Clean Water at What Cost?


This being the first Monday in October means the Supreme Court is now back in a new session along with its newest member and the first Black woman Justice Ketanji Brown Jackson. Among its many cases the first to be reviewed is Sackett v. Environmental Protection Agency, pitting landowners Michael and Chantell Sackett of Idaho against the Environmental Protection Agency’s (EPA) ability to enforce the Clean Waters Act (CWA) in protecting our wetlands.

The agency is defending its right to protect the Sackett’s wetland property from development for the public good under the CWA. The issue of maintaining clean water as a resource is at odds with what the Sacketts have framed as a property owner’s right to construct a house by filling in the sensitive wetlands. The EPA requires a permit for any such work impacting wetlands that would degrade the water quality of the lake into which the wetlands feed.

The lot that the Sacketts purchased in 2004 lies within 300 feet of one of Idaho’s largest lakes and as a wetland is instrumental in filtering water entering the lake. Eight years prior to their purchase, the Army Corps of Engineers (ACE) determined the properties wetlands constituted a “navigable waterway” for its importance in maintaining the quality of water entering the lake.

As such, the couple were required to obtain a CWA permit to develop their property for a planned homesite. However, in 2007 the couple elected to begin construction without the required permit and began filling in the wetlands parcel with dirt and gravel to which the “EPA issued a compliance order requiring them to restore the parcel to its natural condition.”

The couple sued the EPA because of the compliance order asserting that the EPA did not have jurisdiction over their property. Herein lies the issue of private property rights as opposed to the government’s right through the CWA to maintain water quality along with the several definitions of language in the law.

While the court was hearing opening arguments in the case, outside a large group of environmental activists declared a Clean Water For All National Day of Action by demanding that the court protect our waters for the public good as climate change and global warming continue to reduce and negatively impact clean water sources around the world.

Several speakers addressed the crowd in the rain reminding the court of what a precious commodity clean water is and reminding everyone that life itself depends on unpolluted sources.

Raul Garcia from Earth Justice called upon everyone to question the obvious in why “Some court has to answer why we need clean water.”

Likening rivers as the circulator system of our country providing 2/3rds of our drinking water, Tom Kiernan of American Rivers went on to warn that “If this court slashes our clean water safeguards, countless streams and wetlands all over the country will no longer be protected. This means that polluters will be given free rein to use our nations waters as sewers once more.”

“If you only protect some of the water you haven’t protected any of it,” DJ Gerken of the Southern Environmental Law Center stated while also warning that “A coalition of oil lobbyists, mining companies and industrial polluters are backing the case before the Supreme Court today.”

Projecting what life without portable water is like, Michelle Mabson of Black Millennials 4 Flint related that “Eight years later, post water crisis many have to buy bottled water.” Clean potable water is too often taken for granted until it isn’t any longer available.

Bob Wendelgass of Clean Water Action related that “It’s really not the Sacketts that would benefit from a bad ruling in this case, it’s the oil and gas industry, it’s the developers and polluters who will get a freer hand to destroy our water.”

And finally, from her personal experience, Leslie Fields of the Sierra Club reflected that as a child she witnessed the Cuyahoga River burning in Cleveland, Ohio. “Access to clean safe reliable water is a fundamental human right. Polluters want to treat our water as cheap disposable areas to cut their costs.”

Today’s hearing isn’t the first time the Sacketts have been at the Supreme Court. In 2012 the court decided to allow the couple to move forward in challenging the EPA over the issue of “navigable waters.” Eventually the Ninth Circuit Court “…applied the test set forth by Justice Kennedy in his concurring opinion from the 2006 case of Rapanos v. United States, concluding that the Sackett’s property constituted “navigable waters” because of the existence of a “significant nexus between the wetlands in question and navigable waters in the traditional sense.”

Thus, the term “navigable waters” as a concept in law not only assures the waterway can be navigated in its use for interstate commerce and recreationally, but also under the CWA meaning it assures the quality of the water cannot be compromised “…significantly affect[-ing] the chemical, physical and biological integrity of other covered waters.”

However, as legal opinions go, the court could not agree on a deciding factor in determining the issues of jurisdiction for the EPA’s enforcement under the CWA respective to either concept of the “continuous surface water connection” (Scalia’s test) or “significant nexus” (Anthony M. Kennedy’s test) standards to be applied in ascertaining their authority to regulate the wetlands in question. To date, different courts have chosen one or the other of the two standards in deciding such matters.

Now the court must decide which of the two test is applied in this case. If they decide in favor of the narrower, “continuous surface water connection” that would negatively impact wetlands and in turn water purity across the country. If the court decides on that broader concept that “significant nexus” is enforceable, then wetlands would be better protected from such intrusion and degradation.

The final decision however in this conservative court environment will not likely be one based on science, but one of simple politics, influence and economics.

While the issue of water quality is so highly ensconced and protected by the CWA, one wonders how the West Virginia Mountain Valley Pipeline project (MVP)—discussed here in another article (see September 27)—ignore landowner “Red” Terry who is fighting Eminent Domain to protect her Tier 3 water source (of such purity that is protected as an Outstanding Natural resource [ONR]).

The courts in denying her the right to maintain this valuable resource are instead sacrificing it for the “greater good” through construction that will transport fossil fuels that in turn drive global warming. This stands as a prime example of how economic and political considerations overshadow the value water has for everyone’s benefit.

Maintaining pure water resources should never be determined by one’s political influence, financial resources or political connections as “Water is Life” is so often heard and yet so little appreciated and respected when politics and money are involved.

(This article has previously appeared in Nuzeink.)

Phil Pasquini is a freelance journalist and photographer. His reports and photographs appear in the Washington Report on Middle East Affairs, Pakistan Link and He is the author of Domes, Arches and Minarets: A History of Islamic-Inspired Buildings in America.

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