The Little River That Could

Update: April 28, 2011.  In case this post gets some traffic by virtue of being linked to in the Washington Post story today, I hope it helps explain a bit about what kinds of aquatic resources are in jeopardy of not being protected by the Clean Water Act.  The prospect for protecting them got better yesterday, when EPA and the Army Corps released proposed guidelines for applying the law.  I talk about that action in a post from yesterday

When I was a kid, even though I lived only a couple of miles from the ocean, the most important water body I could imagine was The River.  Hardly even a stream, The River was located beyond The Pit in The Field behind my house (my friends and I were obviously uncreative with names), and it marked the outer boundary of my freedom to roam alone.

I expect that you can think of a similar spot -- a small pond, a brook, a marsh.  A place where you can fish, skip stones, splash around, or plan assaults on enemy encampments.  (Mind you, I had a highly decorated pretend military career.)

Even back then, I probably could've told you that The River was part of a larger system of water bodies and that all of them were valuable and worth protecting, even ones that you couldn't float a boat on.  Lucky for me, in 1972 -- a few years before I started exploring The River -- Congress passed the Clean Water Act, guaranteeing that all of the Nation's waters would be protected from unregulated pollution discharges.

Incredibly, today -- nearly 35 years since Congress acted, there is significant uncertainty about what water bodies the Clean Water Act can protect.  Two recent Supreme Court decisions have placed numerous water bodies in legal limbo, especially waters that are geographically "isolated" from others or ones that lack permanent flow.  In large part, these decisions were based on Congress's use of the term "navigable waters" in the law, but ignored Congressional intent to get away from the limits of navigability in 1972 when it defined "navigable waters" broadly to include "the waters of the United States."

A few examples might help illustrate the problems the Court has unleashed.

The first photo below is a pool I saw recently while hiking in an Oregon state park.  This spot is uphill and over a ridge from the Columbia River (second photo), an indisputably navigable water body.

photo of pool near Columbia River, in Oregon.

photo of Columbia River, Oregon

Nevertheless, because the pool doesn't have a surface water connection (at least one I could see at that time), it might be considered "isolated" and be at risk of being declared unprotected.  That doesn't mean it's unimportant; it could help recharge groundwater, or serve as critical habitat for aquatic organisms.  And this is hardly an isolated (ugh, clean water pun) example: based on government estimates, roughly 20 percent of the more than 100 million acres of wetlands in the continental U.S. are considered "isolated."

Similarly, even though federal Clean Water Act rules have long protected wetlands that neighbor all tributaries to protected water bodies, that's no longer a sure bet.  Depending on whose interptetation of the latest Supreme Court case you follow, wetlands near non-navigable tributaries could lose protections unless it could be shown -- through a resource- and time-consuming process -- that they have a significant relationship to some downstream actually navigable water.  That means that wetlands like the one below may lose Clean Water Act protections the law has historically afforded them.

photo of a wetland area in Pennsylvania

The area above is less than 100 yards from the West Branch of Perkiomen Creek (pictured below), which flows through a friend's farm in Berks County, Pennsylvania on its way to joining the Schuykill River (an old-fashioned navigable water).  He tells me that the creek floods across the pasture to the wetland periodically, and the entire area is rich in wildlife.  On our last visit, I saw flycatchers, a Great Blue Heron, a group of Cedar Waxwings, wild turkeys, and an enormous owl I was too slow to identify.  The stream, though not fit for boating at this spot, also has substantial fish life and other critters, provides water to my buddy's cattle, and otherwise is a grand spot to splash around.

photo of the West Branch of Perkiomen Creek, in Pennsylvania

photo of kids in West Branch of Perkiomen Creek

photo of my son, fishing the West Branch of Perkiomen Creek

In other words, this is an important creek, and although wetlands near streams surely provide significant ecological functions for the creeks they neighbor, guaranteeing that the wetland will be protected by the Clean Water Act will likely require an ambiguous evaluation of a number of factors -- water flow, the movement of pollutants to and from the creek, biological connections between the water bodies -- in order to assess whether the wetland and others like it are important enough to some downstream navigable water.

As a final example, the channel pictured below leads directly to Four Mile Run, a tributary to the Potomac River that flows through my neighborhood in Arlington, Virginia.  (That's Four Mile Run in the foreground.)  Thanks to the Supreme Court's muddy rulings and unhelpful "guidance" from federal agencies, it is far from clear that this feature is protected by the Clean Water Act, even though discharging pollution into such channels or filling them in altogether would have obvious impacts on water quality in the stream.

photo of channel leading to Four Mile Run, a tributary of the Potomac River

The current state of affairs is just goofy.  Even if you had a Clean Water Act attorney and a professional hydrologist in tow, it's fairly likely that you won't be able to determine whether your local non-navigable water body is covered by the law by visiting it.

Thankfully, there's a bill in Congress -- the Clean Water Restoration Act -- that will get the goofy out of the law.  It will simply specify that the various water bodies that had historically been protected by the law will remain so, and get rid of the nettlesome references to navigability.  Lots of folks support the effort, including hunters, conservation-minded Republicans, and governors of Western states.  I'm also really happy that Congressman Oberstar, who represents a city I once called home -- Duluth, MN -- is the lead sponsor of the bill. 

In fact, with the broad support the bill has received, my various hometowns have been well-served; members representing Braintree and Marshfield, MA (Congressmen Lynch and Delahunt), Brunswick, ME (Congressman Allen), Washington, DC (Congresswoman Norton), Atlanta, GA (Congressman Lewis), and Arlington, VA (Congressman Moran) are sponsors of the bill.  Only Congressman Walberg (Battle Creek, MI) and Congressman Forbes (Fort Lee, VA) stand between me and a perfect record!  I hope they, and other members, stand up for clean water, so that my kids can count on finding a River of their own.

P.S.: If you've read this far and you're still with me, I'd love to hear about the water bodies in your neck of the woods.  Do you have a small pond or wetland that is no good for boating, but great for other stuff?  Is there a creek that's often dry but flows like nobody's business when it rains?  Please tell me, and if you've got pictures up on the web somewhere please include links -- trust me, I'm a nerd, I'll love it. 

About the Authors

Jon Devine

Senior Attorney, Water program

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