Friday, June 8, 2012

Clean Water - Simple, Well Defined

Shut up - the headwaters are in great shape!
Oh, man.  Trout Unlimited's Chris Hunt and Steve Moyer have gone and done it again.  Both recently blogged on a Congressional action (a House budget amendment) to guarantee that borderline, headwater, and/or seasonal streams and wetlands should not have well-defined protection from filling, draining, or other conversions (wetland-ese for "ruining").  Yup. Read that again.

As such, one whole blogger has taken to the world of social media to decry TU's "special interest" histrionics (too strong a word?) as a scam for fundraising, and a red herring for blanket, purposeless conservation activities.  So let's back up.

For a description of this Congressional action from its own sponsor, Congressman Rehberg, read it from his own press secretary.  In short, Rehberg is proud that his amendment will eliminate from protection all non-navigable waters and wetlands (from the federal definition of "navigable" , further defined by Kaiser Aetna v United States).   Those areas currently are protected on a "case-by-case" basis - which provides some protection - though unpredictable.  Determining exactly how many headwater streams that are of importance to trout and are also truly, legally non-navigable is basically a fool's errand, but surely it's thousands or tens of thousands of headwater reaches.  Their rurality is meaningless - shopping malls aren't the only threat to trout streams.  Once off the map for federal jurisdiction, they are often off the map for state jurisdiction.  That means they can be filled for timber access.  Piped for driveways.  Dammed up for ponds.  From a regulatory perspective, those natural resources just "go away."

TU's folks, not surprisingly, applied a very liberal legal (not politically liberal, although the two intersect here) definition in framing their press releases.  That's what a special interest group does. Go ahead and claim that "liberty," "jobs," "property rights," "economic prosperity" or "the Constitution" are not being used - at this moment - as political tools to literally destroy the environment that we all depend on for food, water, and life.  One blogger will claim that, I'm sure.  And it'll be cute - as it always is.

I have known some truly incompetent regulatory staff
over the last 15 years, but none of them would call this
a regulated stream! 
For comparison, when the EPA attempted a change in Clean Water Act language in 2007 (as one blogger suggested the EPA should try, without researching for 4 seconds that the EPA did, in fact, try it), the US Chamber of Commerce publicly advised that this language change would, "grant EPA unprecedented authority...over all wet areas in a state.....including gutters."  Gutters? C'mon Son. NAHB bluntly stated that the attempt to change the language in the CWA "only adds another layer of bureacracy, " claiming that affordable housing (read: housing for low income groups) would be impacted.  This legal re-write attempt was tried again, and failed, both in 2009 and 2011.

All of that was ignored in the refraining anti-TU kabuki that was typical and predictable.  One sentiment struck me the oddest.

"Who's to say when the water is clean?"

We can argue about "clean water," but without effective,
well-written regulations, it simply will not happen.
OK. Clean water.  While cleaning up our waterways is a complicated legal, financial, and logistical issue in any area, defining "cleaned up" is an effort in simplicity. First, let's turn to the basic legislation that brought us here - the Clean Water Act.  Here's the direct link to 33 USC 1251 - the Federal Water Pollution Control Act ("Clean Water Act of 1972").  And here's how it starts to frame (not define - not yet) clean water in its very first sentence of about 250 pages of language:

"The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."   You see? That quickly and easily, we can start to see how the Act's writers and legislative sponsors framed "clean" - as having "chemical, physical, and biological integrity."

