The timing of this weeks Currents feature on vernal pools, small bodies of water that appear briefly in the spring, is poignant, coming as it does only a couple of weeks after the appearance of an article in The New York Times headlined Toxic Waters: Rulings Restrict Clean Water Act, Foiling EPA. The article reports on the vulnerable state of the wetlands and smaller water bodies of the nation, following a couple of Supreme Court decisions that undermined the Environmental Protection Agencys (EPA) ability to protect smaller bodies of waters. The result of those decisions, made in 2001 and 2006, has been that many companies have felt free to ignore the Clean Water Act and proceeded to pollute to their hearts or, more specifically, their pocketbooks content, with the EPA unable to respond without ruinous litigation—and no clear prospect of victory.
The law turns on the meaning of the word navigable, which, prior to the recent court decisions, had been taken to include wetlands not themselves navigable, but connected to bodies of water that are. By construing what is meant by connection more strictly, the recent decisions limit the extent of federal protection. Worse, just exactly how strict the new definition is was left unclear, leaving a lot of room for legal action.
The rationale for the navigable distinction is that very small, isolated bodies of water are supposedly not of interstate significance and so not a matter of federal concern. But the source of the mightiest rivers, their headwaters, is a network of small streams and ponds that includes tiny seasonal bodies of water. This network plays a crucial and irreplaceable role in maintaining the ecological health, drinking quality and runoff behavior of downstream waters like the Mississippi, the Hudson or the Delaware.
The headwaters are by no means a negligible part of our water systems. According to Where Rivers Are Born, a study performed for American Rivers and the Sierra Club, the smallest streams, referred to as first- and second-order streams, represent about three-quarters of the total length of stream and river channels in the United States.
Vernal pools are considered zero-order, a class that includes hollows or gullies that lack permanence or distinct banks but serve as reservoirs or conduits of water during rainstorms and snowmelt. But being of a lower order does not mean less ecological benefit is provided. Indeed, it is, in part, their smallness that makes headwaters in general effective because that smallness supports the intimate exchange between soil and water, which enables the critical services they provide to our water systems as a whole.
These services include recharging groundwater, absorbing storm-water runoff and reducing flooding downstream, trapping sediments, trapping and breaking down pollutants, recycling nutrients and ensuring a healthy environment for downstream river denizens like fish. And these benefits are generally provided to larger downstream bodies of water even when no surface connection is apparent, via groundwater. By the same token, if they become polluted, such small bodies of water can also transmit that pollution to larger streams and rivers via groundwater.
In short, by construing connection in a naïve and, bluntly, ignorant way, the Supreme Court has ignored the services that the lowest-order headwaters provide to the nations riverine systems as a whole.
Some states, including Pennsylvania and New York, do protect various wetlands, including vernal pools, that may not now be protected by the EPA. However, state regulations are limited in impact. For example, the above-cited study says that very small watersheds (some as small as 5.5 acres) can support both permanent and intermittent headwater streams; but Pennsylvania allows waivers for the disturbance of watersheds with drainage areas of 100 acres or less—and even for larger areas, it requires permits but can not necessarily stop a project. And in New York, according to the New York Natural Heritage program, vernal pools seldom meet the size criteria for state-regulated wetland.
The advent of natural gas drilling, an industrial activity that is sure to disturb wide swaths of land with well pads, roads, compressors and pipelines, makes the issue of protecting vulnerable wetlands a matter of pressing concern. We can meet the challenge in several ways. We can take some of the steps suggested in the Currents feature. We can tell our federal legislators to support the Clean Water Restoration Act, which would restore the authority of the EPA prior to the Supreme Court decisions. On a state level, we can push for more rigorous protection of smaller headwaters. And on a municipal level, efforts such as the enactment of buffers and setbacks to mitigate impacts of land development can help preserve the smallest ponds and streams that provide the foundation on which the health and wellbeing of rivers like the Delaware rest.
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In Sandy Longs January 7 article, David Jones portrays himself as a small business owner. He tells of how the gas industry will create good jobs. He says Our farmers are struggling. He has also predicted in the past, that if drilling does not occur, houses will spring up every five acres. Mr. Jones also states: Ive got a lot of land. If I can get revenue from this, I can justify keeping and preserving it. I enjoy my land, but I dont enjoy paying the taxes.