Groups Wait on Sackett Ruling

High Court Case Could Roll Back Wetlands Protections in Mississippi Basin

The Nature Conservancy's Emiquon Preserve in central Illinois. A pending ruling from the U.S. Supreme Court could lessen protections for smaller, isolated wetlands. Agricultural groups fear the ruling also could lead to more regulation of waters in and around farms and ranches. (Photo by Juanpablo Ramirez-Franco, Harvest Public Media)

The remnants of the old levee are still visible at The Nature Conservancy's Emiquon Preserve in central Illinois, although these days it no longer holds back the Illinois River.

What used to be corn and soybean fields 17 years ago is nearly 7,000 acres of lush, restored wetlands.

Doug Blodgett grew up just across the river from what would eventually become the preserve. He remembers hearing old-timers reminiscing about the days when there'd be so many geese migrating through the floodplains that they'd blot out the sun.

He wasn't quite sure he believed those stories, until after the restoration began in 2007.

He said he was driving, and looked up and saw, "about 100,000 snow geese out here, and they all got up at once," he said. "The sun just disappeared, you could not see a ray of sunlight."

In addition to providing safe resting grounds for wildlife, wetlands serve as natural water filters, and can also reduce flooding during major rain events by giving water a place to collect and soak in.

Blodgett, a senior advisor at The Nature Conservancy, is easing into semi-retirement this year. Seeing thousands of birds, waterfowl and native plants return to the Illinois River Valley in the last 15 years has given him hope that there are more wetlands out there waiting to be restored.

But an ongoing U.S. Supreme Court case, Sacket v. EPA, could roll back the federal government's authority to regulate wetlands and potentially trim their protections altogether. That worries conservationists such as Blodgett, who said Illinois has lost 90% of the state's original wetlands, while many other Midwestern states have lost over 50%, according to the U.S. Fish and Wildlife Service.

"We don't have enough now, and we can't afford to lose more," Blodgett said. "So it is of great concern how this comes down and ultimately, the impact that it has on existing wetlands."

CHALLENGE TO THE CLEAN WATER ACT

The U.S. Supreme Court heard oral arguments in October for the Sackett v. EPA case, a 14-year-long legal battle launched from the backyard of an Idaho couple, the Sacketts, who were seeking to fill their lake-adjacent property with gravel. The EPA stopped them.

The case, which has been to the high court twice now, is aimed at challenging the federal protections the Clean Water Act provides to some waters and wetlands that fall under the definition of "Waters of the United States," commonly called WOTUS.

A recent study from the Tulane Institute on Water Resources Law and Policy has found that the ruling could have wide-ranging impacts and leave wetlands management up to states.

Mark Davis served as advisor on the report and has worked on wetland issues for 30 years. He said what's at stake with the Sackett case is the federal jurisdiction of the government over the nation's most valuable natural resource, water.

"It will mean that there are many important waters and wetlands that are no longer protected by law at all," he said.

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Larger wetlands, like Emiquon, will likely remain untouched, according to Davis. But smaller, more isolated wetlands and streams may lose protections.

AG GROUPS BACK SACKETTS

The Sackett case sprang from Idaho property owners Michael and Chantell Sackett, who have for years been prevented from developing a lot in Priest Lake, Idaho, because EPA has declared it to be a wetland adjacent to the navigable water of Priest Lake.

More specifically, EPA said because the wetland sits 30 feet from a jurisdictional wetland across the street separated by a road and ditch, it is considered an adjacent wetland.

Although the Sacketts' property doesn't have a surface connection to federally protected waterways, the EPA ordered the Sacketts to stop work, saying they were violating the Clean Water Act and threatening fines of tens of thousands of dollars per day if they didn't comply.

In a brief filed for the case, 14 major agricultural groups led by the American Farm Bureau Federation laid out their support for the Sacketts. The groups argued that a ruling in favor of EPA would broaden the definition of "waters of the U.S." and impose more burdens on farmers and ranchers.

