities, provided they are not rare or high-quality.
Jane Landretti from Stafford Rosenbaum notes, “I do think the federal government is more eager to give determinations that they don’t have jurisdiction over certain wetlands.” This could facilitate landowners seeking nonfederal exemptions.
According to the Department of Natural Resources, 84 acres of discharges were exempt from state permits between 2022 and 2024, while wetland restoration projects added over 4,700 acres.
The EPA is currently seeking public feedback on the proposal until January 5, as stakeholders weigh in on the potential implications for Wisconsin’s wetlands.
