Recently, I've been thinking a lot about "The Lorax," Dr. Seuss's brilliant and unbelievably forward-thinking book about ecology, pollution, greed, and (ultimately) redemption. You see, my 8-year-old is in his school production of a musical based on the book and, despite my usual distaste for musical theater, I am pleased to report that it is an unqualified triumph. Look for him (as Flippy the Humming-Fish) when the show hits the road following its current run in Arlington, VA.
If you haven't read it, do. I think it's a great gift for any occasion and for anybody. The story is simple: the entrepreneurial Once-ler discovers an unspoiled grove of Truffula trees, a "rippulous pond" full of the aforementioned Humming-Fish, and various other critters cavorting about; the Once-ler chops down the trees to make Thneeds (which, truth be told, sound pretty cool); and the Thneed factory pollutes the air and the pond, driving everything off. In the end, the Once-ler is left in the resulting desolation, and must urge visitors to the place to restore the environment, beginning with one Truffula seed. ("One Little Seed" happens to be the title of the big crescendo number at the end of my kid's play -- it brings down the house. While you're waiting for it to come to your town, you can play an oddly satisfying catch-the-seed game here.)
But the story's a little dated, right? It was written in 1971, before we had most of the landmark environmental laws we have today. The Once-ler couldn't get away with smogging up the air, de-Truffula-ing the landscape, or mucking up the pond today, could it?
As for the last concern, the answer is that the agencies responsible for implementing the Clean Water Act, the Environmental Protection Agency and the Army Corps of Engineers, may well not apply the Act to the pond. This legal limbo arises in large part because of two confused and confusing Supreme Court rulings, but also significantly because the agencies themselves have backed away from protecting aquatic resources in so-called "guidance" documents that they have issued to their field staff. As I discussed in a previous post, countless water bodies around the country -- principally small streams, the wetlands nearby, and geographically "isolated" waters -- are at risk of losing the protection they previously enjoyed under the Clean Water Act.
That means that the Humming-Fishes' pond is almost certainly not protected by the Act, at least as our agencies see it. After all, it's so isolated that Dr. Seuss tells us that the fish will need to "walk on their fins and get woefully weary in search of some water that isn't so smeary." And the fact of the matter is that when projects are proposed today that will discharge into waters that the Corps finds to be "isolated," the local staff are commonly saying that the Clean Water Act doesn't apply. Don't believe (or want to believe) me? Here's a recent decision finding that a 15-acre lake in Colorado, used by residents for waterskiing, is not covered by the Act. A number of other examples are documented in this report.
And even if the fish lived in a small stream rather than a pond, there's no guarantee that the Thneed factory would be subject to the Clean Water Act. A federal appeals court recently reversed criminal convictions under the Act involving pollution of a small, but continuously flowing, creek because it found that the Supreme Court's latest decision requires some showing that a water body has a significant effect on some downstream, "navigable" water in order to protect it under the Act, and that hadn't been done at trial. A picture of the creek is online here.
EPA and the Corps are presently taking comment on their recent "guidance," which -- combined with the Supreme Court's decisions -- is having the effect of denying Clean Water Act protection for many "isolated" waters and even small streams, and which even exacerbates problems caused by the Supreme Court's opinions. You can tell the agencies whether you think it's important to broadly protect waters by submitting a comment here. It's probably too intemperate, or too obscure an allusion for the agencies, but I'm inclined to tell them that anybody who thinks its okay to fail to protect water bodies to the fullest extent the law allows is full of Gluppity-Glupp.