Navigable waters

In a recent post by Kate at the CBC Election Roundtable, Conservative candidate Brad Farquhar comes across as a strong contender for what has been the outpost Liberal seat in Saskatchewan (Wascana; incumbent Ralph Goodale, Finance Minister). He seems to have a good sense of the issues that are most important to the constituents. Unfortunately, I think he is correct when he says:

People in Saskatchewan . . . . particularly scoff at the idea of Fisheries and Oceans having jurisdiction over some drainage ditch just because a canoe could navigate it for two days each spring.

On the face of it, yes, it's scoffable. However, I have no problem with a department called Fisheries having jurisdiction over a creek that is vital spawning habitat for the fish that my neighbours like to catch down in the Alameda Reservoir. Moose Mountain Creek is navigable by canoe for a few days in spring, if you're not afraid of riding the current right into a barbed wire fence. In a wet year, you can navigate sections of it right through the summer, although you may do a fair bit of wading and leave some of your craft's gel coat on the rocks. I need to get my own canoe, a cheap rugged one, to keep on exercising my navigation rights.

I'm not surprised that people turn away and scoff as soon as they encounter "Oceans" and "navigable." We tend to look at our little creeks and sloughs and assume that they are insignificant little runts, compared with the beautiful Columbia, the magnificent Mackenzie, the crucial St. Lawrence, or even the smaller rivers that grace our prairie cities. And yet, when you think of it, our little creeks and sloughs are the only surface water we have. In our dryland climate, where the farmers say we are never more than two weeks away from a drought, these tiny ribbons and potholes of moisture are vital to nearly all our wildlife. Nevertheless, most of us seem to have dismissed them from our minds and from our attention ever since we finished being curious children, and as a result, they are profoundly misunderstood.

Last season, I discovered the lure of the creek crossings, something I had missed as a child growing up back in the hills. I began spending quite a bit of time down there with my kids. One day my daughter and I were enjoying the shallow spill of water over the concrete crossing, a mile east of the 604. There are culverts through the crossing, but when the water is high, the current is too much for them, and some of the water flows over top. We were standing at its edge, watching the froth and the reflections of the sunset, when a neighbour came along with her sandwich and beer for a picnic supper. She and I got chatting, while Ruth continued to watch the creek. Suddenly she squealed with alarm.

Something was writhing in the edge of the water. Ruth's gut reaction was that it was some kind of octopus, just in front of her toes (hence her shriek); but it turned out to be a bunch of suckers stranded in the rocks against the downstream side of the crossing, right next to the powerful outflow from one of the culverts. The neighbour reached into the foaming water and caught one to show us up close. She talked about how much fun it is to fish, and invited us to come along when the local chapter of the Wildlife Federation organized a trip to the reservoir on "free fishing day." Then to my amazement, she commented about the "stupid fish, trying to go upstream." She seemed to think that the good big water was downstream, so of course these big fish should be trying to get there.

I explained that the fish come upstream to spawn, way up into the Tecumseh pasture and beyond. The fry find plenty of food and shelter all along the shallows of the creek banks, and gradually work their way back down to the reservoir as the water drops later in the season. During the spawning run, when the adult fish coming upstream reach the crossing, their way is barred if the flow through the culverts is too strong to swim against, and the flow overtop is too swift and shallow.

Photo by Ruth, April 2005

The neighbour was intrigued, and we decided to help the fish she had caught, by releasing it on the upstream side. It darted off toward the depths, got caught in the vortex over the culvert intake, and went downstream. Stupid fish. Mind you, I imagine that if a fish caught me, held me underwater for a while and examined my form, and then released me on the opposite bank, I just might stumble back into the drink.

If you have read about our canoe adventures on the creek last season (see links above), or if you've spent any time studying the creek yourself, you'll know that there's more than suckers living in it. I still remember those quiet young pike, and the painted turtle hurtling away like a thrown discus. That little creek just down the road is important for fish and wildlife, which in turn are important for many people in this area. To my mind, the question is not whether the creek should be protected, but how.

Fisheries and Oceans might be the wrong department; perhaps they should focus on the big waters with commercial significance, and let the Environment Department take care of the watersheds that feed those big waters. That's okay with me as long as the different departments recognize and value their interdependence.

Perhaps both these departments are at the wrong level of government to be protecting our creek. Personally, I would really like to see our Rural Municipal Council take an active interest in managing and protecting our surface waters, rather than being in conflict with the environmental regulators. I think it could happen, but it would take initiative from local people, deciding to learn more, talk to their neighbours, look for new solutions, and work with other government bodies to get support and cooperation instead of resistance and top-down across-the-board rules.

This brings to mind an ironic case I saw, on an oil flowline project, where the planners made it a priority to choose the best site for a river crossing and thus avoid trouble with Fisheries and Oceans. As a result, they became inflexible about the rest of the project, and refused to consider changing the route to skirt a large tract of native prairie on the valley slopes above.

It's easy to talk about what would be the best way to organize our government responsibilities, but the reality is that they are shaped by a long history of incremental change. Government terms of office are usually too short to make big changes. There is a legitimate push to minimize new legislation by finding ways to adjust existing programs instead of adding new ones. Unfortunately the end result is a complex web of regulations and programs which may work fairly well, except that at face value they can appear absurd and inspire scornful hostility from the people they were originally intended to serve. Then elitism sets in, with those who understand the workings and the history becoming dismissive or adversarial towards those who just want to make things work here on the ground.

Water issues are confounded by the fact that water pays no heed to boundaries and property lines. In the U.S., the Supreme Court is considering the jurisdictional reach of the Clean Water Act. From the Environment News Service:

In October, the Supreme Court agreed to hear these two cases challenging the definition of federally protected waters. In both cases, the developers are arguing that they can pollute - even destroy - the waters at issue without a Clean Water Act permit. They argue that their right to pollute is protected by the U.S. Constitution.

[. . .]

Protection of tributaries was fundamental federal law long before the 1972 Clean Water Act, dating back at least to the 1899 Refuse Act, which barred discharge “into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.”

"Navigable waters" is an old, old phrase. It has a long and wide history of use as an organizing concept, to decide which waters are significant beyond the property within which they lie. We need concepts like that as baselines, as starting points for common understanding. We also need willingness and initiative to go beyond the baselines to protect the landscapes and living things that we hold dear.

Sadly, right now it seems that we don't even recognize the treasure winding through the pastures and fields just outside of town.