 Immediately below, the Act adds that (paraphrased)
1) discharge of pollutants into navigable waters should be stopped by 1985.
2) water quality good enough to support shellfish, fish, and wildlife should be near-universal by 1983.
3) water quality good enough to swim, surf, and paddle in should be near-universal by 1983.
4) dangerous toxic discharges into waters should be halted

Again - detailed "framing" but no true definition.   I guess if someone was really concerned about this TU scam to declare all but the purest waters "dirty," and thus wanted to know if any real definition for "clean" and "dirty" water really exists (if it's a scam, then none should exist), well, then they could do a basic Google search and come up with the

Before we get started here, the link above makes a point to mention that drinking waters are technically and legally defined elsewhere (here, actually).  Back to work.  40 CFR 130.3 requires that the EPA and each individual state agree on Water Quality Standards.  If only there was one single place to find the WQS for each state.  Oh wait, here it is (first link on a Google search)!   For example, that site linked right to my state's (Maryland's) water quality standards - a long legal document, incorporated into state law, that defines maximum limits on a variety of inorganic and organic pollutants for everything from aquatic life to "frequent full body contact recreation in marine water."   Get the field data.  Pick your sensitive variable (trout, oysters, people), and compare it to the standard.  Your water either passes or fails the standard, and is thus "clean" or "other than clean."  There are other variables that come into play, like "how many days failed per season," but that's in a whole different weed patch than the into which I've already dragged you.

Water quality standards from an irrigation manual -
this is how you define "clean water" for rice growing
There is a ton of data in that report, all incorporated into law, and all able to serve any land developer or other taxpayer who might wish to say in court, "I need to fill a stream for my project.  The area downstream is already clean to federal standards, and will remain clean despite my project, and I'm suing the state over that fact."  That, to me, is a legal dispute worth having, and it would be legally dubious (on both sides) without the Water Quality Standards in place.

Now, that's not nearly the end to the easily-understood definition of "clean water."  If one is interested in what, for example, defines clean water that can "perpetuate and restore brook trout throughout their historic range" (one of the primary goals of the Eastern Brook Trout Joint Venture) there are 150 years of scientific studies on the topic.  I prefer starting with basic tools like the USFWS HSI for Brook Trout - it's a fairly simple model that takes into account many habitat factors, most of which pertain directly or indirectly to water quality.  Another frequently cited work is the 25-year old USFS article tying watershed condition to brook trout abundance.  A close and steady read shows the impact (or lack thereof, in some cases) of a dozen different physical and chemical parameters on brook trout.  There are some interesting nuances in there - now common knowledge - that were apparently quite controversial at the time.  Then there's 1995 RAMAS model, used to identify the impact of man-made watershed and water quality changes to actual brook trout population dynamics (not just abundance of individuals).   And there are thousands more.   Pick another species of wildlife, and the data is there.  Polluted water can impact them in some way, to some extent.  Maybe, in some cases, in such a minor way as to render water pollution a non-issue for the species.

Looks to me like even meager water quality
goals might not ever be met in much of
the historic range of EBT.
So, what is clean water?  Well, like any other conundrum, we need to ask a better question, so we don't make leaps of faith like "brook trout water = clean water." What do we want?  Clean water for brook trout? Clean water for drinking water? Clean water for oysters?  Those are three different questions with three different answers.  In all cases, the answers are already out there.  Published. On the internet.

And if  Trout Unlimited complained, "Well, it could still be cleaner!" after a trout stream met "brook trout standards,"  then I'd be the first to point them out for wasting funds, generating false alarm, and veering away from their organization's mission.   Honestly, is "nothing more important" than good brook trout water, all over the American landscape?  C'mon TU writers, you are really stretching it there.  But I understand the context and the sentiment.

For the most part, Hunt and Moyer make plenty of sense.  Congress refused to allow EPA to redefine the terms of the Clean Water Act in 2007, 2009, and again in 2011.  Now Congress is pecking away at EPA's remaining authority over wetlands and streams.   NAHB, COC, and dozens of other anti-regulatory organizations are involved in the fight.  Why wouldn't anyone want Trout Unlimited to be there?  Why should TU's claims be any less ferocious and over-the-top than the anti-conservationists?

Many have tried, and failed, to explain to me
how this is good for financially sustainable
economic growth through the 21st Century. 

