Less than half a mile from the roadside, sandwiched between a railroad and the Jeffery Manor neighborhood, a herd of nine deer grazed on tall grasses in Marian R. Byrnes Park. Overhead, a red-shouldered hawk soared through the sky while a blue jay with iridescent purple-blue feathers perched on a leafy sapling. It’s hard to believe the 140-acre park, consisting of a thriving wetland habitat, was once an industrial dumping ground.

“When I first came here, I thought it was a lake because there was so much water over there,” recalled Otto Beene, a nearby resident who has been taking frequent walks in the park for the past three years. “It was the rainy season, and there were frogs out.”

Beene’s excitement was palpable as he described the Far South Side park’s seasonal treasures: the coming and going of monarch butterflies, the birth of a fawn, three apple trees that just started bearing fruit, and a new pond that had formed a bit farther north.

Before industrialization, Marian Byrnes was part of an uninterrupted watershed that ran into Lake Calumet. Despite the artificial boundaries created by railroad tracks and highways, underground water systems still connect the park to the lake, said The Nature Conservancy’s Chicago Conservation Director John Legge. Even though not visible, the swales and seasonal ponds where ducks wade feed into Lake Calumet and, by extension, the Calumet River and Lake Michigan.

In the coming days, the U.S. Supreme Court will determine whether the federal government has jurisdiction over wetlands similar to Marian Byrnes. A case that pits property rights against ecology, Sackett v. EPA challenges whether isolated wetlands — those that do not abut a flowing body of water — fall under the purview of the Clean Water Act. The federal law regulates the discharge of pollutants into navigable waters such as lakes and rivers.

Developers and landowners argue that a broader definition of protected wetlands infringes on private property rights.

Meanwhile, environmentalists counter that it is imperative to protect the nation’s dwindling swamps and marshes. Beyond providing a sanctuary for city dwellers like Beene, isolated wetlands play an essential role in preventing flooding, filtering pollution, fostering biodiversity and mitigating the effects of climate change, they say.

“Historically, people have viewed these areas as not having any inherent value and places that we can pave it over,” said Legge.

[ Audubon looks to Great Lakes for wetland restoration: ‘If we can bring back Calumet, we can bring back any place’ ]

Illinois, for example, has already lost approximately 90% of its wetlands since 1818, according to the state’s Department of Natural Resources.

No longer private property, Marian Byrnes was designated a public park in 2011 so it is not at risk for development. However, like many wetlands on private property in Illinois, it is an isolated wetland like those at the center of the Sackett v. EPA argument. There are no state-level protections, so these wetlands rely on federal safeguards.

Both sides hope a Supreme Court decision will clarify the existing patchwork of regulations and provide uniform rules.

“The Clean Water Act is a terrific law in a variety of ways … but, sadly, with regard to small, geographically isolated wetlands, it has always been clear as mud,” said Paul Botts, executive director of Chicago-based conservation organization The Wetlands Initiative.

In 2007, Michael and Chantell Sackett began building a home on a half-acre plot of land a few hundred feet from Priest Lake in Idaho’s panhandle. As they filled the mushy earth with gravel for the foundation, the EPA ordered them to halt construction, citing their property as protected wetland that required a federal permit to develop. The Sacketts eventually appealed to the Supreme Court, arguing they do not need a permit because their land is separated from the nearest stream and lake by roads and an embankment.

The Supreme Court has attempted to clarify federal jurisdiction over wetlands in three previous cases. The most recent, Rapanos v. United States, resulted in two competing tests that have only led to more confusion.

Justice Antonin Scalia, joined by the three other conservative justices, reasoned that wetlands must have a “continuous surface connection” to “relatively permanent, standing or continuously flowing bodies of water” to be protected.

In a concurring opinion, which mostly disagreed with Scalia’s rationale, Justice Anthony Kennedy put forth a more flexible standard. He concluded that any wetland that significantly impacts the chemical, physical, and biological integrity of rivers, lakes and streams is protected.

Neither definition is adequate, according to Eric Freyfogle, an environmental law professor at the University of Illinois at Urbana-Champaign.

“(Scalia’s approach) is unduly restrictive because you could have a roadway or an embankment in between, but the wetland might actually be connected to a river through a culvert of some sort so that it is visibly cut off but not hydrologically disconnected,” he said.

Meanwhile, the other standard is too complicated to expect landowners to recognize.

“Kennedy’s approach has value if you’re talking about some state agency or a scientific group that is going out to evaluate the importance of wetlands to figure out which ones to protect, but I don’t think it’s a reasonable test to apply to landowners. Landowners need something that’s much simpler and easy for them to apply,” he said.

The Sacketts have built their case around Scalia’s approach, which would leave wetlands similar to Marian Byrnes unprotected at the federal level.

