As dusk settles into night, the Calwells relax on a sandbar in the Kaw, swapping stories with friends. A driftwood fire lights their faces as they share red wine from plastic cups. But even here at their calm campsite, the Calwells are reminded of their struggle to protect the river. Looking up at the stars, they notice a satellite. Mike indulges a sinister thought: "There's a senator out in western Kansas that'd go real good up there. We ought to put old Janis Lee on that satellite."
Janis Lee is a friendly, polite woman from the puny prairie town of Kensington, halfway across the state about twenty miles south of the Nebraska line. But in this crowd, she's a surly villain who has fouled the waters of their cherished Kaw. This past legislative session, Lee floated a proposal they refer to as the "Dirty Water" bill. When Governor Bill Graves signed it into law this spring, thousands of miles of Kansas streams were suddenly removed from the federal government's most stringent environmental protections. Many of those creeks flow into the Kansas River. Now, thanks to Lee, landowners who live and work along their banks throughout Kansas are free to contaminate the water.
Lee's bill was the most recent strike in a decade-long assault on environmental protection by political forces in Kansas influenced by the agriculture industry. On several occasions in February and March, the Calwells drove to Topeka to argue against it, just as they had against other similar bills. Zealous river boaters, the Calwells have devoted their lives to defending the Kansas River. Laura is president of the Friends of the Kaw, and Mike is former president of the Kansas Canoe Association. Both groups lobby on behalf of the river, to keep it clean and accessible for recreational use.
But there's more at stake than the freedom to have fun. Near Mike's feet stand a couple of two-liter plastic bottles filled with clear water. As he was preparing for this overnight float from the working-class town of Perry twelve miles downstream to Lawrence, he filled the bottles with water from his kitchen sink. Just like the hundreds of thousands of other taps in Johnson County, Mike's faucet connects to a vast matrix of pipes that stretch northward to a gated water plant near the overpriced homes of Lake Quivira. Two more pipes reach the plant from the north -- each as wide as a man is tall, each beginning at the Kansas and Missouri rivers. "We get our water from the Kaw," Mike says. "So I'm surprised we're still living now."
The campfire crowd laughs, but his joke carries truth. For years the government has considered the Kansas River an "impaired" body of water, meaning it's polluted beyond what is safe for fishing, swimming and drinking. And the Kaw pours into the Missouri River, which is the water source for most of Kansas City.
The Kaw isn't as bad as it was before the 1972 Clean Water Act, when rivers back East caught fire and in Kansas millions of gallons of raw sewage and industrial waste poured into the Arkansas, Missouri and Kansas rivers. But the currents of the Kaw still carry chemical contaminants and fecal coliform, a sickening bacteria carried by human and animal waste. And their source is an unlikely culprit. The state's biggest polluter is all the pristine ranch and farmland stretching toward the west.
Upstream about 260 miles, where a three-o'clock sun ravages the grassy fields of western Kansas, Senator Janis Lee steps from an air-conditioned sedan and squints into the brutal heat. A hawk floats by, clutching a small rodent. In the distance stands an abandoned church, its white paint nearly worn away by decades of sun, wind and occasional rain. The senator descends a slope of yellow grass and stops at a dusty patch of earth tucked into a low cluster of trees. The soil under her feet is marred with deep cracks.
She poses a simple question: "Why would you spend money on the quality of the water in this stream when there's no water here?"
Thus she reiterates the buzz that has gripped this and other rural counties across Kansas since May of last year. That was when environmental attorney Charles Benjamin stood on the patio of the Riverfront Mall in Lawrence and announced that his clients, the Sierra Club and the Kansas Natural Resources Council, had reached a settlement with the U.S. Environmental Protection Agency. Henceforth, he declared, more than 1,400 water bodies in the state must be made clean enough for boating, skin diving, water skiing, windsurfing, mussel harvesting, fishing and swimming.
Among those 1,400 water bodies is this dry creek bed Lee stands in. It's a typical western Kansas stream. On local maps it appears as Cedar Creek, a blue dotted line wiggling back and forth across the Phillips and Smith county line. Most of the year it's a parched path. The countryside in this part of Kansas is defined by such landmarks. Driving west on U.S. 36, once the main route between Kansas City and Denver, the road through Smith and Phillips counties feels like a low, stretched-out roller coaster. Every few miles the highway aims straight into a blue belly of sky. When the hill crests, a valley opens up below. At its lowest point, a row of trees snakes across the brown landscape. In the shade is a bridge, and underneath that, in July, there's cracked dirt.
But these bone-dry gulches all have a destination. Whenever Phillips and Smith counties are blessed with a cloudburst, the rainwater scours the hillsides and washes whatever is on the land into the creek beds. Cedar Creek flows for a day or so until it, like most of the other creeks in the two counties, drains into the Solomon River, which winds hundreds of miles eastward toward Junction City. There it joins with the Republican River to form the Kansas River.
Yet to the ranchers and farmers out here, the EPA's court-induced mandate seems as realistic as climbable air. Big ag groups such as the Kansas Farm Bureau and the Kansas Livestock Association have been fighting it by playing up its absurdity, telling their members how much precious time and money they'll spend keeping all of their pesticides, fertilizers and cow manure out of the dusty waterways. "As if farmers don't have enough to worry about -- as they grow crops that won't fetch a decent price, or as they watch their crops wither in drought -- now they have to worry about swimmers and waders," editor Darrel Miller declared in the Smith County Pioneer. Most farmers and ranchers had reactions similar to that of Roger Fricker, who works the land near the geographic center of the 48 states: "You can't put into words what I want to say. It wouldn't be right to say in public."
