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Why America’s clean water problem could get a lot worse

Teachers in the water studying water quality

In late August of this year, severe storms in Mississippi caused the Pearl River to flood. It shut down Jackson’s main water treatment facility and deprived 150,000 people in the state capital of clean drinking water.

That’s right, the water system in a state capital failed.

President Joe Biden declared a federal emergency, while analysts said the crisis was preceded by decades of racial discrimination, shifting demographics, and serious infrastructure problems that had been seriously exacerbated by climate change.

While Jackson’s water is back on and the city, state and federal government are collaborating in hopes of preventing it from happening again, there is a new and far more serious threat to the nation’s water supply: the U.S. Supreme Court.

Last week, the court heard oral arguments in Sackett vs. EPA, which on paper, is a case about one couple who wants to build a home on a small lot close to the idyllic Priest Lake in Idaho. The land sits on wetlands that feed the lake.

The Sackett case focuses on confusing wording tucked inside the 1972 Clean Water Act, a piece of law that governs pollution control and water quality of the nation’s waterways. The law specifically prohibits the discharging of pollutants in “navigable waters.” The questions that the Supreme Court will now have to grapple with is what exactly are the navigable waters of the United States and whether the act specifically covers wetlands adjacent to navigable bodies of water – like Priest Lake.

Not only are wetlands home to a wide variety of animals and plants, but they are also one of the most critical parts of the national water supply. Environmentalists call them the kidneys of the water supply.

They filter our pollutants and sediment before the water reaches larger bodies of water, like Priest Lake and Pearl River.

Wetlands are found in every state, most located east of the contiguous United States. However, Alaska’s wetlands cover approximately 43% of the state, roughly 175 million acres, according to the National Environmental Education Foundation, a Washington, D.C.-based non-profit.

The Sacketts’ legal challenge started in 2007 when the couple began building what they described as their “dream home” on wetlands that flow from an unnamed tributary to a creek that eventually flows into Priest Lake, about 300ft away from the proposed property. Not long after the Sacketts began building, the EPA issued a compliance order determining that the couple’s property contained wetlands considered “waters of the United States” and that placing sand and gravel into the wetlands violated the act. The EPA ordered the couple to restore the site or face penalties of up to $40,000 per day.

Instead, the Sacketts filed a lawsuit against the EPA, calling the order “arbitrary and capricious.” The EPA ruled that the compliance order was not open to judicial review, ironically starting a 15-year legal process. The case has been trundling through the lower courts and has now been seen by the Supreme Court on two occasions.

The last time was in 2012 when the Supreme Court’s ruling allowed the couple to challenge the EPA’s final judgment in a lower court. Ten years later, the case returned to the Supreme Court.

But if the Supreme Court sides with the Sacketts, experts believe it could drastically narrow the scope of the Clean Water Act and leave vast swaths of the nation’s water open to building and contamination, according to an amicus brief filed by the National Association of Wetland Managers.

The NAWM argues in the brief that the drinking water of 117 million people would be affected by a ruling against the EPA.

“Protecting water at its source (in headwaters and wetlands) is one of the most efficient methods of ensuring clean drinking water,” the association noted in its brief, noting that 51% of wetlands could be affected.

They added that a ruling in favor of the Sacketts would have “devastating national consequences” that would undermine the “chemical, physical, and biological integrity” of the nation’s waters, allowing for the “discharge of pollutants” and jeopardize “water quality” — all contrary to the Clean Water Act’s goals.

Despite controversy over the act within conservative circles, at least six justices questioned the Sacketts’ argument.

“Why did seven straight administrations not agree with you?” Associate Justice Brett Kavanaugh asked the Sacketts’ lawyer, according to a transcript of the oral arguments.

Despite skepticism within the nation’s highest court over the Sacketts argument, justices did raise issues with the Clean Water Act, with Justice Samuel Alito saying the act suffered from a “vagueness problem,” while Justice Neil Gorsuch queried how a “reasonable landowner” would be able to determine whether the act applied to their land.

Christopher Harress

Christopher Harress | charress@reckonmedia.com

Climate change reporter on the east and Gulf coasts.

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