The Wet Spot in The Backyard
All right, so maybe it’s not in the backyard, but it’s a wet spot and in their mind it’s their wet spot, not the federal government’s. The Supreme Court is set to shake all this out, in case you thought wet spots were trifling matters.
What we (and they) are talking about is the preservation of wetlands and who has or hasn’t the right to make them dry. Most of us think that draining a swamp is a good idea, but the federal position is that wetlands are a part of the commonwealth ecosystem, something that belongs to us all and are protected by the Clean Water Act.
Which was probably a mistake and too broad an interpretation.
What we needed and didn’t get was a wetlands protection statute. But the Court often finds itself in this position, running up and down the sidelines, refereeing a mismatched game. Wetlands and clean water are connected, but the structure the government has chosen to enforce its position relies on interstate commerce and waters that support recreation or shipping.