Wednesday, March 22, 2017

Ducks Galore on the Assabet

With yesterday being the first full day of spring, and after enduring almost two weeks of killjoy weather, I needed to get out on the water and find some spring.  Thankfully access to the Assabet River (including a plowed out parking area) was available at Magazu's Landing in Stow. 

Despite having heard a forecast calling for sunny skies only low-hanging clouds and a napping mute swan were found...
 ...until the promised blue skies materialized later near Crow Island (opening photo).

After launching and rounding the first bend a hooded merganser and wood duck were encountered...
Apparently yesterday the Assabet River in Stow was 'the place to be' for ducks of many persuasions.

Around the third bend an immature eagle took flight...
...while across the river one of its relatives watched...

Not sure if they were interested in the numerous ducks or perhaps the many musquash that were out and about...

Heard the call of a red-winged blackbird and then spotted my first of the season...

Made a short foray up Fort Meadow Brook to its beaver dam...

Then it was back to the Assabet and upriver passage to Gleasondale.
 
The variety of ducks encountered along the way included this hooded merganser...

...wood ducks and mallards...

...an 'alterative facts' female wood duck...

...and a bufflehead...

At the end of the day the award for best 'Spring Splendor' went to this fellow...

Trash gathered up seemed to reflect some poor soul's very bad day...

Thursday, March 9, 2017

Afloat in the Assabet

Visited the Assabet in Stow yesterday and enjoyed some fine early spring paddling conditions.  Only a short distance upriver from Magazu's Landing I heard the unmistakable call of a red-winged blackbird for the first time this year.  Last year I heard my first on March 6th.

This mink patrolled a beaver lodge and seemed quite curious...

A short foray was made into and up Fort Meadow Brook to the old railroad trestle (opening photo).

Ascending the Assabet further upriver to Gleasondale was possible again, thanks to someone's good work in having cut out a section of a fallen tree...
That section of tree blocked upriver passage back on 1/15/17.

A fair amount of trash was encountered along the way...

One interesting find was a floating half-pint bottle embossed with a man's face, a house, a factory, barley, and several script signatures.  Thanks to the internet, I'd later discover the bottle dated from 1937 and once contained Wilken Family Blended Whiskey made in Schenley, PA...
Sounds like it was highly regarded whiskey.  Wonder what old Mr. Wilken would think of his image surviving in a Massachusetts river all these many years.

Sunday, March 5, 2017

A Defining Moment

For the past 45 years the navigable waters of the United States have been protected from pollution by a 1972 law known as the Clean Water Act (CWA).  One result of this act was the creation of a National Pollution Discharge Elimination System (NPDES) which requires anyone discharging pollutants into our nation's waters to obtain and comply with a NPDES permit.  Many of today's wastewater treatment facilities came into being as a result of the CWA, and our nation's waters are all the better for it.  As someone who worked at facilities having such a permit, I can attest to the discharge point seeming a long way from what most would consider "navigable waters".  However there was never any doubt as to where the discharged waters ultimately ended up.

Until the other day, I've always considered the CWA to be a nobrainer.  However, on February 28th, President Trump issued an executive order entitled Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule.  The order instructs the two government agencies responsible for protecting our nation's waters from pollution (Environmental Protection Agency and Army Corps of Engineers) to review the definition of "waters of the United States".  It further instructs them to "consider interpreting the term "navigable waters'" as defined in 33 U.S.C. 1362 (7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United Sates, 547 U.S. 715 (2006).

Upon seeing this order instructing that from this day forward one man's specific interpretation of the term "navigable waters" should now serve to define "the waters of the United States", I was intrigued.  So intrigued that I'd spend the majority of a weekend (too cold for paddling) wading through the weeds so to speak expecting to find a settled issue...instead I found just the opposite.

Back in 2006 a case came before the Supreme Court of the United States.  It originated from an incident in Michigan where a man (Rapanos) had, without a permit, filled wetlands he wanted to develop.  The Army Corps of Engineers held the wetlands were protected under the CWA while lawyers for Rapanos held that the wetlands were not protected under the CWA.  After reviewing the case the Supreme Court issued three different opinions and remanded the case back to the lower courts. 

The opinion of Justice Scalia held that the wetlands in question were not protected by the CWA because: "In sum, on its only plausible interpretation, the phrase "the waters of the United States" includes only those relatively permanent, standing or continuously flowing bodies of water "forming geographic features" that are described in ordinary parlance as "streams[,]...oceans, rivers, [and] lakes." See Webster's Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall."

Three justices, Roberts, Thomas, and Alito agreed with Scalia's above definition.  Four justices, Stevens, Souter, Ginsburg, and Breyer signed a differing opinion holding that the wetlands were protected by the CWA.

The remaining justice, Kennedy (remember when we used to have nine?),  offered a third opinion in which he held that the wetlands would be protected by the CWA if it could be demonstrated they possessed a "significant nexus" to a navigable waterway.  Therefore he agreed with Scalia in remanding the case back to the lower courts, but not in his definition of "the waters of the United States". 

So, there you have it.  Nine of this country's top jurists were asked to define "the waters of the United States".  Three justices agreed with Scalia's definition while five justices did not.  Since when does the opinion of four justices outweigh the opinion of five?  Is this the new reality we live in?

So, if given the responsibility of protecting the waters of the United States, where would I draw the line at which point protection should end?  Where would you draw it?

I agree with Justice Kennedy that a wetlands having significant nexus to a navigable waterway should be protected by the CWA.  Believe it or not, wetlands scientists are fully capable of determining if there's significant nexus.

Of course we could always ask this guy to show us the connection...