Congress must amend the Clean Water Act to remove any ambiguity in order to protect wetlands and water
Last year, the right-wing majority on the U.S. Supreme Court overturned Roe v. Wade, removing constitutional protection for the right to abortion, and returning control over reproductive rights to the states.
In May, the high court removed protection for a majority of America’s wetlands in Sackett v. EPA, a decision which will have profound consequences for our drinking water and the protection of wildlife for years to come. This drastic decision is of particular concern in South Dakota. Along with our neighbor to the north, we have numerous prairie potholes (like those in a U.S. Fish and Wildlife Service public domain photo taken in the Great Plains and posted in wikimedia commons) which have long operated as America’s “duck factory.”
Years ago, the Sacketts filled a small wetland so they could build a home on their property near Priest Lake in northern Idaho. They neglected to seek a permit under the Clean Water Act, and they were fined by the Environmental Protection Agency (EPA). They appealed this fine, and their case gradually worked its way to our highest court.
All nine Supreme Court justices ruled in favor of the Sacketts, finding that their small project did not violate the Clean Water Act. But five justices went much further, overturning their 2006 decision in Rapanos v. U.S., which had held that wetlands are protected by the Clean Water Act if they have a “significant nexus” to navigable waters and that the connection between a regulated wetland and navigable water did not have to be visible on the surface. Under the Sackett decision, wetlands will only be protected if they have a continuous surface connection to a river, lake or ocean.
This decision defies science and removes federal protection from 60 million acres of wetlands. For instance, floodplain wetlands that are cut off from rivers by artificial levees and coastal wetlands that are separated from the ocean by sand dunes will no longer be protected, because there is no continuous surface connection. The Grand Kankakee Marsh in Illinois and Indiana and the Okefenokee Swamp in Georgia and northern Florida may well lose federal protection.
Under the Biden administration, the EPA has used the Clean Water Act to protect America’s largest salmon fishery from the proposed Pebble Mine in Bristol Bay, Alaska. That decision may also be in jeopardy.
Justice Brett Kavanaugh filed a concurring opinion in the Sackett case, in which he was joined by the three remaining liberal justices (Kagan, Sotomayor and Jackson), arguing that the court was going too far: “The court’s ‘continuous surface connection’ test disregards the ordinary meaning of “adjacent” … (and) excludes wetlands that the text of the Clean Water Act covers.”
Justice Samuel Alito’s majority opinion holds that, henceforth, a wetland will not be federally protected unless it shares a “continuous surface connection such that there is no clear demarcation” between the wetland and the adjacent river or lake.
This extreme decision has alarmed the conservation community. Jared Mott, who is the conservation director for the Izaak Walton League, maintains that “well-understood science that wetlands and tributary streams directly and indirectly affect downstream water quality within their watershed” has been disregarded, and that “without applying the (Clean Water) Act’s protections to them, the integrity of the nation’s waters cannot be restored or maintained.”
The ongoing controversy over abortion rights will largely be resolved by state legislatures and by citizen-initiated ballot measures in states like South Dakota that vest that power in the public.
Water pollution policy is necessarily decided at the federal level. If our waters are to be adequately protected, Congress must amend the Clean Water Act to remove any ambiguity and to provide that wetlands and intermittent streams that have a clear hydrological connection to navigable waters will be protected.
Jay Davis is a retired Rapid City attorney
