WETLANDS PLAY AN essential role in a healthy ecosystem, providing habitat for many species of plants and animals, flood protection, water filtration, and a host of other benefits. But a Supreme Court ruling last spring, implemented by the Environmental Protection Agency in August, resulted in the removal of federal protection for much of the nation’s wetlands. The legal issues at stake in the ruling revolved around distinctions between whether waters must have a “significant nexus” or a “continuous surface connection” or be “directly adjacent” to “traditional interstate navigable waters” to be federally protected by the Clean Water Act. But for the judges who threw out these protections, the case wasn’t just about legal hairsplitting. Nor was it just about conservative and libertarian opinions about the primacy of private property, small government, or weakening regulations.
At its heart, the court’s decision pivoted around a theological question: Does water — does God’s creation — have intrinsic value? Is it something to respect and protect for its own sake, and the sake of the ecosystem as a whole? Or is water’s worth found only in its utilitarian value — as a resource for human use, a source of energy or a means of transportation — and therefore subject to sacrifice on the altar of private enterprise and development?
The Supreme Court’s case originated from a suit brought by developers who wanted to fill in a small wetland on their property located a couple hundred feet from Priest Lake in northern Idaho. The EPA had concluded that the wetlands “significantly affect” the ecology of Priest Lake, and thus were protected by the Clean Water Act. The conservative court, apparently ignorant of how water flows (i.e., sometimes underground), ruled that since there wasn’t an apparent surface connection to the “navigable” lake, the CWA didn’t apply, and the developers were free to fill the wetland.
Full disclosure: Priest Lake is one of my favorite places on Earth. From the time I was 7 or 8 years old until a few years ago, my family spent a week every year camping on Kalispell Island in Priest Lake — the island sits a few thousand feet from the developer’s property. Over those years, the water in Priest Lake was so pure that we had no qualms about scooping our drinking water straight from the lake. Fuller disclosure: I live on this planet, and I want waters everywhere to be protected. The court’s shortsighted, dangerous ruling — which the Natural Resources Defense Council called “the most important water-related Supreme Court decision in a generation” — removes federal protection from waters across the country. And since 24 states don’t have their own rules to protect these waters — they rely entirely on the Clean Water Act — a majority of the nation’s wetlands are now under threat.
When Congress passed the Clean Water Act in 1972, the intent was clearly and explicitly to restore and protect clean water. The conservatives on the court — “originalists” only when it suits their ideological agenda — have shown they have no interest in such goals. Thanks to the court, the struggle to protect the integrity of creation has become even more difficult and, if possible, even more essential.
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