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U.S. Supreme Court hears case that could weaken wetland protections

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NDGFP

The U.S. Supreme Court heard oral arguments for a case that could affect South Dakota's ponds, streams, lakes and rivers.

The case began when the Sacketts family purchased a residential lot. They filled the lot with gravel for home construction.

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

The family sued in 2008 and have appealed their case to the U.S. Supreme Court. The Court heard arguments Monday.

The Sacketts argue wetlands should no longer be protected by the Clean Water Act unless they meet requirements of a two-part test. 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.

The Sacketts' lawyer, Damien Schiff, argued current regulations create too much red tape for developers.

"This is not an easy process. It's not a cheap process and in terms of notice. It's not a fair process which is why this court should definitively jettison that test," Schiff said.

The EPA argues the family's proposal demonstrates a lack of understanding of what wetlands are. They said surface land barriers between wetlands are essentially meaningless. Isolated wetlands are still part of a greater watershed and impact the chemical, physical and biological integrity of downstream waters through underground connections.

A watershed is an area of land with a common set of waterways and streams that all drain into a single larger body of water, such as a river or lake.

However, Supreme Court Justice Neil Gorsuch took issue with the scientific definition that meant one body of water could impact another a mile away.

"How is a person subject to criminal time in federal prison supposed to know?" Gorsuch asked.

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

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

Wetlands regulate the flow of water, filter out pollutants, sequester carbon, are habitats for wildlife, and disperse sediment.

The Court's decision is currently pending adjudication.

Joshua is the business and economics reporter with SDPB News.