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June 21, 2006

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Supreme Ignorance: Bob Marshall on the erosion of wetlands protection

Two points about Monday’s Supreme Court decision on wetlands protections under the Clean Water Act (CWA):

  1. What else did you expect from this court?
  2. It’s time for members of the so-called Congressional Sportsman’s Caucus to stop running away from the issue.

In case you missed it, The Supremes ruled 5-4 in favor of landowners who claimed the Army Corps of Engineers had over-stepped its regulatory authority when it denied  them permits to drain and develop their property. The developers said that their land was beyond CWA rules because it wasn’t connected to any navigable waters. The corps said that the property was linked by drainages to such waters and was therefore under its authority--a standard that for 30 years has been the bedrock for protecting isolated wetlands vital to fish, wildlife and humans.

The ruling called into question the corps’ interpretation of what congress intended to be protected when it passed the CWA, and remanded the case back to the lower court for further review.  That left environmentalists as well as developers hard pressed to claim either victory or Armageddon.

But if you don’t think this indicates where this court is headed on this issue,  read some of the comments Justice Antonin Scalia penned in writing for the majority. He said the corps had stretched its authority under the CWA “beyond parody” by regulating, among other things, “drainage ditches” and “dry arroyos in the middle of the desert.”

That line exposes Scalia’s knowledge of wetlands as a parody. If he bothered to check a dictionary (Webster’s Unabridged, in this case) he would see that an arroyo is a “watercourse or gulch” that is “usually dry except after heavy rains.” Arroyos fall under CWA rules for the same reason that any other seasonal streams or, for that matter, drainage ditches do: They eventually connect to permanent wetlands, and can determine their quality. Scalia, a professed hunter, should know better.

Congress, of course, can stop the erosion of wetlands protections simply by passing a bill that spells out in clear language what it wants saved. Sportsmen, who overwhelmingly support protecting isolated temporary wetlands, should write their senators and congressmen telling them to speak up and stop letting judges like Scalia to speak for them--especially those senators and congressmen who like to brag about being in the Congressional Sportsman’s Caucus.


Guy Miller

The writer clearly has a skewed, prejudiced view of the issue. They gave this away with their "What else did you expect from this court?" remark. There are at least two sides to every issue and I'm sure the court gave this due consideration. Landowners have rights too. Outdoorsmen have a strong friend in Justice Scalia.

Mike Diehl

Landowners have rights, but they don't include crapping in your neighbor's yard. That's why the CE regulates tributaries, and why they have a say in judging land use proposals when catchments are altered by developers.

I don't see a great friend of outdoorsmen in Scalia.

Mike Burns

What do you expect? The two new members of the Supreme Court, nominated by Big Business lackey, George W. Bush gave the court a majority to make rulings like this. Kiss the wilderness goodbye, this is the age of pave it over, strip mine it, and drill, drill, and drill some more

The Continental Op

Scalia's opinion is simply ludicrous (as usual). With friends like that, outdoorsmen sure don't need enemies.

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