Sackett case: How the Supreme Court ruling impacts the Mississippi River

On May 25, the U.S. Supreme Court announced a decision that drastically narrows the scope of the Clean Water Act and represents one of the most far-reaching rollbacks to this decades-old law since its passage in 1972. 

How does the Sackett v. EPA ruling impact the Mississippi River and its watershed in Minnesota and beyond? Let's dive in! 

How did we get here? 

Since 1972, the Clean Water Act has played an essential role in protecting the country's diverse aquatic environments from pollution and keeping them safe for fishing, swimming and wildlife (not to mention safe drinking water sources for millions of people). 

The goal of the Clean Water Act is 'to restore and maintain the chemical, physical, and biological integrity of the nation's waters — in part by prohibiting the discharge of any pollutants, including dredged or fill material without a permit.

Importantly, this includes protections for wetlands "adjacent to the waters of the United States." 

A series of legal challenges have since come forward, typically from industry, seeking to limit which waters — including adjacent wetlands — are protected as "waters of the U.S." In the now-famous 2006 Rapanos case, the Supreme Court brought forward the idea that adjacent wetlands are protected if they have a 'significant nexus' with the water of the U.S. — an approach that courts have generally followed until now. 

Justice Alito's ruling in Sackett v. U.S. EPA 

After their residential construction project in Idaho was halted in 2007, the Sackett family sued in 2008, questioning whether or not the wetlands on their property were sufficiently "adjacent" to nearby waters to be protected by the Clean Water Act. That case wound its way through the federal court system for the better part of fourteen years until this ruling.

While all 9 justices ruled for the plaintiff, they expressed different perspectives on approaching isolated wetlands. Writing for the court Justice Samuel Alito dismissed the significant nexus test. Instead, he asserted that any wetland lacking a "continuous surface connection" to river, lake or other water of the U.S. is no longer protected. 

The court held that the Clean Water Act extends to only those wetlands that are, "as a practical matter, indistinguishable from Waters of the United States." This represents a fairly surprising reversal of precedent, even by the standards of the current majority. 

Alito's opinion has no basis in science. It ignores the fact that water flows above ground and below ground, allowing wetlands and adjacent surface waters to interact even without a continuous visible surface connection.  

It also tosses out the significant nexus test and redefines the term "adjacent" from "next to or nearby" to instead mean "indistinguishable from" — a linguistic maneuver of historic proportions. 

Justice Elena Kagan noted that "in ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby. So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separates the two." Interestingly, Justice Brett Kavanaugh likewise took issue with Alito's rewriting of adjacent to mean physically adjoining.

But alas, the court has ruled. So what does it mean for our waters? 

Impact on U.S. wetlands and waters

Wetlands are critical to water quality and environmental health. They act as the kidneys of larger rivers and lakes, holding water and filtering out pollutants. They reduce flooding and protect against sea level rise. They provide critical habitat for wildlife. They are also an important carbon sink. 

By some estimates, at least half of the nation's wetlands could lose protection under this ruling. As a result, the ruling threatens the health of the nation's streams and wetlands and jeopardizes drinking water for millions of people. 

There is almost no scenario where the Mississippi River goes unharmed. The potential loss of wetlands can only result in increased pollution, more extreme floods, reduced habitat and increased emissions of greenhouse gasses. 

It is not hyperbole to consider this ruling one of the most significant rollbacks to the Clean Water Act in 50 years. 

What about Minnesota? 

If there is any good news to come out of this ruling, it's that Minnesota is in pretty good hands. We are lucky to have both a clear definition of public waters in state statute, a strong public waters program and a stand-alone Wetland Conservation Act here in Minnesota. 

As a result, Minnesota's wetlands are protected at the state level and are not exposed to the Supreme Court's rollback of the U.S. Clean Water Act. Those downstream are not so lucky.

Who can fix this? 

Congress can provide clarity and restore commonsense protections for our nation's water and wetlands. Unfortunately, swift and decisive action to strengthen environmental protections is not a hallmark of the current divided Congress. In fact, opening up the Clean Water Act to legislation may be more likely to result in further rollbacks rather than a successful fix of the Sackett ruling.

Furthermore, even if Congress takes action, there is little (outside of a faint desire to blunt public criticism) to prevent the current Supreme Court majority from inventing new legal arguments or redefining key phrases in a clarified definition of adjacent wetlands to overrule Congressional intent and achieve the same result. 

A patchwork of state fixes is possible in the near term in states with favorable political environments. That means community groups, businesses, states, tribes and wetland and floodplain managers will need to use and strengthen the patchwork of other protective tools to stem the losses of our essential waters. Together we'll need to:

• Advocate for increased federal funding to conservation programs that can permanently protect at-risk wetlands from development
• Enforce state, tribal and local water protections currently on the books
• Adopt new state, tribal and local requirements to prevent and clean up water pollution

Longterm, however, we will need renewed pressure from the public and a new (and airtight) legislative mandate from Congress to undo the damage of the Sackett v. EPA ruling — and possibly a new majority on the Supreme Court. 

While the Supreme Court's decision in Sackett v. EPA is hugely disappointing, our community must continue to fight for stronger clean water protections nationwide. Through our work at the state level and our growing portfolio of regional and federal policy advocacy, FMR will continue to advance the protections that our nation's waters deserve.