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Published: Monday, 1/15/2001

The plunder of natural spaces

The U.S. Supreme Court has been up to its usual mischief of undoing federal protections that unify the nation's expectations and benefit all of us.

In this case some 20 percent of the nation's waters - small ponds and wetlands - have been put at risk on the specious ground that Congress didn't specifically put them under federal jurisdiction. Never mind that federal agencies have proceeded as if that were the case for nearly 30 years.

This plunder of natural spaces occurs as a U.S. Fish and Wildlife Service report notes that, thanks to federal laws and conservation programs the court just eviscerated, destruction of marshes, bogs, and other wetlands was cut by 80 percent in the past decade.

From 1986 to 1997, some 644,000 acres of wetlands were lost in the lower 48 states, leaving 105.5 million. From the mid-1970s to the mid-1980s, the loss was 290,000 acres a year and, in the 1950s, 458,000 acres a year.

The conservative 5-4 majority on the nation's highest court has shown itself determined to undo the 1972 Clean Water Act to the extent it has not been fixed by prior Supreme Court affirmations. That must not happen.

The new interpretation limits federal oversight, at least until Congress declares otherwise, of the dredging and filling of isolated ponds and wetlands.

The case in point involved suburban Chicago communities denied Corps of Engineers permission to build a dump at an abandoned sand and gravel pit that had become permanent and seasonal home to migratory waterfowl. The denial was based on a corps rule that extended its jurisdiction over water migratory birds use as habitat.

That's where the court majority balked.

To give the Army Corps of Engineers control of isolated waters like this, Chief Justice William Rehnquist said, would “result in a significant impingement of the states' traditional and primary power over land and water use.” How come nobody noticed until now?

The court majority overlooked the fact that the federal Clean Water Act with uniform standards was enacted because local politicians in the pockets of developers and large agricultural interests cared little about the pillaging of natural resources to which they were beneficiaries.

In a burst of questionable rationale, Justice Rehnquist insisted that Congress had not stated clearly that it wanted isolated waters, including pit and quarry pools, included in the act. That Congress hadn't objected to the rules of the Corps of Engineers did not amount to its acquiescence in them, he said. What a doublespeak dance.

Congress can and must fix this loophole created by the high court. It shouldn't have a hard time given that many GOP supporters have maintained a huge interest in conservation. Democrats must enlist them in this worthy fight, the better to win it.



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