Bayou Sauvage Urban National Wildlife Refuge, an area of marshland at the eastern edge of New Orleans, is — in biological terms — considered an area full of wetlands.
One of the last remaining marshes around lakes Ponchartrain and Borgne, the wildlife refuge contains estuaries and freshwater lagoons, where young fish, crabs and hundreds of species of birds find safe haven and food. Visitors and locals kayak in the bayous and hike through the marsh, while the city itself enjoys an added layer of flood protection provided by the presence of nearby wetlands.
But Bayou Sauvage no longer fits the legal definition of protected wetland under a new Louisiana law. The new definition excludes areas surrounded by levees, now called “fastlands.” Also excluded are wetlands that are naturally separated from what’s known as Waters of the United States (WOTUS), the navigable rivers and lakes protected under the federal Clean Water Act.
Much of Bayou Sauvage was sealed behind levees in the 1950s, said Matt Rota, senior policy director for environmental advocacy group Healthy Gulf.
“A reading of this law … could say that all of Bayou Sauvage, thousands of acres of wetlands, are now not protected,” Rota said.
Act 105 became law when Louisiana Gov. Jeff Landry signed it June 8, making Louisiana the latest state to roll back protections from development in isolated wetlands. The new policy is inspired by the 2023 U.S. Supreme Court decision in the case Sackett v. Environmental Protection Agency. Justices ruled, in a 5-4 vote, the EPA does not have the authority under the Clean Water Act to require a federal permit to dredge and fill wetlands isolated from WOTUS.
While Bayou Sauvage is still protected as a national wildlife refuge, other wetland areas with strong environmental value may now see openings to unfettered development under Louisiana law.
Tennessee and North Carolina have also redefined wetlands in their state laws following Sackett. Though the three states differ in how they now regulate building in wetland areas, all have the same goal: allowing more wetland development.
Jumping the gun
William Sutton, a wildlife ecologist and assistant professor at Tennessee State University, said isolated wetlands in his state play a vital role in preserving biodiversity and habitat for species such as the mole salamander, acting as “islands” of habitat spread across the region. It’s evolved in conjunction with isolated wetlands like those in Tennessee, said Sutton, and can’t just pack up and leave when development moves in.
“It’s not like these animals all of a sudden shift their life history to live in these different types of wetlands once you remove these isolated wetlands,” he said. “Once you remove that wetland, these animals can’t adapt to other wetlands that have things like high fish abundance or also things like high heavy metals or high nutrient loads.”
Rota said isolated wetlands areas are “still vital to the environment.” They can soak up millions of gallons of stormwater and runoff that would otherwise flood homes, he said.
The Environmental Protection Agency had previously considered isolated wetlands to be under their jurisdiction, requiring permits to fill or otherwise develop them. But the Sackett decision held that only wetlands with a continuous surface connection to WOTUS fall under Clean Water Act protections from draining and filling.
Clear guidance as to what “continuous” surface water connection means is something the Sackett decision didn’t provide. The EPA, now tasked with rewriting the definition of WOTUS, recently held a series of listening sessions across the country to gather guidance from stakeholders.
But Louisiana and other states are not waiting for a new federal definition.
Wetland advocates and law experts are concerned that approving state legislation that redefines wetlands before the EPA comes up with a national definition is hasty, with the potential to introduce flooding risks and water quality issues in newly developed areas.
“We would prefer that they wait until the EPA makes a clear definition,” said Angelle Bradford with the Sierra Club’s Louisiana-based Delta chapter.
“We are constantly fighting and worrying about flooding in coastal Louisiana,” Rota said. “Wetlands that are cut off by levees that are filled in, that’s going to reduce our flood protection and our storm resilience, not to mention reducing vital habitat.”
Basin battles
Throughout the Mississippi River Basin, states are taking different approaches to governing wetlands post-Sackett.
What might be biologically considered a wetland, using indicators such as the type of soil and plants in the area as well as water saturation on and below the surface, is now different from what is legally defined as a protected wetland area in Louisiana.
The state’s new law attempts to restrict the legal definition of wetlands to only cover areas with a “continuous” connection to rivers, lakes or other navigable bodies of water. Areas isolated from navigable waters or cut off by levees are now considered “fastlands” under the law, and don’t require a government permit to build on them — even if they have the biological features of a wetland.
But just like the Sackett decision, Louisiana’s law doesn’t clearly define what “continuous” means. Environmentalists say this sows confusion.
“It just doesn’t provide people with a clear understanding of what is going to be protected and what is not,” said Brennan Spoor, staff attorney with the environmental advocacy group Atchafalaya Basinkeeper in Louisiana. The new law “gives too many outlets” for “lack of consistency” in enforcing which areas need permits and which don’t, he added.
The new measure also tries to restrict the definition of wetlands under what critics say is the wrong part of Louisiana law. The new definition falls under the Louisiana Pollutant Discharge Elimination System, but in question is a developer’s ability to fill a wetland, not pollute it. The state relies on the federal Clean Water Act’s rules to regulate wetland fill and for now the federal rules are up in the air.
