How Protected Are U.S. Waterways?

by Hal Herring

Few hunters and fishermen that I talk with these days are aware that the United States no longer has an effective Clean Water Act. We go along, hunting the ducks and geese, fishing the rivers, drinking the water from our faucets at home, and swimming with our children, content in the knowledge that our country would never allow something like the seething stink of China's once mighty Yangtze River, or the feculent Ganges of India, or the brazenly-poisoned industrial effluent rivers of our neighbors in Mexico.

And we go along in the happy, contented ignorance of small children who never question where the groceries come from, or why the house is warm and dry. It just is.

Until it isn't.

It all started with two challenges to the Clean Water Act, one, in 2001, from a solid waste disposal company in Illinois that wanted to fill in some old sand and gravel mining pits, and another, in 2006, from a Michigan real estate developer named John Rapanos who filled wetlands to build a shopping mall. Both challenges went all the way to the US Supreme Court, and in both cases, the Court decided that the Clean Water Act, which had been assumed to protect almost any waterway, actually protected only the "navigable waters of the United States," waters large enough to provide for the transportation of people or goods. In the wake of those decisions, thousands of miles of tributary creeks, springs and isolated wetlands that create those navigable waters - and provide much of the drinking water for the nation- are left unprotected. So are the prairie potholes and lakes that are the major nurseries for waterfowl. The Supreme Court, of course, did not say that those waters should not be protected- it simply ruled that, as the law was written, it did not protect them.

Many Americans who were following the court cases assumed that the ball, so to speak, had been passed down to its rightful owners, the individual states. Surely the states, recognizing what was at stake, would rush to protect these waters. (For just a glimpse at the stakes: it is estimated that 117 million Americans depend on these now-unprotected creeks and rivers for their drinking water. 96% of all waters in Arizona are no longer protected. 80% of Montana's waters east of the Divide, and 30% west are unprotected, including all of the spawning creeks and nursery streams that are, of course, too small to be 'navigable." As for wetlands, Ducks Unlimited estimates that about one fifth of all remaining wetlands in the US- 20 million acres, have lost legal protection.)

But the states have not picked up that ball.

The answer, supported by more than 300 groups concerned with water resources, from farmers to surfers to commercial and recreational fishermen, is a federal law called the Clean Water Restoration Act, which was carefully written to restore the protections that the nation has benefitted from in the original Clean Water Act for all these years. But the Clean Water Restoration Act has stalled in Congress, blocked by powerful political forces that work on behalf of those who would profit from having our water laws be more like those of China, or India, or Mexico. Opponents of the CWRA range from timber and chemical industry lobbies to land developers and some farm and ranch groups, to private property rights advocates who say that protecting water supplies is not the business of government.

A prominent opponent of the new Clean Water Act is television personality Glenn Beck, who devoted a part of his show to lambasting the proposed law (see the clip here) and warning viewers of the new powers claimed under the law for the federal government. Advocates of the Clean Water Restoration Act say that the new law has been carefully drafted to simply reaffirm the intentions of the original Clean Water Act, and not to extend its powers.

My take on the issue is this: I've read the Clean Water Restoration Act and I feel strongly that it is the best we can do to make sure that we don't have to lose all that we have gained under the original 1972 Clean Water Act, which was signed into law by Republican President Richard Nixon, and supported by an overwhelming majority of Americans who had watched what happens when waters are not protected. These are men and women who saw a vast mat of industrial waste and trash on Ohio's Cuyahoga River catch fire and burn into the night of June 22nd, 1969. Hunters who watched the wholesale draining of prairie potholes and the loss of waterfowl, fishermen who saw trout streams turned into sewers, or who caught ulcerated and stinking fish from rivers that once flowed clear and bountiful. The least we can do, as fishermen and hunters now, as perhaps the last people who really know what is at stake, is support the Clean Water Restoration Act, so we don't have to go through this whole expensive, wasteful disaster- from human health concerns to loss of wildlife, to flooding and the expense of new water treatment plants, and on and on, yet again.