SCOTUS wetlands rollback through a development lens

BOZEMAN — On a recent rainy June day, Leanne Roulson pointed out features of a soggy area just inside the Bozeman city limits suggestive of a wetland. Cattails poked out from several inches of standing water. A dense clump of willows sheltered songbirds, which trilled from their dripping perches. 

If she wanted to, Roulson, a former president of the American Fisheries Society trained in botany, biology and ecology, could consult a three-part test to determine whether the Indreland Audubon Wetland Preserve is considered a wetland, scientifically — and the answer would  likely be yes. But the area’s legal definition for Clean Water Act purposes? That’s a more complicated question following the Sackett v. Environmental Protection Act ruling the U.S. Supreme Court issued last month. 

In the final act of a 15-year legal battle over the reach of the Clean Water Act, the Supreme Court removed federal protections for wetlands lacking a continuous surface connection with other waterways that are protected. With that, an estimated 100 million acres of wetlands across the nation are no longer protected by the Clean Water Act, including many in Montana. 

Regardless how they’re defined by the EPA, wetlands like the Indreland preserve still provide habitat for all manner of aquatic, avian and terrestrial species, Roulson said. Sometimes referred to as the kidneys of a watershed, wetlands improve water quality by allowing sediment to settle out. During floods they can act as a giant sponge, slowing water’s gravity-fueled descent to low-lying areas. Some of the water absorbed in a wetland will percolate into groundwater, where it can help sustain aquatic or semi-aquatic ecosystems through lean periods. 

All of that is still true, Roulson said, even if such wetlands are no longer “jurisdictional” under the Clean Water Act, the 51-year-old law that directs the EPA and Army Corps of Engineers to protect the integrity of the waters of the United States.

“Changing the legal definition does not actually alter the ecological function,”Roulson said of the Supreme Court’s decision.”To me, that’s where the United States public is losing out.”

The ecosystem services Roulson described also have ramifications for the drinking water many Montanans rely on. Roulson said she worries that under this narrowed “waters of the United States” definition, dumping fill material into a wetland for construction purposes — as the Sacketts sought to do in order to build a home upgradient of Priest Lake in Idaho — will become more commonplace. As a result, Roulson said she expects community water supplies to become more contaminated, which will in turn strain water treatment plants.

That could happen at the same time treatment plants like the Bozeman Water Reclamation Facility lose the critical filtration capacity provided by wetlands, according to Upper Missouri Waterkeeper Executive Director Guy Alsentzer, who described the Sackett ruling as the “kneecapping” of a fundamental clean water protection. 

“Wetlands are proven, in economic study after economic study, to be the most efficient, economical way to achieve pollutant reductions,” said Alsentzer, who likened them to the capillaries of a circulatory system in terms of their hydrological connectivity and importance.

Alsentzer said a narrowed waters of the United States scope is even more important in the context of Gallatin Valley’s sustained growth. According to recent estimates from the U.S. Census Bureau, Gallatin County has grown by 5% between April 2020 and July 2022. Mike Magrans, chief investment officer at Outlaw Real Estate Partners, recently told Explore Big Sky that he expects Bozeman’s population to double in the next 20 years.

Although Bozeman is also exploring high-density developments in its urban core, population growth frequently manifests as sprawl into previously open land. An analysis by Headwaters Economics found that 96,000 acres of open space in Gallatin County were converted to residential development between 1990 and 2018, besting the next-highest county in the state, Flathead, by 27%. 

With much of the most desirable real estate already claimed, developers have been exploring construction in more marginal areas, Alsentzer said.

“We’re now down to building in the areas that have complications in terms of sensitive water resources, high groundwater, wetlands, etc.,” he said. “These are all the places that are more difficult technically and logistically to build, and what we just saw was that the scope of federal and potentially state authority — at least under the Montana Water Quality Act — has been hamstrung.”

Many of southwestern Montana’s rivers have reached a tipping point, Alsentzer added. Such rivers include the Gallatin, which was recently classified as “impaired” by the EPA and its state counterpart, the Montana Department of Environmental Quality. The Sackett ruling will likely result in higher levels of the nutrients that fuel the Gallatin River’s now-annual summer algal blooms, which is bad news for trout and other aquatic species — not to mention local economies — dependent upon cold, clean water, Alsentzer said.

“This is all connected in my mind,” he said. “These are economic choices that we are making that unfortunately are being based on politics. The consequences are going to be borne by the [water and sewer] ratepayers, and our river-based businesses and folks that care about and value our outdoor heritage.”

In other circles, however, that economic analysis reads differently. The Montana Realtors Association did not return Montana Free Press’ request for comment, but the Sackett decision is described it as a “big win” that will “resound throughout the real estate development industry” in a Law360 analysis penned by three employees of an Atlanta, Georgia-based law firm nationally renowned for its expertise in real estate and land-use.

Article authors Gerald Pouncey, Stephen McCullers and Brian Remler wrote that developers are likely to see lower development costs, less legal exposure and fewer project delays under the Sackett decision. Fewer projects will be subject to the EPA and Corps permitting process, which is anticipated to expedite permitting for projects that do require prior approval, according to the authors’ analysis. 

“The Sackett decision brings long-awaited certainty and clarity for many landowners, developers and utility companies concerning federal jurisdiction under the Clean Water Act — and undoubtedly streamlines and reduces costs associated with the federal permitting process,” the trio wrote.

The authors also wrote that the “jurisdictional reach” of the Clean Water Act “has been substantially curtailed.” That’s a point upon which Roulson and Alsentzer are likely to agree.

Even so, Roulson, the Bozeman-based fisheries biologist and endangered species act consultant, said the ramifications of that curtailing will likely escape many people’s notice, even in a headwaters state like Montana that prides itself on its blue-ribbon fisheries. 

Sitting in a downtown coffee shop with a depiction of the Gallatin River and its tributaries on the ceiling, Roulson said the ruling is “much broader reaching than people think.” 

But it’s also an “additive thing,” she said. 

“It’ll be little bitty things across the county. It’ll have different types of effects in different water bodies. … It’s not going to be super obvious, which in some ways makes it worse.”