Where pollution is concerned, the notion of defining isolated waters becomes dangerous. Yet, the U.S. Army Corps of Engineers and the Environmental Protection Agency, in an Advance Notice of Proposed Rulemaking related to the Clean Water Act, are slated to begin defining what is and what is not an isolated body of water.
The specious nature of the proposition to apply any such definition revolves around the apparent choice to ignore decades of scientific advances in the understanding of the terrestrial characteristics and hydrology of most watersheds. Where water is concerned, almost every body of it is interrelated with another.
The federal Clean Water Act was passed to afford protection to the "waters of the United States." For many years, the definition of those waters remained unchallenged. In 2001, the U.S. Supreme Court handed down a decision in the case Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers that dealt with the specific question of whether the Clean Water Act was applicable in isolated, intrastate, non-navigable waters used only by migratory birds.
The currently proposed changes in rulemaking revolve around the term "isolated." The difficulty with the law is that it is limited by the construct of the language within which it functions. An isolated pond, to most people, would be a stand-alone concept. Images of walking along a shoreline of a pond with clean, cool and reflective water in some dale on the edge of civilization would not be an inappropriate visual representation for an isolated pond.
Science determines isolation in a relative sense by defining the impact of one system upon another. The law, as the final arbiter on matters disputed, must find the most reasonable balance between the definitions advanced by the competing parties. In the case of the Clean Water Act, the competition is fierce. The stakes are high because the concept of isolation in hydrology is so limited that it is nearly impossible to find a body of water that's truly isolated.
This means that for every body of water that is defined as isolated when it is not, another body of water will be affected when harmful action is taken on or near the "isolated" body.
Consider the case of a tropical salt pond. In many a case, it is not connected to the ocean, which by the standards of the newly proposed rules would make it isolated. It can be dry several months out of the year; therefore, it is non-navigable. And since it is usually located on an island, such as St. Croix, it would most certainly qualify as intrastate.
However, the myth of isolation crumbles when one considers the impact of altering or destroying a salt pond. Salt ponds function as settling ponds for silt and non-point source pollution that flows to them through the watershed. If salt ponds should be eliminated or substantially altered, this silt and pollution would be given a clear path to the reefs and grass beds off shore. Corals and crustaceans would be hard pressed to exist in an environment that was regularly inundated with silt and pollution. The pressure on the bottom end of the food chain would lead to a decline in the species of fish that feed on it. This in turn would lead to pressure on the larger predators that rely on a steady supply of smaller fish for a food source.
The concept of biodiversity means little to the lay person until he or she sits down in a restaurant and discovers that the catch of the day is fresh squirrelfish. Does that seem like an appetizing alternative to snapper? The devastation does not end on the menu, either.
Salt ponds can be home to many smaller creatures such as some species of crabs, which to a bird are a source of nutrition. Migratory flocks could be decimated by the damage done to a salt pond. Traveling sometimes thousands of miles only to arrive on an island with no food or water sources could crush an endangered species. That may not mean much to the locals — until the food source in their summer habitats that fed the birds goes unchecked and endangers the entire ecosystem with overpopulation.
The evidence of the relationships between bodies of water is overwhelming. We ignore these relationships at our own peril. It is time for Congress to restate the spirit of the law in the Clean Water Act by making two important changes. The first reasonable action would be to remove the word "navigable" from the act — since the legislation was not intended solely to ensure navigability — and then to restore the definition of "waters of the United States" as used by the Corps of Engineers for many years without challenge.
To do less could lead to catastrophe.
Editor's note: Source columnist Bill Turner, executive director of the St. Croix Environmental Association, was formerly a teacher and vice principal at the high school level in Puerto Rico.
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