I have a special fondness for a picturesque ecosystem called a “vernal pond.” It’s an ecosystem that occurs in several biomes. In the western U.S. it can be found in California’s central valley and the Mojave and Sonoran deserts of the southwest. Vernal ponds usually form in the spring (hence “vernal”) from snow melt or spring rains, and they are ephemeral. No streams feed them, or empty them; they simply evaporate within a few weeks or months once summer arrives. But while vernal ponds exist, they are home to a large and unique collection of plants and animals that flourish, however briefly, in their waters.

One creature that depends upon vernal ponds is a charming amphibian called a spadefoot toad. The spadefoot is a plump, roundish toad only two or three inches from head to tail, who has spurs on its hind legs that enable it to bury itself several feet down in the dirt (going backwards). Spadefoots have adapted to vernal ponds and breed there, depositing eggs that hatch into tadpoles within a day or two, and those tadpoles can complete their metamorphosis into adults within two weeks. The rest of the year, spadefoots disappear, spending 8 to 10 months dug down in the earth, emerging only occasionally to feed. Then, when spring rains come again, they emerge to search for a vernal pond in which to mate.

Vernal ponds are a vanishing ecosystem. Ninety percent of California’s ponds are gone already. The question is: Who might take on the task of protecting these odd, unique ecosystems from extinction? And the plausible answer is: the EPA, because, since the passage of the Clean Water Act (CWA) in 1972, the EPA has been given the task of overseeing and protecting the nation's water resources.

The CWA gave the EPA authority over “the waters of the United States” and, for some fifty years, that phrase would have been taken to include vernal ponds, in addition to marshes and other kinds of streams and runoff-created bodies of water. There was disagreement about exactly what counts as a “water,” but a broad, inclusive meaning prevailed. Then, just this past May, the U.S. Supreme Court, in the case “Sackett v. EPA,” chose to erase any chance that the EPA might give vernal ponds the help they need.

A Mr. and Mrs. Sackett owned property close to Priest Lake, in northern Idaho. They decided to build on it and began dumping sand and gravel to form a foundation for a house. The EPA then informed than that they couldn’t do that because there was protected water on their property. They sued the EPA and the case moved slowly through lower courts, during which time the EPA actually removed its compliance order. Finally, the Supreme Court received the case and created a new test for what kind of “waters” the CWA had authority over. Even though the CWA says that waters “adjacent” to lakes, rivers, tributaries, etc. are subject to EPA control, the new test requires that there be a surface connection between any wetland and a “navigable” body of water, in order to warrant EPA involvement. Any dictionary will tell you, of course, that “adjacent” means “next to” and not “connected to,” but that was the court’s ruling.

One thing going on here is the conservative justices’ hatred of federal regulation. Justice Gorsuch, in a separate, concurring opinion on the decision, lashed out at the CWA, arguing that the original Constitutional text that allowed the federal government (rather than states) to play a role in water policy was the Commerce Clause, yet that clause, he asserted, only granted the federal government

a right to “regulate commerce” that involved ‘navigable” waterways that crossed state lines. For Gorsuch, therefore, this text makes it clear that the Clean Water Act gave the EPA regulatory authority to which it had no constitutional right.

I can’t refrain from noting that Gorsuch -- like other conservatives on the court -- seems to treat passages from our Constitution as though they were etched upon stone tablets from Mt. Sinai. Does he have the same document in front of him that I do? The Constitution that I read is over two-hundred-year-old, had multiple human authors, and was only agreed to at the Constitutional Convention after much dispute, wrangling, and position-shifting. As I recall, the thirteen states attending the convention already belonged to a loosely bound-together union called the Confederacy. Those states were essentially independent republics, with active legislative bodies and relatively weak executive branches. On the whole, they cherished their almost complete control over their respective states’ affairs, and weren’t enthusiastic about yielding that control within a new government structure that contained a more active and autonomous central authority. Moreover, there were numerous specific difficulties that had to be resolved if that new structure were to be approved, such as how to prevent states with small populations from becoming irrelevant, and what to do about the slave population in the southern states.

Though an agreement was eventually reached regarding a new constitution, it was the result of numerous compromises – compromises which, as we now see things, produced a constitution with serious defects. It’s because of our Constitution that the vote of a resident of Montana is worth almost four times that of a resident of California. The Electoral College, which was created as a way to overrule the vote of the people (Trump saw that), has resulted in two of the last four presidents failing to win the popular vote. No wonder the founders made the Constitution subject to amendment, though one must ask: why isn’t the equal rights amendment there?

My take on the Constitution, therefore, is that it got this country off to a good start, did its best to anticipate and guard against future threats to democracy (until Trump), and its text still rings true in many ways, but it’s flawed and antiquated. That’s why it’s irritating that the current Supreme Court acts as though the appropriate response to a quote from the Constitution is a reverent nod and an “Amen.”

No one denies, I should add, that the federal government has gained immensely in power and authority since the Constitution was written, but there’s nothing sinister about that: the American people have asked it to do so. The Clean Water Act makes it clear why. America’s waterways, in 1972, were a catastrophe. The contamination of water resources was widespread; many rivers and lakes all across the country were devoid of life, and cancer-causing contaminants were being found in drinking water. This was truly a “national” problem, and the public recognized that. Nationwide regulation and enforcement were called for and only the U.S. government had the resources and expertise to provide them. Congress, accordingly, passed legislation that empowered the government to take on the task.

I don’t deny that our Constitution continues to provide ethical and political guidance for our country, but it struggles to be relevant to, or supportive of (at least in the hands of the present Supreme Court), our government’s efforts to cope with the challenges of the 21st century.