Agricultural groups and the State of Texas made similar arguments earlier this month when multiple new lawsuits were against EPA over its latest attempt to define waters of the U.S.

See, "Ag Groups, State of Texas Ask Federal Court to Throw Out New WOTUS Rule," https://www.dtnpf.com/…

NAVIGABLE v SIGNIFICANT NEXUS

The Clean Water Act, passed in 1972, left wetlands protection very much up for interpretation. The law mentioned only "navigable" waters being included under WOTUS, which came under federal protection. The U.S. Army Corps of Engineers later added "adjacent" wetlands under federal projections, which a 1985 Supreme Court decision upheld.

Over the decades there were several challenges around just what could be considered "adjacent" wetlands. Federal regulatory powers over wetlands remained relatively unchanged until 2006, when Justice Anthony Kennedy wrote a case opinion stating a wetland should be under WOTUS protection if it shares a "significant nexus" with navigable water, meaning the flow of water from the wetland will eventually go downstream.

Scott Strand, a senior attorney with the Environmental Law and Policy Center, said that under the Obama administration, the EPA and Army Corps more substantially outlined the "significant nexus" standard. Strand said the rule didn't last long.

"That became controversial and it eventually gave way," he said.

Courts across the country filed injunctions against the Obama-era rule, and then the Trump Administration repealed it outright in 2019. The following year, the Biden administration yet again asked the EPA to revisit the rule, and in late December, the EPA finally released its latest version.

But the Sackett case could send the agency back to the drawing board, according to Paul Botts, the president and executive director of the Wetlands Initiative.

"The issue in that case is to what degree the current Clean Water Act gives the U.S. EPA authority to regulate isolated wetlands at all," he said. "If a majority of the Court decides that it does not, then no U.S. EPA rule on the topic is valid."

Should the court rule in favor of the Sacketts and limit the federal jurisdiction of agencies like the EPA and the Army Corps of Engineers to regulate the nation's wetlands, it would be left up to individual states. That could result in a patchwork of protections varying state-by-state, according to Maisah Khan, policy director with Mississippi River Network.

"Relying on different states to make up different rules ignores how what happens in one part of the Mississippi River has impacts on another," Khan said.

The Mississippi River basin is an interdependent system that covers over 1.3 million square miles and 31 states. Environmental laws in each of those states impact the others.

For example, fewer wetlands to soak up pollutants in the upper basin means more of those pollutants will instead end up rushing downriver, adding to the dead zone in the Gulf of Mexico.

The Tulane study found that 24 states rely on the Clean Water Act to regulate wetlands in their states. That means that they would have limited wetland regulations if the Supreme Court narrows the scope of the Clean Water Act.

The Supreme Court is expected to return a decision on the Sackett case sometime early this year

For now, the future for many of the country's wetlands, especially those seemingly isolated from rivers or streams, remains uncertain.

Yet at Emiquon, life will go on.

Scientists have documented about 93% of Illinois' threatened and endangered bird species associated with wetlands at the preserve. Blodgett thinks it could be more.

"I'm pretty sure the other 6 or 7% are out there," he said while looking out across the wetlands. "We just haven't had the right person at the right place at the right time to see them."

Tulane study: https://www.tulanewater.org/…

Also see, "EPA, Sacketts Wage Fight on Significant Nexus for Wetlands Before Supreme Court," https://www.dtnpf.com/…

Editor's Note: This story is a collaboration between the Mississippi River Basin Ag & Water Desk and Harvest Public Media. Madeline Heim, with the Milwaukee Journal Sentinel, contributed reporting. DTN Ag Policy Editor Chris Clayton also contributed to this report.

The Mississippi River Basin Ag & Water Desk is an editorially independent reporting network based at the University of Missouri School of Journalism. Harvest Public Media is a collaboration of public media newsrooms in the Midwest based at KCUR in Kansas City.

DTN/Progressive Farmer serves as a newsroom partner for the Ag & Water Desk. To learn more about the project, go to

https://agwaterdesk.org/…

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