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U.S. Supreme Court case could weaken wetland protections

Public Domain

A U.S. Supreme Court case with a hearing next month could affect South Dakota's prairie potholes and countless other waterways.

The case began when an Idaho family, the Sacketts, purchased a residential lot near a lake. They filled the lot with gravel to get it ready for home construction.

The EPA ordered the family to remove gravel and return the lot to its natural state, arguing that the lot contained wetlands subject to regulation under the Clean Water Act.

The Sacketts sued in 2008, arguing that the EPA lacked jurisdiction over their property.

After a Circuit Court ruled in favor of the EPA, the Sacketts appealed the case to the U.S. Supreme Court which agreed to hear oral arguments this year.

If the Court agrees with the petitioners, a number of conservation groups say it would have devastating impacts on wetland conservation, outdoor recreation, and water quality.

Jared Mott is the conservation director of the Izaak Walton League of America. He said changing the EPA's jurisdiction is unsupported by law, science, and common sense.

"It's not a mystery why the Clean Water Act was able to improve water quality so quickly, and that's because it established this federal floor," Mott said. "And if we removed that floor, I think it's silly to think the states are going to step up and replace those protections. And in a state like South Dakota, I think that means a loss of water quality because these wetlands are absolutely part of these larger watersheds. It's not going to be good for wildlife."

The Sacketts said wetlands should no longer be protected by the Clean Water Act unless they meet the requirements of a two-part test they've proposed. That test would protect wetlands from being drained and filled only if the wetland has a relatively permanent continuous surface water connection to adjacent water and the adjacent water is commercially navigable.

USD freshwater biologist Jeff Wesner said in an email, "The two-part requirement as proposed demonstrates a lack of understanding of what a wetland is. In terms of permanence, the definition as given is nearly impossible to use. It provides no justification from, an ecological standpoint or from a hydrological standpoint, on what permanence is."

If the high court adopts the new standard, the majority of wetlands in the U.S. would lose protection under the Clean Water Act.

Silvia Secchi, a natural resource economist at the University of Iowa, said energy, mining, and housing developers are enthralled with the idea that their future projects could have less oversight depending on the ruling.

"What the Supreme Court is about to decide is becoming intertwined with what Congress is doing. Congress is discussing permitting reform. And this was part of the deal with the inflation reduction act, and how to fast track, essentially, new energy development," Secchi said. "And people would say we're gonna get to more energy independence, and we're going to see a reduction in energy prices faster. On the other hand, at what cost?"

Congress passed the Clean Water Act in 1972, and its purpose is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The law also aims at advancing the “protection of fish, shellfish, and wildlife,” and promotes “recreation in and on the water.”

Wetlands regulate the flow of water, filter out pollutants, and disperse sediment. Isolated wetlands that lack a continuous surface connection to another body of water can directly affect the chemical, physical and biological integrity of downstream waters through underground connections, or "sub-surface waterways."

Joshua is the business and economics reporter with SDPB News.