Profits over science mark SCOTUS decision

Wetlands— those swampy areas we sometimes encounter as we wander through our forests and other undeveloped acres—may seem like wasted land, but they are hard at work reducing flood risk during heavy rain events and filtering to provide safe drinking water for plants and other critters, including us humans.

In a classic case of “he who dies with the most toys, wins,” the U.S. Supreme Court last week chose profits over science when they ruled that the federal agency charged with enforcing the nation’s 1972 Clean Water Act had unconstitutionally overstepped its authority to protect most wetlands in the U.S. Additionally, the court said most wetlands scattered across the nation’s landscape are not even covered by the CWA.

The case in point involved an Idaho couple who, in 2004, purchased a piece of land on which they wanted to build a house. Unfortunately, the land was home to a wetland subject to EPA protection because it was near a ditch that fed a creek that flowed across a road and past a row of houses and into Priest Lake, a resort in the northwestern corner of Idaho. When the Sackets began filling in the wetland in preparation for building their new home, the EPA cited them, ordered them to remove the fill, and threatened them with a $40,000-a-day fine if they did not restore the wetland.

The Sackets sued the EPA and lost at every level—until they reached the U.S. Supreme Court.

The justices declared in their May 25 ruling the wetland was not protected under the Clean Water Act because the act applies only to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection.”

In other words, the EPA may protect wetlands only if one can wade in water flowing from the wet land to a body of water over which the agency has jurisdiction.

The ruling comes as the nation experiences increasing shortages of fresh water and burgeoning expenses incurred by ever more extreme storms. Wetlands are natural detention ponds, soaking up excess water like sponges, then slowly releasing it to seep through the ground or along ditches or other waterways.

“Scientists have understood for decades that surface water and groundwater are connected, Erica Gies, author of a 2022 book titled “Water Always Wins: Thriving in an Age of Drought and Deluge,” in which she explores efforts across the globe to restore structures nature once used to slow water flows.

“I think many people in the general public know that too, particularly people who work with the land,” she said, “but there’s been sort of a willful misunderstanding or ignoring of that reality.”

Beaver dams are one way nature slows water flow. Broad floodplains also slow flows, forming natural detention areas that allow excess water to spread out and become part of the water supply rather than rush headlong to the ocean, carrying with them soil, trees, bridges, apartment buildings and other natural and manmade structures.

“If you do build on a wetland, you are impinging on other peoples’ property rights,” Gies said, noting a study that revealed filling a wetland “can increase flood risk up to 40 miles away.”

By some accounts, we humans have filled or drained more than four-fifths of the world’s wetlands, resulting in a huge area no longer available for water storage. “That’s one reason why we’re seeing such a big increase in flooding these days,” Gies suggested.

With the increase in flooding comes a matching increase in tax dollars to repair what we have broken.

The 23,000-acre Priest Lake is the centerpiece of a huge resort area in the northwest corner of Idaho. Think Pennsylvania’s Raystown Lake (8,300-acres), only way larger. It seems likely the Sacketts knew what they were getting into when they purchased the property only 300 feet from the lake.

And given the expense of a trip up the lawyerly climb to SCOTUS, they likely had plenty of deep-pockets financial help on the journey. This story is about more than one couple trying to build what Justice Alito characterized as “a modest home” in the ’burbs.

This case was, I submit, removing an obstacle to corporate and investor profits. Obtaining EPA permission to destroy a wetland has, until now, come at an expensive cost. The Court’s optional and rare extra ruling accomplished its purpose of taking wetlands off the environment table by redefining the word “adjacent” to mean “only if it can be seen on the surface.” Science illustrating underground connections has been deliberately ignored, at least until our lawmakers adjust the Clean Water Act.

We The People will pay for that decision with every future drink of water.

EnvironmentJohn MessederJune 8, 2023