Upstream And Out of Mind

Scat, as the biologists call it and the bumper stickers proclaim, happens. Often it floats, as the Enron employees observe. And always it travels downstream, as the Bush Administration seems not to comprehend. Since assuming power, President Bush and his people have dedicated themselves to eviscerating the Clean Water Act, most effectively by removing protection for headwater wetlands and streams—the 20 percent of America's waterways occurring wholly within a state's boundaries (intrastate) and classified as isolated and non-navigable.

On January 10, 2003 the Army Corps of Engineers and the Environmental Protection Agency (EPA) issued what they called "guidance" on how their field agents should enforce the Clean Water Act. The word was to desist from going after polluters or fillers in "isolated waters that are both intrastate and non-navigable, where the basis for asserting jurisdiction is irrigation, the Endangered Species Act, or any part of the 'Migratory Bird Rule' " (more on this presently). Then it created a nebula of gray and ordered agents to seek "formal project-specific headquarters approval" prior to enforcement. The directive required no public comment or environmental review, and it became effective the following week. It wasn't "guidance" at all, but obfuscation that created an infinite number of questions along with the impression that each must be answered by an agent's superior who must then consult his superior, ad infinitum. Much easier not to enforce, and that was the strategy.

Along with the guidance document the Corps and EPA issued an "Advanced Notice of Proposed Rulemaking," supposedly seeking public input on how best to redefine the word "isolated" and suggesting that, after 31 years, certain isolated waters may no longer require protection under the Clean Water Act. They also threw in a sentence asking about other ways they might make the law more palatable to those who find it bothersome: "Additionally, we invite your views as to whether any other revisions are needed to the existing regulations on which waters are jurisdictional under the Clean Water Act."Along with the guidance document the Corps and EPA issued an "Advanced Notice of Proposed Rulemaking," supposedly seeking public input on how best to redefine the word "isolated" and suggesting that, after 31 years, certain isolated waters may no longer require protection under the Clean Water Act. They also threw in a sentence asking about other ways they might make the law more palatable to those who find it bothersome: "Additionally, we invite your views as to whether any other revisions are needed to the existing regulations on which waters are jurisdictional under the Clean Water Act."

The excuse for radically changing the methods by which the Clean Water Act is enforced was a January 9, 2001 finding by the US Supreme Court that strikes down traditional protection by EPA and the Corps of intrastate, non-navigable waters (in this case water-filled gravel pits in Illinois) based solely on their use by migratory birds. As disappointing as the decision was for environmentalists and sportsmen, its legal application was extremely narrow. While such wetlands are no longer safe just because they're used by waterfowl, they can be protected for all sorts of other reasons—if they are used for recreation, for example.

Where the Supremes had cracked a window, the Bush administration broke down the side of the house. "They've been very sly here," declares Julie Sibbing, wetlands policy specialist for the National Wildlife Federation. "They've skewed what the courts have been saying. In fact, their own Justice Department disagrees with them. Justice has done an outstanding job of arguing this issue, appealing the three cases that have clearly found for a broader interpretation [i.e., the interpretation promoted by the White House]. Twelve cases have found for the narrower interpretation, and Justice is vigorously defending the ones that are being appealed by developers." The guidance was not written by any of Justice's practicing attorneys but by Jeff Clark, an acolyte of US Attorney General John Ashcroft.

The way the Administration has bent the Supreme Court's ruling to exempt biologically important streams from the Clean Water Act infuriates attorney Charles Gauvin, president of Trout Unlimited. "Nothing in the opinion limited Clean Water Act jurisdiction over tributaries of navigable waters or wetlands adjacent to those tributaries," he observes. "EPA and the U.S. Army Corps of Engineers have applied the act to such waters since passage with no controversy, and with no complaints or statutory amendments from Congress."

If the Bush Administration gets its way, no federal law will prevent, say, a factory pig farm from piping effluent into a headwater trout stream or building sewage lagoons in wetlands that previously had stored, cooled and purified runoff while recharging aquifers. The notion that pollution should be controlled in mainstems but not tributaries is insane—the equivalent of filling a country-club swimming pool with gray water from the same showers members are required to use before swimming. What's more, small streams are in many ways more important to fish and wildlife than large ones.

Jim Martin, former fisheries chief for the Oregon Department of Fish and Wildlife and now conservation director of Pure Fishing (an entity sired by tackle companies), offers this insight: "A lot of people look at a river the way they look at a tree. The most impressive part of a tree is the trunk, but the leaves are where the biological action happens. It's the same with small headwater streams, but people figure they're inconsequential.

One of my first projects back in 1969 was to research the summer steelhead of the Rogue River, one of the most famous runs in the world. What we found was that they'd spawn primarily in intermittent streams. They'd move into them for refuge when they got watered up during winter rains and the mainstems were raging. At that time the 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. As a result of our research we were able to get more protection for those streams. With all our salmonids, particularly coastal cutthroats, we did presence or absence and distribution studies in the summer--a huge deal in making land-use decisions. When we went back in the winter we found that these fish radiated upstream. A lot of intermittent streams that looked insignificant in summer would become major rearing and spawning habitat in winter. This led to major restrictions on logging, road building and other development."

When water comes out of the ground and forms a channel you have a first-order stream. When two such streams converge you have a second-order stream. Two second-order streams make a third-order stream, and so on. There are eight ninth-order streams in the United States. There is one tenth-order stream--the Mississippi. On the other hand, there are 1,570,000 first-order streams, and 86 percent of all river miles in the continental US are composed of first- through third-order streams—streams that could be considered headwaters.