Down Upon the Suwannee River

And surviving Clean Water Act provisions aren't being enforced. According to EPA documents obtained under the Freedom of Information Act by the U.S. Public Interest Research Group, nearly 30 percent of the largest municipal, industrial, and federal facilities were in serious violation of pollution permits at least once between January 2000 and March 2001. The response of the Bush administration was to cut the EPA's enforcement budget.

Last December—after intense pressure from the National Chicken Council, the National Turkey Federation, the National Pork Producers Council, the National Cattlemen's Beef Association, and the American Farm Bureau Federation—Bush's EPA hatched a new rule for manure disposal at factory farms. Permits for dumping manure on land, even where it runs into streams, can now be written by the feedlot owner with no public or governmental oversight or review. And, provided the feedlot operator has written a permit for himself, there are no federal consequences for fish kills and other environmental damage.

The Clean Water Act inconveniences coal miners as well as phosphate miners. For example, a four-year-old court interpretation of the law forbids miners' traditional practice of pushing busted-up mountains into valleys, thereby burying headwater streams. It's cheaper to take the mountain from the coal, rather than vice versa, so during the last decade "mountaintop removal," as the public calls it—or "mountain mining," as the industry prefers—has become de rigueur in the coal seams of West Virginia, Kentucky, Tennessee, and Virginia. In addition to mountains and some of the most diverse temperate forests on the planet, the practice has cost America a lot of streams. An EPA study reports 724 miles of stream obliterated by mountaintop mining and an additional 476 miles that were "directly impacted." Mining residue in the form of broken mountains and forests is, of course, waste; but the Corps can't give permits to dump waste into wetlands and streams. Accordingly, the coal industry started calling the rubble "fill" and got fill-dumping permits from the cooperative Corps.

But then on October 20, 1999, U.S. District Judge Charles H. Haden ruled that this was unlawful. "When valley fills are permitted in intermittent and perennial streams, they destroy those stream segments," he wrote in his 49-page order. "The normal flow and gradient of the stream is now buried under millions of cubic yards of excess spoil waste material, an extremely adverse effect. If there are fish, they cannot migrate. If there is any life form that cannot acclimate to life deep in a rubble pile, it is eliminated. No effect on related environmental values is more adverse than obliteration.... Under a valley fill the water quantity of the stream becomes zero. Because there is no stream, there is no water quality."

The solution was immediately clear to the coal industry and the Bush administration. The name change had to become official. So on May 3, 2002, the administration, the Corps, and the EPA finalized a rule that redefined mining waste as fill. Five days later Judge Haden struck it down. "Only Congress can rewrite the Clean Water Act," he wrote. But, if the Bush administration's wetlands rule-making goes through, the headwater streams themselves will be redefined—that is, they won't count as streams under the Clean Water Act—and mining companies can bury them without federal permits.

The notion that isolated wetlands and intermittent and underground streams shouldn't count because they're small is like saying that tree branches shouldn't count because they're small. Cut a few and you may not see any ill effect on the tree; cut a lot, and it dies. If you add up all the "isolated waters" that the Bush administration has stripped of federal protection, it comes to 20 percent of the 105.5 million acres of wetlands that remain in the contiguous states. We started out with 220 million.

Another problem is that these wetlands and streams proceed by gravity into rivers and lakes. Under the Bush administration's new guidelines, a factory pig farm, say, can pipe manure into the source of an otherwise protected municipal water supply. It makes as much sense as pouring yourself a glass of bottled springwater, then dropping in ice chunks pried from the inside of your car's fenders.

It's not just environmentalists who are irate. Pollution permits issued by the EPA are based on pollution loads, so when those loads increase because wetlands and streams are being legally fouled, industries and municipalities are required to spend more on effluent treatment. And, in the process, the river gets no cleaner. Many of the states are angry as well. Among the 133,000 mostly negative letters the EPA received about the guidance and proposed rule-making was the following from John Cooper, who heads the South Dakota Department of Game, Fish and Parks: "The calendar has effectively been rolled back 30 years for some of South Dakota's and the nation's most important wetland resources."

As Cooper went on to note, isolated waters have functions that are different and no less important than larger ones. For example, when floods are raging in the main channel, juvenile fish find refuge in small feeder streams where the current is gentle because they are intermittent. The streams the Corps and EPA write off tend to be fed by groundwater, which remains at more or less the same temperature year-round; so they provide fish with refuge from ice in winter and from warm, deoxygenated water in summer. Amphibians breed in small wetlands because they are isolated from fish, which otherwise would devour them. Only 20 years ago the Animal Welfare Institute was able to report that "amphibians have fared better than other vertebrates." Today few classes of vertebrates are in more desperate trouble. The International Union for the Conservation of Nature and Natural Resources lists 157 species and four subspecies of amphibians as "vulnerable," "endangered," or "critically endangered."

Ben Stout, director of environmental studies at Wheeling (West Virginia) Jesuit University, has found that the headwater streams that mountaintop removers and the Bush administration want to bury, and which both call "dry washes," have greater biodiversity than the waters they feed. At 175 sampling sites, he and his team found all eight orders of aquatic insects they were looking for—in all, 80 groups, including perennial species. "The biological community begins in watersheds as small as six acres," he told me. "The majority of insects we found are leaf shredders; when they shred leaves the particles feed the whole downstream community. And emerging insects export this energy back to the forest in a form that's available to salamanders, frogs, fish, and birds. An intermittent stream is the link between a forest and a river."