Court challenge could weaken Clean Water Act; Native Nations weigh in to keep it strong

The Fond du Lac Band of Lake Superior Chippewa and 16 other Native Nations have filed an amicus (friend-of-the-court) brief with the U.S. Supreme Court in a case that could weaken the federal Clean Water Act.

The case being contested is small in the grand scheme of things, but the precedent it could set is huge. An adverse ruling would mean “thousands of miles of streams and wetlands—many critical to the Tribes—would lose longstanding Clean Water Act protections,” the Tribes said.

In January, the Supreme Court agreed to hear the case, Sackett v. EPA, in its upcoming session.

The Sacketts bought a vacant lot in 2004 in a residential area near Priest Lake, Idaho. They “filled in about one-half acre … with dirt and rock in preparation for building a house,” an Oyez summary says.

The EPA said their property is in a wetland. By failing to get a permit to fill the wetland, the Sacketts violated the Clean Water Act, the agency said. It ordered the Sacketts to remove the fill and restore the property.

The Sacketts have been in a long-standing dispute with the EPA, arguing the Clean Water Act doesn’t cover their property. Among their reasons is that “their property contains no stream, river, lake, or similar waterbody.”

The Clean Water Act protects “waters of the United States.” The legal question is: What waters does “waters of the United States” cover, and to what extent does it includes wetlands?

The Clean Water Act doesn’t define “waters of the United States,” the U.S. Environmental Protection Agency (EPA) says. Rather, it gives the agency discretion to define them in rules.

The definition of “waters of the United States” has been litigated over the years.

(Narrowing the Clean Water Act’s scope is something “long sought by businesses and home builders,” a Washington Post article said.)

The EPA last revised the “waters of the United States” definition in 2019, where it applied the “significant nexus standard.” That means the Clean Water Act applies to navigable waters and the waters connected to them: “upstream tributaries and adjacent waters, including wetlands.”

The Ninth Circuit of Appeals sided with the EPA in the Sackett’s case.

In agreeing to hear the case, the U.S. Supreme Court said it would focus on whether the Appeals Court applied “the proper test for determining whether wetlands are ‘waters of the United States.'”

The Tribes argue that if the Court limits the Clean Water Act’s reach, it would significantly harm their ability to protect their water.

As sovereign nations, the indigenous tribes of North America rely on the Clean Water Act and have a distinct perspective on the need to protect our nation’s waters. Each of the amici Tribes has a unique cultural, religious, and physical connection to water that is integral to who that Tribe is and how the Tribe’s people have lived their lives since time immemorial. These waters already face threats that would only be exacerbated by a narrowing of Clean Water Act jurisdiction.

Amicus brief filed by 17 Tribes

As one example, it cites how the decision could affect the Fond du Lac Band’s efforts to protect its waters from the proposed NorthMet open-pit sulfide mine, and the water pollution it would generate.

Wetlands cover more than half of Fond du Lac’s reservation, the brief said. The Band also has treaty rights to hunt, fish, and gather outside of the reservation’s boundaries. It depends on clean water on and off the reservation for fish and manoomin (wild rice), its traditional and sacred food.

“NorthMet would excavate headwater bogs and wetlands to construct its mine pit, while also burying additional wetlands under stories-high piles of waste rock and tailings generated by the mine,” the brief said. “Cumulatively, the U.S. Army Corps of Engineers calculated that NorthMet would likely degrade or destroy a total of 7,694 acres of wetlands in the headwaters of the Partridge and ultimately St. Louis Rivers.”

The Band is actively opposing the mine, using the Clean Water Act.

The EPA deemed Fond du Lac a “downstream state.” Based on the Band’s comments, the agency recommended not reissuing NorthMet’s Clean Water Act permits.

Depending on how the Supreme Court rules, it could put many Upper Midwest waters, including wetlands and headwater streams, at risk of losing Clean Water Act protection, the Tribes’ brief said.

The brief provides several other examples, including how an adverse ruling would harm the Pueblo of Laguna’s ability to protect its water in the arid New Mexico climate.

“The Pueblo relies on a vast network of ephemeral and intermittent streams connected to the Rio Puerco,” the brief said.

Many of these waters are threatened by upstream mining and other activities that could pollute or destroy the Pueblo’s scarce waters in the absence of the Clean Water Act. Existing and potential upstream uranium mines and an upstream coal mine discharge water into ephemeral streams that carry contamination downstream to Pueblo waters. The Pueblo actively uses the tools and regulatory structure of the Clean Water Act to protect its diminishing rivers and streams from these discharges.

Amicus brief filed by 17 Tribes

The conservative Pacific Legal Foundation and a group of conservative Congress members have each filed amicus briefs in support of the Sacketts. (Here and here)

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