Love That Dirty Water

No crisis confronting America's fish and wildlife is more pressing and more fixable than the emasculation of the Clean Water Act. In neutering this landmark legislation, the Bush administration twisted two bizarre Supreme Court decisions into enforcement “guidance” that rendered “isolated” wetlands, headwaters, vernal pools, intermittent streams and ephemeral streams—which, together, comprise at least 60 percent of the nation’s waters—unprotected.

The first of the Supreme Court decisions, in 2001, was SWANCC (Solid Waste Agency of Northern Cook County), busted by the Army Corps of Engineers for destroying wetlands in Illinois without a permit. The authority of the Clean Water Act rests with the U.S. Constitution’s Interstate Commerce Clause, which allows the feds to regulate business across state lines. For the interstate connection, the EPA had used the presence of migratory birds simply because it was easy to determine and apply (the “glancing goose test,” as developers, property-rights zealots and other critics like to call it). But there are many other ways the Commerce Clause can be applied. One would be fishing; others: hunting, boating, birding, flooding because it can cause interstate damage; delivery of pollutants because it can cause interstate damage, groundwater flow, even evaporation and precipitation. In the SWANCC case, the court ruled only that the federal government cannot regulate pollution in non-navigable “intrastate” waters (those completely in one state) simply because they provide habitat for migratory birds.

For any executive branch not openly hostile to fish and wildlife, SWANCC would have been meaningless. Instead, with its 2003 guidance document the Bush administration twisted the decision into a tool to unleash polluters on most U.S. waters. Controlling pollution in navigable mainstems but not non-navigable waters that feed mainstems is insane—like giving a free pass to polluters hidden by trees.

Equally insane is the notion that “isolated” waters are somehow unimportant or, for that matter, that a stream, lake or wetland can be “isolated.” Everything’s connected through the ground or by seasonal surface flow. And intermittent and ephemeral streams are often more important to fish than perennial ones. In spring and fall they provide spawning habitat for salmonids and other fish; and in winter they provide fish with refuge from violent currents, silt, road salt and, because these streams often issue from the ground, anchor ice.

In 1969, Jim Martin, now conservation director of Pure Fishing (an entity sired by tackle companies), was a fisheries biologist researching the world-famous summer steelhead population of the Rogue River for the Oregon Department of Fish and Wildlife. He found that they spawned primarily in intermittent streams.

“At that time,” he told me, “developers were diverting and damming these streams, cutting down their riparian forests, building houses next to them, all because they were thought to be inconsequential.”

Later, Martin and his colleagues checked the rest of the state’s stream-spawning salmonids, finding that water that had been dry in summer was packed with fish in winter. With this data, Martin’s department was able to get major restrictions on logging, roading and other watershed development.

The Supreme Court’s 2006 decision—or, rather, indecision—known as Rapanos involved two Michigan developers constrained from building shopping malls on wetlands. Four justices held that enforcement could only happen if a wetland abutted a non-navigable water that feeds a navigable one; four took the opposite view; and one (Anthony Kennedy) opined that there had to be a “significant nexus” between the two. Kennedy didn’t say what he meant by “significant,” leaving that to the Army Corps of Engineers to decide on a case-by-case basis until it hatched specific regulations—a prescription for chaos. Because the other justices were split, Kennedy’s “significant nexus” rule became primary by Supreme Court precedent.

Instead of defining “significant nexus” in its guidance, the Bush administration spewed gobbledygook, further confusing and paralyzing state and federal field agents. The Corps even published a 60-page “significant nexus” guidebook rife with photos of water bodies that supposedly needed to be tested for “significant nexuses” but not offering a hint about which water bodies might have them or why.

The one thing the administration did make clear, however, was its endorsement of a presumed right to pollute, thereby forcing the EPA, Corps and state regulatory agencies to spend time, money and manpower demonstrating harm before shutting down polluters. According to EPA data, Rapanos (and, more importantly, the administration’s decision to use it to suspend enforcement) significantly impeded field agents in 500 Clean Water Act cases in just nine months. And EPA reports that 16,730 facilities with pollution permits (roughly 40 percent of all such facilities) discharge into headwaters, intermittent streams or ephemeral streams that had been protected before Rapanos and the guidance it spawned.