“If this is meant to narrow Louisiana law, it can’t without federal approval,” said Mark Davis, a Tulane University environmental law professor.
Louisiana’s new law also tries to erase the need for permits to build in wetlands cut off by existing or future legal levee construction. Even if that levee is built illegally, there’s a possibility that after-the-fact permitting will disqualify more wetlands from protections, Spoor said.
“It’s just going to be whatever a judge thinks, and a judge in some parish that supports wetlands might feel differently than a judge who thinks all industry should get to do whatever they want,” Spoor said.
Rota also worries the law could spur illegal construction or pollution by infusing “misguided” attempts to narrow the state’s definition of wetlands.
“If it’s not clear what a fastland is, I think that’ll give people a lot more impetus to just [decide] ‘if in doubt, dump, and then ask for forgiveness later,’” said Rota.
States start to update regulations
In Tennessee, relatively robust state wetland protections were repealed earlier this year. The state used to require developers to mitigate new development on wetlands as a tradeoff for building in swampy, water-saturated areas. Instead, it now uses a scoring system for isolated wetlands, classifying them into one of four categories: low-quality, moderate-quality, high-quality or artificial wetlands.
‘Low-quality’ isolated wetlands under one acre don’t need a permit to drain or fill, while ‘moderate-quality’ wetlands need to be under a quarter-acre. ‘Artificial wetlands’— created by either humans or animals — aren’t subject to any regulatory oversight for draining or filling.
About 80% of Tennessee’s isolated wetlands are smaller than one acre, said Grace Stranch, CEO of Tennessee environmental group Harpeth River Conservancy.
While regulations for building in low or moderate quality wetlands increase with their size – and “high quality” wetlands are subject to stricter standards – Sutton said magnitude doesn’t really correlate directly with a wetland’s value to the ecosystem.
“Isolated wetlands can be very small but can have really, really rich biodiversity,” he said.
Smaller, isolated wetlands are also harder to create artificially than larger systems, so it’s difficult to restore them after they are damaged, Sutton said.
“There’s really no way to guarantee it because the hydrology is just so hard to control in these wetlands, once you actually have to come back and reconstruct.”
The law now also gives Tennessee’s conservation commissioner a lot of power to independently expand acreage requirements for low- to moderate-quality wetlands. If the commissioner decides to broaden the law to larger parcels, it could leave the final fate of even more wetland areas uncertain.
Developers also no longer have to consider the cumulative impact of altering these wetlands on surrounding areas or water quality before dredging or filling them.
“Wetlands are directly connected to our river sources,” said Stranch, adding that many wetlands geographically isolated from one another can be connected in other ways, such as hydrologically or ecologically.
“They’re just not connected on the surface, and so that’s one of our biggest issues,” she said.
Water also flows across state boundaries; one state with stronger wetland protections may be impacted by things like nutrient runoff or increased floodwaters as a result of a different state’s’ wetland protection policy.
“It opens the floodgates,” said Jon D. Bumpus, spokesman for the environmental advocacy group TennGreen Land Conservancy.
“Going from a state that very staunchly protects wetlands to sending the message to developers … that this land is no longer off limits just sets a really, really dangerous immediate precedent that’s going to change a whole lot of things very quickly,” Bumpus said.
While there are ways to promote responsible development with tools like land easements and buffer zones built between houses and wetland areas, Bumpus said the new law doesn’t promote these types of adaptive strategies.
North Carolina, where rivers in its western region feed into the Mississippi River Basin, rolled back wetland protections so that only wetlands with WOTUS connection qualify for protection from being dredged or filled.
Lawmakers in the North Carolina General Assembly overrode a veto from Gov. Roy Cooper in order to update their law, which specifies the new EPA definition of wetlands, once established, will replace the state definition.
Other states in the Mississippi Basin, such as Indiana, have also passed laws to narrow the definition of wetlands and strip protections.
Some states, including Minnesota and Illinois, have extended wetlands protections.
Wisconsin has extended protection for non-federal, isolated wetlands, but the state’s authority doesn’t extend to federal wetland areas. That means the Prairie Pothole Region, comprising thousands of small wetlands in the state, and other isolated marshes are left without Clean Water Act protection after Sackett.
Given its history of flood control issues and valuable wetland habitat, Davis suggested Louisiana would be better off among the states expanding protections rather than rolling them back.
Louisiana Sen. Michael Fesi, who introduced Louisiana’s legislation to redefine wetlands, thinks easing wetlands regulation post-Sackett could incentivize levee construction and aid in flood protection. But legal experts and environmental advocates say that’s a red herring.
“One of the easiest ways to help with flood protection is to be careful about what you build in flood-prone areas,” Davis said, adding that tools such as building codes are an easier legal avenue to codify flood protection.
“Louisiana should not be one of those states that says, ‘Well, the Supreme Court says the Clean Water Act doesn’t apply as widely as it had before, so we shouldn’t do anything either,’” he said. “The real question is: What needs doing and how do we do it?”
Cassandra Stephenson contributed to this report.