I wish we could restore these important protections so the children of my children can also fish brook trout.

Wow. This editorial is legally wrong, factually suspect, filled with hyperbole ("the feculent Ganges" really?), and misleading appeals to authority ("300 [unnamed] groups concerned with water"). If you want the straight dope, read the Court's opinion, or at least the syllabi of those opinions.
http://www.law.cornell.edu/supct/html/04-1034.ZS.html
http://www.law.cornell.edu/supct/html/99-1178.ZS.html

If you do so, you'll learn:
1. The Cuyahoga River is . . . protected by the CWA!
2. Your brooktrout stream is . . . protected by the CWA!
3. All "waters" in either Arizona or Montana . . . already protected by the CWA!

So why, fellow readers, is the sky falling? Because the Court held that "waters of the United States" does not include "channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall."

So water means water, not the plumbing through which water flows (which may, itself be subject to other laws).

As an avid duckhunter, I'm a bit troubled by what impact this might have on the prarie potholes. As a fisherman
I'm not at all concerned, as the current law will continue to protect all "waters of the United States."

Why not expand it? Well, if you do, do it carefully. If not, can any of us feel comfortable filling in ruts in our seasonal roads without an EPA permit? Channeling a spring on our recreational property? Etc.

Be careful with requests for more regulation. You might get them.

bravo Hal! Thank you for the gentle reminder. I'll be sure to pass on.

test

Sorry I took so long to respond- I have not been able to post for some reason.

TM,

I thank you for your comments, and appreciate the reasoned tone you have taken in your second post. Thank you for the links, too. I've read the cases before, but it was good to read them again. I've read the CWRA, and hope you will, too.

I am strongly convinced that, your assurances to the contrary, the Supreme Court decisions in Rapanos and in SWANCC did indeed greatly reduce the scope of the US Clean Water Act of 1972. As I wrote above, I have no problem with the Supreme Court decision. My concern is that the weaknesses of our Clean water Act as it is interpreted in the wake of these decisions, are many and terrible.

You and I both know that "navigable waters" do not exist in isolation. They are comprised of the volume of their tributaries, many of which, in more arid states, are ephemeral and seasonal, and thus now unprotected (note the figures of stream miles I quoted). Aquifers, too, do not exist in isolation. They are recharged by wetlands, by runoff, by potholes, swamps and sloughs, etc. These are no longer protected, as you have noted. As to brook trout streams being protected, well, my personal brook trout stream does not have a "significant nexus" with a navigable waterway, and it is NOT protected by the law. I am sure that you may find West Virginia readers who will argue that their brook trout streams, now buried under tons of mountain-top removal waste, proved not to be protected either.

You interpretation of this issue seems based on the idea that our navigable water resources exist in isolation, and so there is no need for concern, or for more stringent regulations than the ones that already exist. But your optimism is based on the presumption that tributaries either are protected, or that they need not be. Please refer to this case for what is happening since the Court decision: http://www.bizjournals.com/birmingham/stories/2009/12/14/daily36.html
Note that McWane Industries did settle the case and pay the fines, but the arguments presented in the case demonstrate that the protection of
non-navigable streams in the US is far from assured. I have a personal stake in that one- I sometimes fish the Locust Fk of the Black Warrior River, of which Village Creek is a non-navigable tributary.

I share your healthy suspicion of federal regulations and their intrusion on individual liberty and private property rights (the two things are inextricably joined). What I ask of a limited federal gov't- or a state gov't, if the state will indeed pick up the ball- is to accomplish the tasks that the individual cannot. Military defense and environmental protection are two of these tasks that come to mind first. Protection of water resources would be among the most crucial. As you mentioned in your other post (on Kirk Deeter's blog) today, we have come a long way in limiting the externalities that were once the norm- a company doesn't want to pay for disposing of its effluents, so it just puts them in the creek for us to live with- etc. I support the CWRA because I don't want to reverse that progress.

And by the way, my use of the adjective "feculent" to describe the Ganges is not hyperbole. I Do not think that anyone alive could argue that the Ganges is not "feculent." Just a quick internet search:

"Nearly 89 million litres of sewage is daily disposed into Ganga from the 12 municipal towns that fall along its route till Haridwar. The amount of sewage disposed into the river increases during the Char Dham Yatra season when nearly 15 lakh (1.5 million) pilgrims visit the state between May and October each year."
from http://en.wikipedia.org/wiki/Pollution_of_the_Ganges

We got a real good thing going here in the US, TM. The Clean Water Act, as it was interpreted before the Court rulings, was a bigger part of that than most people realize, or have ever had to realize. I'm not afraid that some gov't pencil-pusher is going to come to my place and write me up for grading out the puddles in my road. But I'd hate to see us lose what our parents fought for, because somebody with a vested interest in the ability to destroy and pollute convinces us that there's a pencil-pusher out there, just waiting for his chance to attack. Feculence is out there. It's real. It's the norm for a billion or so folks in other countries. Not here, I say.

You gotta love it. It works every time. Hal posts about some conservation issue (aka hippie commie crap) important to us, and some genius always has to come and call it out in a ridiculous manner.

The BS that common men with nothing to gain from it are willing to spread in the name of industrial waste dumpage amazes me every time.

Sheep voting for wolves.

Chickens voting for the colonel.

