The Supreme Court is hearing arguments in a case that could decide the future of clean water in the U.S.
In this Oct. 3, 2022, file photo, supporters of the Clean Water Act demonstrate outside the Supreme Court in Washington as the court begins arguments in Sackett v. Environmental Protection Agency. Credit: Jacquelyn Martin / AP

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The Rev. Richard Killmer. a retired Presbyterian minister, lives in Yarmouth.

The future of clean water hinges on the U.S. Supreme Court, where an important case will determine what waters in the U.S. will be covered under the Clean Water Act. The case before the Supreme Court involves a property dispute in which Idaho landowners were told in 2007 that they needed a federal permit to build a home and to fill in wetlands on land they owned because it contained regulated wetlands. The case is asking just how closely a wetland must be connected to a larger body of water before it is subject to the Clean Water Act’s prohibitions.

The Clean Water Act, which became law in 1972, prohibits the “discharge of pollutants” into “navigable waters.” It is important to protect wetlands when they have significant physical connections to other regulated bodies of water in order to prevent those bodies of water from becoming polluted.

This case is about one thing: Whether the United States can protect one of our most important natural resources, clean water. The worst polluters, including oil and gas companies, and mining companies, as well as some policymakers, are using this case to limit the Environmental Protection Agency’s ability to protect communities, public health and local water systems from harmful pollution.

The Clean Water Act places limits on the pollution that can be added to a stream, and it requires companies that want to pave over a wetland to get a permit that minimizes and mitigates the resulting harm.

In the first argument of the court’s new term, the three most conservative justices seemed inclined to pare back the government’s capacity to stop pollution, while the court’s three more progressive members appeared to favor an expansive view. Other justices sent mixed signals about how they might rule in the case. 

In arguments that at times focused on when a wetland can be considered “adjacent” to regulated waters, conservative Justice Brett Kavanaugh took issue with the plaintiff’s insistence that this referred to waters that are “touching” rather than “neighboring.”

Kavanaugh described “neighboring” as the “ordinary dictionary definition of adjacent.” When the plaintiff’s lawyer responded that the statute appears to be referring to waters that are touching, Kavanaugh noted that a series of previous administrations, Republican and Democrat alike, supported neighboring and did not require touching. 

“Why did seven straight administrations not agree with you?” he asked the lawyer. 

Chief Justice John Roberts, for example, argued that a train station ordinarily is considered to be “adjacent” to the train tracks, even if those tracks do not literally touch the train station physically. Kavanaugh noted that, in 1977, the Army Corps of Engineers made it clear that a wetland may be “adjacent” to a body of water even if it is separated from that larger body by berms, dunes, or other such features.

In her debut on the bench, Justice Ketanji Brown Jackson, the most recent justice, used several questions to discuss the underlying purpose of the Clean Water Act, which recently turned 50. She raised tough questions with a lawyer for the land owners, who urged the court to narrow the government’s authority over wetlands to extend only to those with a continuous surface connection to U.S. waters.

“You say the question is which wetlands are covered, which I agree with,” she said. “But I guess my question is, why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical and biological integrity of the nation’s waters?”

The whole purpose of the Clean Water Act was to keep the waters of the U.S. clean and safe. Why would they use language which would put up a roadblock to clean water? The Supreme Court will determine how safe our water will be in the future. Our grandchildren’s health and God’s creation will depend on the answer the justices give.