The U.S. Supreme Court dramatically curtailed Clean Water Act protections with its ruling in Sackett v. EPA, favoring polluters over the health of wetlands and headwater creeks across Montana and the nation.
Let’s back up. What was the Sackett v. EPA case about?
The Sacketts, a family in Idaho, purchased a parcel of land on wetlands located 100 yards and separated by a road from Priest Lake. When the Sacketts began construction on their home, they filled in wetlands without a permit. The EPA stepped in and found the Sacketts to be in violation of the Clean Water Act, but the Sacketts disagreed and took the EPA to court in 2008.
The Sacketts argued that the wetlands on their property have no physical connection to Priest Lake and therefore the EPA has no jurisdiction over the wetlands. The EPA, however, argued that the wetlands are jurisdictional based on the Supreme Court’s 2006 ruling in Rapanos v. United States, in which Justice Kennedy determined wetlands with a ‘significant nexus’ to be included under the definition of ‘Waters of the United States’ (WOTUS) and afforded protections under the Clean Water Act.
On May 25, 2022 the Supreme Court agreed with the Sackett’s and made the most drastic reduction to Clean Water Act protections in the history of the law. The unscientific ruling limited wetland protections to only those with a “continuous surface connection” to other WOTUS, throwing out the “significant nexus” test and completely disregarding the facts of hydrologic connectivity. Developers and polluters are now free to bulldoze, fill in, and pollute wetlands and creeks that lack a continuous surface connection to a WOTUS, a major backstep in managing clean and healthy water in the US.
What does this ruling mean for Montana’s waterways?
As a headwaters state for three transcontinental river systems, including the nation’s longest river, the Missouri, what happens to our waterways can ripple throughout the country. Furthermore, what happens in our headwater creeks and wetlands flows into our mainstem river systems.
This new ruling guts Clean Water Act protections for a majority of Montana’s streams, removing defense from pollution and degrading land use activities. This is especially troubling given 35% and 40% of river miles assessed in the state are already impaired by nutrients and sediments, and without federal protections, water quality will only worsen.
To make matters even worse, Montana law prohibits protections more stringent than federal law, meaning not even our own state laws can provide protections to the waterways that the Supreme Court just removed from the Clean Water Act.
The weakening of our country’s hallmark clean water law is a disservice to all citizens, drinking water, and the health of our waterways and fisheries. This decision will hinder our right to protect fishable, swimmable, drinkable water in Montana. In this time of dire need, Congress needs to restore protections for our country’s vital waterways.