Great post Hal. It seems some hunters and anglers don't care for clean water-or maybe they just don't care about anything. Serve them up a full glass of free market mercury laden water and they might start to care, but probably not. Here's a scary piece of news from Uintah county Utah where the county gov.(local mind you) have been thawing frozen culverts with oil and gas wastewater that contains hydrocarbons and who knows what else for possibly thirty years!

http://www.ubstandard.com/stories/Use-of-oil-field-water-in-ditches-inve...

I agree with your premise that the CWA is ineffective. If the CWA were effective we wouldn't be dealing with mercury contaminated streams and lakes across the country. The environment belongs to all its' inhabitants-and when a company pollutes a stream, they pollute me and they pollute you. Bring on the regulations. My health and the health of the planet trumps your personal property rights. Polluting the planet is not a personal liberty-it's a crime, it's immoral, and if you're a christian it's a sin.

All too often the development that destroys habitat becomes financially unsustainable, leaving the bill for the cleanup or restoration or whatever you want to call it to the taxpayer. The CEO of that company retires rich and working folk pick up the tab, into perpetuity. And conservatives or usually FOR this?

I work in the waste/water treatment industry and our discharge requirements are put in place and closely monitored by the Ohio EPA. Through proper treatment of this stream and the discharges going into it we have brought it back to some of the purest water. A rare breed of darter fish has even appeared back into this waterway. So try to relax. Our national waterways and wetlands are cleaner now than they have been since the industrial revolution. However there is still work to do and that does not mean we don't need to pay attention to this important issue, just don't need to get worked up over filling in an old gravel pit.

Thanks for the comments here, everybody.

TM, I wish I could share your optimism. The McWane case is, I believe a warning shot across all of our bows- at least all of us who know or care about what is at stake. Please take a look at those arguments. I still fail to understand your contention that mainstem waters are protected even though the waters that make them up are not.

I understand that the CWRA worries some farmers and ranchers. I've been involved in, or been around, farming and ranching since I was eleven years old, and I've seen a whole lot of practices related to water that should have been gotten rid of a long time ago. I much, much prefer an incentive-based method of solving these problems rather than a federal law - I firmly believe in the carrot, and not the stick- but somewhere there has to be a stick. I wish it was not so, but human nature has always proved otherwise. I am seeing big advances in stormwater control in some places- federal policies can help, with tax incentives and programs like WRP expanded, or just fully funded. I'd like to see property tax relief for land in floodplains, and reform of the federal Flood insurance program to lift the incentives for developing in flood prone areas.

In an ideal world,we wouldn't need the CWRA. Human beings would not pour their sewage in rivers, or boiler grease in the little tributary creeks. They wouldn't fill in the wetlands and displace floodwaters onto their neighbors, or grade the prairie potholes to get a few more rows of crops in, and let somebody else worry about the dang ducks and frogs.

To tonyb123,
Part of what was most interesting about the Court's SWANCC decision was that most people would agree with you that the gravel pit that the waste company wanted to fill was not that big of a deal. When the company found out it was protected because it was sometimes used by migratory waterfowl, they, rightly in my opinion, decided that the CWA never said anything about that. And they went to court, and won.
But the decision threw into question NOT just some old gravel pits, about which noone really needed to get worked up. It threw into question all isolated waters. And that is something, if not to get worked about, well, that needs to be fixed.

I've noticed something strange. Liberals love to talk about how us more traditional people believe in American Exceptionalism, and how stupid and jingoistic that makes us. They talk about how America is not really, quantifiably, any better than other countries. Which is absurd. Whenever I have to talk with these folks, I always point out, among other things, our visionary environmental laws, democratically produced decisions that have improved our air and water and lives, restored our rivers and wildlife, and how these laws serve all the people, not just the wealthy or the privileged. To me, these laws show us at our best- that's why I mentioned China, India, Mexico, above.

But there's another kind of American Exceptionalism that I see more and more(and liberals have this kind too, with their contempt for liberty) - this American Exceptionalism is a belief that we can act just as stupidly as other countries, that we don't need, for example,the same strong clean water act that has produced such good results so far. We can do it here just like they do it in Mexico, or China, and heck, it's the US, it'll still be okay. Our rivers will never be like the Ganges. Why not? Just because.

That's a bit delusional, no?

We have indeed been exceptional. I'd like to see it continue.

Your point is tough to argue with, Mr. Pileated.

What has me worried is all the hazardous waste deep well injection that is going on all over the country. yes it's a convenient way to hide/dump hazardous waste, but how safe is pumping tons and tons of hazardous waste in the earth? What's going to happen when earth quakes expose these to our water table and aquifers? Gas and oil companies fill these wells with hazardous waste. Then find a natural gas reservoir and start fracking the area. What does this fracking do to these hazardous waste deep well injection sites? Aquifiers, who needs em anyhow?

Our biggest problem is that we never consider the consequences of our actions before we go forward. How about a little research? Maybe, you know, just think it over for a minute.

We see dollar signs and get all excited and just do it, then deal with the problems later. That's what little children and frogs do.

Only fools rush in.

Does everything have to be so political? Can't we just protect our waters cause it is the right thing to do? I don't have to cheerlead for either party to say that I want my states waters to be clean and free of pollutants. No one wants unnecessary regulation, but we do need some rules governing our land. No rule of law leads to anarchy. They have this in the Sudan, and that ain't what my idea of America is.