“I like (Scalia’s approach) because it’s common sense,” said Robert Vanni, an Illinois-based environmental consultant who helps developers navigate federal permitting.

He criticized recent interpretations of protected wetlands that have leaned on Kennedy’s approach to establish protections based on distance from a larger body of water for being arbitrary.

“It was difficult for me to wrap my head around because you had to imagine this biblical flood for something to connect from point A to point B. That’s how they maintained or took jurisdiction of areas, and that’s something that’s just not very scientific,” Vanni said.

However, determining whether a wetland deserves federal protection based on geographic isolation is too simplistic, according to wetland experts like Botts.

“To us, this is kind of a crazy question,” Botts explains. “There is no particular functional difference or benefits difference between small isolated wetlands and a different wetland of the same size that happens to be obviously connected to a river. Its biological functions are very similar.”

No matter how far wetlands are from a major body of water, they act as natural sponges that absorb water, preventing flooding and filtering out pollutants before they can reach waterways. They are also nurseries for biodiversity. In Illinois, over 77% of mammals, 90% of amphibians, 78% of reptiles, and 60% of bird species rely on wetlands to some extent, according to The Wetlands Initiative.

But developers and landowners like the Sacketts say broad definitions of protected wetlands infringe on private land rights and hinder development.

“For many people, it is just the epitome of an overreaching, officious state that is over-regulating people’s daily activities,” said Freyfogle.

The more rigorous standards can affect construction timelines, making projects more costly and time intensive.

“It will take many months to get through a project because the jurisdictional process is so difficult and cumbersome. There is no clear path. And it can slow down developments for a season or multiple seasons,” said Vanni.

With so many competing definitions of protected wetlands over the past five decades, landowners and developers also say they feel like the rules are constantly being changed.

“A lot of our wetlands today are important to us, in part because we have lost so many of them already. We’ve had generations of people who have filled and drained wetlands and done it freely without any limitation, and they’re now benefiting from it. And those landowners who were sort of the last in line, the last to do it, are the ones who are now being penalized,” said Freyfogle.

If wetland regulations are tightened, he suggested that perhaps there should be some economic or tax benefit for landowners who are restricted from developing their property.

“They’re penalized in a sense for leaving their wetlands around this long, and you know, we ought to be saying, ‘Thank you for leaving them here this long because they’ve been this beneficial for a long time,’” Freyfogle suggested. “Instead, they’re the ones who get hit.”

In the agricultural world, draining swamps to put the land to productive use has been considered useful for generations, said Freyfogle.

However, as industrial farming expands and the climate changes, wetlands’ ability to soak up excess water and filter runoff is more important than ever, he said.

Wetlands are remarkably good at preventing farm nutrient runoff from polluting waterways. This is important in Illinois, which contains some of the country’s most productive farming land but is also one of the highest contributors to runoff into the Mississippi River and, ultimately, the Gulf of Mexico.

The plants and microbes in wetlands filter the nitrate and phosphorus fertilizers commonly used in industrial farming. According to a 2022 study by The Nature Conservancy in Illinois, a wetland that is just 6% of the agricultural area in question can reduce nitrogen by nearly 50%. Wetlands’ natural filtration properties also benefit farmers directly, ensuring that excess runoff does not strip the fertility of nearby fields or affect drinking water quality.

Additionally, Botts explained that “wetlands are great tools for having adaptability and resilience as our climate changes.”

[ The planet could be losing one of its greatest natural allies against climate change ]

They have a remarkable capacity to sequester carbon, containing 20% to 30% of global soil carbon despite only making up 5% to 8% of land surface, according to a peer-reviewed study in Nature Communications.

Their absorptive quality also plays a vital role in combating flooding, which is only expected to intensify as climate change makes storms more severe and frequent.

While many property owners, farmers, developers and industrial business owners see wetland protections as an economic hindrance, environmental groups argue that such measures are actually cost-saving.

“When a landscape has lost a large fraction of its wetlands, it’s lost a large fraction of its ability to handle lots of water all at once. It’s lost a lot of those sponges, and so you end up having to do other expensive things that have other consequences,” Botts said.

The Metropolitan Water Reclamation District of Greater Chicago, for example, has spent over $3 billion since the mid-1970s to build a system of large underground tunnels and reservoirs designed to reduce flooding and protect Lake Michigan from pollution and sewage overflow. Ironically, Chicago was built on wetlands that would have naturally reduced flooding and filtered pollutants had they not been filled for development.

Known as the Deep Tunnel, it has been somewhat effective, but billions of gallons of sewage and runoff continue to pour into the local waterways, the Chicago River, and Lake Michigan during heavy storms.

[ Heavy rain overwhelms $3 billion Deep Tunnel again, forcing sewage into Lake Michigan ]

Botts points out that “it would work better and would not cost as much if we hadn’t paved the whole region.”