Is a statement like, "Nothing is more important than clean water" a red herring?  As I alluded to in my rant about Pebble Mine, I don't think so, but honestly, it forces the topic to immediately become divisive, which is  helpful to no one (please take note, TU writers).  Such language, I'd argue, doesn't really help us look 100, 200, 300 years into the future and try to assess "what's most important."

What's important about clean water, then? (and back to my Pebble Mine rant) We, as a society, have been destroying our water supply with reckless abandon for 400 years.  Am I sorry that in our lifetime, it must stop? No. I'm proud.  Will I enjoy paying my share (and my prior generations' share) to clean up 400 years of trashed waterways? No. It's going to be expensive. Does it suck that my generation is also the one paying for other assorted industrial, fiscal, and governmental follies of the prior 60 years? Oh yes.  It hurts every payday.  And I'm thankful to have a payday at all (or two or three...but that's another story).

But in  preparing for our nation's long term future, ignoring that our water, air, and soil are our inevitable and essential fuel for food, industry, and basic human life is the thought process of a simpleton.  To state such arguments in the context of "the economy's bad, so we can't clean up the water" - when in fact, these same groups lobbied to avoid paying these cleanup bills when the economy was at its 300+ year peak - is openly disingenuous.

Developers in this area can expect maximum profits
on lot sales!
In 2012, water quality is an essential investment in our nation's future. "Clean water" is well defined, and progress toward clean water goals should be aggressively monitored - as should the expenditures of companies, government agencies, and non-profit organizations who work on such water quality projects.  Waste (time, labor, or money) must not be tolerated.  It's that important, and in a difficult fiscal environment, responsibility and accountability must play a bigger role than they would have 10, 20, 50, or 100 years ago.

But making statements like, "Clean Water is a Fundraising Scam" will get us nothing but a sad note in history - the generation who did nothing to protect our air, water, and soil for future generations (and their industries), in exchange for generating a few jobs in a few industries in a few places for a few years, while the economy largely kept sputtering.   That's some American legacy.

When I retire (God willing), it will have been over 100 years since the
creation of the US Soil Erosion Service, and yet we're still losing soil by the ton.
Perhaps my generation, or the one coming up behind me, will see the end of it.


Chris said...

Noted... And thank you.

Kirk Mantay said...

Happy to oblige! There are real, solid disagreements about clean water (most notably: who should pay?). "Not knowing what clean water is" isn't a intellectually honest standpoint.

Sanders said...

It's funny that all these issues come to a head in an election year...people are more fired up about any issue, and some people are just looking to get fired up about anything. It's ridiculous.

You make a great point, we've been destroying our water for so long, why is it important now? We certainly haven't cared about the legacy we leave to the next. Hopefully "Clean Water" can be defined on an individual basis, but more importantly the language of legislation can do it justice.

Anyway, thanks for swinging by and leaving some great thoughts over on "Up the Poudre", I appreciate it a ton.

Kirk Mantay said...

Sanders, I was happy to read that somebody else was writing about this.

The current economic climate has been a big player in this, but I've been a volunteer (more recently, on staff) for conservation organizations for 20 years and I recall vividly when instead of the current mantra of "the economic climate is too bad to invest in clean water," the same EXACT pro-growth organizations were arguing, "this period of growth is historic. We simply cannot risk de-railing it by adding regulations!"

So when IS the appropriate time to clean up the soil, air, and water, in our growing nation, that sits among a growing international population that looks to us for leadership? I already know the answer to that question, "Well maybe our kids and grandkids can pay for it! Let's keep polluting for now."

Steve Zakur said...

Three quotables:

"Anti-TU Kabuki". That made me laugh out loud. Nice.

" Why should TU's claims be any less ferocious and over-the-top than the anti-conservationists?" Amen, brother.

But the keeper is:

"To state such arguments in the context of "the economy's bad, so we can't clean up the water" - when in fact, these same groups lobbied to avoid paying these cleanup bills when the economy was at its 300+ year peak - is openly disingenuous."

Thanks again for bringing a reasoned voice to the discourse.

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