The U.S. Supreme Court is wreaking havoc on America's wetlands, rivers and watersheds, and these waterways need your help. It's not that the nine honorable Justices are out filling our wetlands or dumping toxic waste into our rivers, but their razor-thin decisions in Rapanos and SWANCC are having the same effect. These two decisions have forced the Army Corps of Engineers and the Environmental Protection Agency to undertake a case-by-case analysis of America's waterways to determine if they are worthy of federal protection. Now, only those waterways deemed to be "navigable" or to have a "significant nexus" to a navigable waterway are guaranteed federal protection under the Clean Water Act.
Defining America's waterways this way should force a hard look at where this is leading us: By some estimates, 60 percent of U.S. creeks, rivers, and streams and tens of millions of acres of wetlands and other sensitive waterbodies have lost federal protection in the last few years due to the Supreme Court's decisions. These waterways now are subject to unfettered development, industrial discharges, damage from agricultural withdrawals, and stormwater pollution.
At the heart of the issue are developer and industry interests long intent on undoing the 1972 Clean Water Act's protection of waters of the United States. For decades, these groups filed lawsuits trying to block federal agencies from regulating activities that harm America's waterways. Finally, they prevailed in the narrowest of victories at the nation's highest court (Rapanos was decided 4-1-4; SWANCC 5-4).
For the past several years, the Army Corps and the EPA -- emboldened by the Supreme Court and empowered by the Bush Administration -- embraced industry concerns. Both agencies reclassified waters of the United States at an alarming rate, and in ways that weaken enforcement of clean water laws. An internal EPA memo obtained by Greenpeace last year indicates that from July 2006 through December 2007, the Supreme Court's Rapanos ruling and associated EPA guidance have "negatively affected approximately 500 enforcement cases" at EPA.
Sadly, classifying waterways as to whether they are navigable is not entirely new. For nearly a century, Kansas has taken the classification of waterways to the extreme. Of the more than 10,000 miles of rivers and streams in the state, only three rivers are recognized as commercially navigable and therefore only three rivers -- the Arkansas, Kansas and Missouri rivers -- are recognized as publicly accessible under state law. In 2001, the year the SWANCC decision came down, Kansas led the way by reclassifying roughly 40 percent of its streams to remove federal protections.
What is new is the gusto with which developers and others are using the Court's 2006 Rapanos decision to try to remove waterways from federal protection. For developers, it is no longer a race to the courthouse; it is a race to the nearest wetland -- to fill it.
In New York State alone, thousands of small but hydrologically significant wetlands are now vulnerable without federal or state protection, yet many are of major importance to New York City's drinking water supplies.
In western states like Arizona, upward of 96 percent of all waterways, commonly known as intermittent streams, are at risk.
In Southern California, the battle has taken center stage on the Los Angeles River. Decades ago, the Army Corps paved and, with the assistance of local government, fenced many of the local rivers. Last year the Corps achieved a new low by claiming the Los Angeles River is not a traditional navigable waterway, thus introducing the notion that many of its tributaries -- and possibly much of the river itself -- are not worthy of protection under federal clean water laws.
Under this navigability test, and particularly the Army Corps' interpretation of it, even significant portions of the Colorado River might not be considered navigable. It is not so far fetched. Even Wikipedia entries contend that "commercial navigation on the [Colorado River] is unimportant..." What more of an opening do those intent on undoing the Clean Water Act need to claim the river is non-navigable?
Tragically, unlike the Los Angeles River, the Colorado River no longer flows to a coastal waterway because dams and water mismanagement prevent the river from flowing freely to the sea. Some even call it a "water system" rather than a river. It all begs the question: If the Los Angeles River's tributaries lose protection, are we ready to accept that the Colorado River's tributaries may not have federal protection either?
As my former colleagues at Waterkeeper Alliance regularly point out, the current test just doesn't make sense. As a matter of science, there are virtually no waterways that are hydrologically or ecologically isolated. Water moves underground, forming complex physical, biological, and chemical connections, only to reappear in wetlands and other waterbodies. The destruction or pollution of any part of that system creates a ripple effect, damaging the integrity of the entire ecosystem.
The truth is, whether we talk about prairie ponds or streams, creeks or lakes, America's waterways desperately need federal protection. New EPA Administrator Lisa Jackson already has expressed support for congressional action on the issue. Now Congress -- as the only entity that can untangle the mess created by the Supreme Court -- should make this protection clear by restoring the integrity of the Clean Water Act with passage of S. 787 (Feingold) and reintroduction of H.R. 2421(Oberstar).
You can help by contacting your elected officials in the U.S. Senate. Twenty-four Senators already have co-sponsored the legislation. But many more are needed, and they need to hear in their local District Offices from the American public during this Memorial Week recess. Senators Feinstein (D-CA) , Klobuchar (D-MN), Specter (D-PA), Alexander (R-TN), Baucus (D-MT), and Voinovich (R-OH) are important key votes still needed. These bills must ensure maximum protection allowed by the entire extent of the U.S. Constitution (not merely the Commerce Clause). The bills are supported by a wide range of environmental groups from American Rivers to Ducks Unlimited to EarthJustice to the National Wildlife Federation to NRDC to the Sierra Club. Please go to the Clean Water Network's website to find out more about how to help.
Without strong congressional action and your help to secure it, America's waterways -- navigable or otherwise -- will be in even more serious trouble than they are today.