As he sees it, Deep Tunnel was put in place to do what wetlands naturally would have done.

“The opposite of being adaptable for a changing climate is to cast everything into concrete and steel and put it all in place,” said Botts.

The last three presidential administrations have attempted to further clarify Supreme Court interpretations of the Clean Water Act through EPA rules.

Replacing an unprecedentedly inclusive rule enacted under the Obama administration, the Trump EPA removed federal jurisdiction over 51% of wetlands in the United States according to EPA data, putting protections at their lowest since the Reagan administration.

The Biden EPA repealed Trump’s rule and replaced it with a middle ground in March, but it is currently only in effect in 24 states, including Illinois. The other 26 states have issued preliminary injunctions.

The lower courts and parties on both sides of the case hope that Sackett v. EPA will finally provide the clarity needed for uniform federal wetland protections.

“It’s just really not helpful to anybody to have this kind of confusion persist for much longer, but it has for at least 20 years,” said Jimmy Hague, senior water policy adviser of The Nature Conservancy.

After the case was argued in early October, many legal experts expected a quick 6-3 ruling along party lines, with the six conservative justices adopting Scalia’s opinion from Rapanos v. EPA. That ruling is expected any day.

Vanni and others working in development advocate for a more straightforward standard that ties the wetland directly to a body of water already clearly protected by the Clean Water Act.

“A traceable connection between wetlands to the navigable waterway or to a tributary to a navigable waterway would be my opinion on how or where the jurisdiction should begin,” he said.

Meanwhile, Botts hopes for a ruling that evaluates each wetland’s costs and benefits to a locale.

“We shouldn’t get all hung up on whether this particular kind of wetland or that particular kind of wetland counts more or less simply because we can see it flowing to and from a river or lake,” he argues.

Freyfogle suggests a simple test that considers seasonal changes and how man-made structures artificially break up from navigable bodies of water.

When walking from a river or lake to the plot of land in question, one should ask: “Is it possible for me to walk from A to B at some times of the year and my feet are always sort of soggy? You may have to go over a road or embankment or something, but if your feet are soggy during at least some substantial part of the year, (then it should be a protected wetland),” reasoned Freyfogle.

Following this test, “the Sacketts hydrological connection (would be) pretty clear,” he said.

If the Supreme Court rules against the government, wetlands around the country could be affected. Some states, including Illinois, do not have statewide protections for wetlands on private property.

“The federal is the floor for state protections, so if the feds come out with a set of wetland protections that are significantly less than what the historic levels have been, you’ll see state protection automatically decrease as well,” Hague said.

In Illinois, the Rivers, Lakes, and Streams Act requires a permit before anyone can put fill materials in “public water.” This could be interpreted to include wetlands, but the Illinois Department of Natural Resources has opted for a narrow interpretation of the program, limiting “public waters” to only the state’s largest bodies suitable to handle commercial boats.

When asked to comment on Sackett v. EPA and state-level wetland protections, a spokesperson for the department responded that wetlands protections were a “federal duty” with which the department has little to no involvement.

That said, if the Sackett v. EPA ruling curtails federal wetlands protections, local environmental groups like The Wetlands Initiative are ready to demand state-level regulations.

“I will predict that the second there is a ruling, environmental groups in Illinois will be in Springfield proposing and seeking that Illinois pass a state-level wetlands protection law,” Botts said. “There’s been a discussion off and on for years about proposing Illinois’ own wetlands law … but we can’t say what we’d be allowed to put into a proposed state law or what we need to put into a state law until we see what the Supreme Court does or does not do.”

However, Freyfogle believes that landowner and industry interests are likely too strong for any statewide wetlands protections to be realized.

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“Any governor would be very slow to interpret and apply such a law because it could arouse a lot of political opposition,” anticipates Freyfogle.

In the late 1970s, Marian Byrnes was also a subject of contention that actually resulted in its restoration and protection.

After spending decades as a slag dumping ground for nearby steel mills, the wetland was almost turned into a Chicago Transit Authority bus depot. It took a 32-year-long grassroots campaign for the land to be handed over to the Chicago Park District in 2011.

Following an extensive seven-year restoration, the park, named after the local schoolteacher turned environmental crusader who led the effort, was opened to the public. Today, city dwellers like Beene can find sanctuary in the natural space, which also mitigates flooding and pollution-laden runoff from the neighboring railway.

[ The accidental environmentalist ]

“It’s a great story of neighborhood activism and what people can do,” reminisced Legge. “If this hadn’t become public land — because it was owned by the railroad company (before) — it could have easily been developed since there were no (state or clear federal) protections for it.”

Marian Byrnes has an exceptional story of community activism. The preservation of the wetlands on the Sacketts’ property — and other wetlands on private lands — will depend on the court.

Karina Atkins is a freelance reporter.