Guest Opinion: Court rulings require water law clarification

After decades of abuse of our nation's waters, dramatized by the Cuyahoga River catching fire in Ohio, a Republican president and a Democratic Congress met the challenge. The Clean Water Act passed by Congress in 1972 is a remarkable example of historic bipartisan efforts by the federal, state, and local governments to renew and refresh this country's water supplies.

For 35 years, the Clean Water Act has done better than anyone could have imagined. Unfortunately, a series of U.S. Supreme Court decisions have dramatically undercut the law and limited its jurisdiction. For Westerners, the stakes are huge, as our semiarid climate and headwaters geology are particularly at risk under the Court's confusing interpretation on what constitutes "waters of the United States."

As a small-business operator whose livelihood is inextricably linked to the health of Montana's rivers and streams, I am directly affected by these disturbing developments. But who in Montana does not value clean waters, our fisheries, our ability to irrigate agriculture, our municipal water supplies? Water despoiled is water lost, and in states like Montana water is far too precious to trifle with.

The crux of the debate

In one section, the 1972 law uses the term "navigable waters." The way in which this term is defined is the crux of the debate at the heart of recent court rulings. Over the 35-year life span of the act, the Environmental Protection Agency and the Army Corps of Engineers has interpreted the waters covered by the statute broadly enough to incorporate ephemeral streams and headwaters so common in this region, as well as vital estuaries and wetlands that are integral to larger hydrologic systems, and it has worked very well. In 2001, 30 years of precedent was undermined by the Supreme Court ruling in Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers. Subsequent Supreme Court rulings in 2003 compounded the problem, adding considerable confusion for regulatory agencies and water users. The court is heading down a path which dramatically circumscribes what will be covered under our federal clean-water laws.

What does it mean? Approximately 53 percent to 59 percent of America's stream miles outside Alaska are seasonal waters or headwaters streams, representing nearly 2 million river miles and contributing to the public drinking water of over 110 million people.

According to Gov. Brian Schweitzer, who presented eloquent testimony in support of legislation to remedy this alarming trend, 71 percent of Montana's total 192,198 stream miles (or 136,461 miles) are intermittent or headwater streams. The governor supported a bill that will clarify for the courts that the way in which the Clean Water Act has been applied over the past 35 years is working and should continue. He went on to state: "If the scope of "waters of the United States were reduced to only those streams that have perennial flow or are traditionally navigable, Montana would lose federal Clean Water Act support over the majority of stream miles in the state."

HR2421 merely clarifies in statute what has been the practice of regulators since the Clean Water Act was passed in 1972, in the wake of a series of court rulings that erode that precedent and practice.

Opponents are melodramatically alleging that it would bring the feds into regulate everything from re-sloping your front lawn to placing a culvert in a driveway ditch (Oct. 20 guest opinion). This is absurd.

Preserve status quo

HR2421 and its companion bill in the Senate, S1870, preserve the status quo for Clean Water Act interpretation and enforcement.

As one who guides people seeking our great fisheries on Montana's rivers and streams, and who neighbors with ranchers, farmers, and cities who also depend on good water, this is vitally important.

I appreciate our governor's leadership on this important issue, and urge you to contact Sens. Baucus and Tester and Rep. Rehberg to urge their support of the Clean Water Authority Restoration Act.

Richard Parks owns a fly shop in Gardiner and serves on the board of directors of the Western Organization of Resource Councils.