Over the last year, nearly 1,500 of Fricker's colleagues packed into city halls and county extension offices to speak out at public meetings. They waved pictures of dry streams like Cedar Creek. They branded attorney Benjamin a fascist and a communist.
Out of the fervor rose Kansans for Common Sense Water Policy, a coalition made up of just about every major player in the state's ag scene -- from the Kansas Farm Bureau to the Kansas Fertilizer and Chemical Association. The group found a champion in Senator Lee, a Democrat who has served a predominantly Republican district for thirteen years. Bob Dole would be her constituent, if he actually lived in his house in Russell. She stepped forward and introduced Senate Bill 204 -- the "Dirty Water" bill. It "de-listed" most of the state's streams -- among them Johnson County's Mill and Turkey creeks, both sites of popular hiking trails -- declaring them too dry to make safe for swimming and fishing.
A political fight erupted. At the capital in Topeka, small meeting rooms reserved for the Senate Natural Resources Committee and the House Environment Committee were packed with Big Ag reps and environmentalists who hurled barbs at one another. "This process is absurd!" complained Jere White, spokesperson for Kansans for Common Sense Water Policy. "In short, recreational use is not appropriate on these streams."
"It is not by accident that the leader of this group, 'Kansans for Common Sense Water Policy,' is none other than Jere White," declared Benjamin. "Mr. White is paid by Novartis, a Swiss corporation, to make sure that [people] who live in cities in the northeast part of Kansas get to spend hundreds of thousands of dollars to remove the weed killer atrazine, made by Novartis, from our drinking water."
Media weighed in Kansas-style, with the big-city dailies and the small-town weeklies on opposite ends. "The environmentalists are worried about the nation's water, and that's commendable," wrote the Smith County Pioneer's Miller. "We urge them to concentrate their guns on the major pollution, such as construction sites in urban areas, and not nit-pick over whether a dry stream contains a little manure." The Wichita Eagle's political cartoonist scribbled scathing commentaries -- one panel depicted a rancher using the state as a mat to wipe globs of cow shit off his boots.
Lee sees her bill's passage as a victory not only for the farmers and ranchers -- who no longer need to worry about crazy eastern Kansas environmentalists who want to trespass and swim in their dry gulches -- but for tree-huggers too. The EPA settlement, she says, was a top-down, money-wasting mandate from bureaucrats who probably have no idea where their hamburgers and steaks come from. "The focus of 204 was to help target dollars so those dollars can be used where it makes the most sense," Lee says. "There's simply not enough resources, federal or state, to make these creeks fishable [and] swimmable."
But SB 204 isn't really about fishing and swimming. It's about money. This becomes obvious when Lee leads a tour of her home turf. It begins at Calvin Lowry's ranch near the one-stop-sign town of Stuttgart (pronounced Stoo-gurt). Here Lee's cohost, Darrell Gale, a retired farmer and rancher, steps forward and points at a knee-high, boxy structure and says, "That's what we're trying to get people to do, right there."
It looks like a giant Fisher-Price toy. Made from molded chunks of sturdy red, yellow and blue plastic, it rests on a concrete slab in the middle of a grassy field. All around it grasshoppers rise from the brush like popcorn. Lowry, a tall rancher with a wide-brimmed hat and a cell phone on his hip, leans over and sticks his hand through a small opening in the structure, revealing a reservoir of clear water. "Cows just stick their noses in here and get a drink," he says.
A few paces to his right is a barbed wire fence. It stretches half a mile across his ranch, marking the border of his calving area, where in late winter he gathers cows that will give birth. Lowry and a hired hand spent two weeks of ten-hour days building it. On the other side of the fence is a tiny spring. It's the birthplace of Deer Creek, a strand of cottonwood, ash, elm and hackeberry trees that runs through thirty miles of Phillips County. Lowry's cows used to lounge in the spring, drinking and defecating all day, but the fence put a stop that. Now they drink from the plastic box and drop their pies in the fields.
Lowry's water box and fence help the environment, though that isn't why he installed them. His cows tended to congregate in one spot and trample the creek banks to a slurpy mud. Every once in a while one would get stuck and he'd have to waste hours rescuing her. Now they're all contained on a smooth patch of dry prairie, where he can keep an eye on them.
But the environment benefits just the same. And that's what Darrell Gale and his friend Senator Lee want to make clear: "Not everything we're doing up here is bad."
Despite the hassle of cows stuck in mud, Lowry might not have put in his box and his fence without some help. Considering all the necessary supplies and engineering plans, the water box and the well that feeds it were expensive. And at a buck a foot, so was the fence. But he got some prodding from the local conservation district, which coordinated state and federal assistance.
Gale is chairman of the State Conservation Commission, which oversees Lowry's local district office. It was established in 1937 after the Dust Bowl, an epic disaster created largely by poor land management and severe drought. When settlers broke the prairie sod for rows of crops, they shattered the delicate balance of the land -- for millennia, the sod had held the soil tight to the earth. Once it was gone, the soil was vulnerable to wind and rain erosion. For the first few decades of the Commission's existence, it focused on slowing that erosion by planting rows of trees and sculpting terraces across the land. But the agency's aim has shifted. "For the last fifteen years or so, water quality has really been the issue," Gale says.
And he's eager to show off the progress in Lee's massive district. On a handful of farms and ranches in Phillips and Smith counties, narrow swaths of prairie grass run down the centers of wheat fields to filter runoff, patches of wildflowers grow between cornfields and bends in the Solomon River, and big, smelly feedlots -- two of them owned by Lee's family -- have been moved up out of streambeds that now dump their dung-rich slurry into lagoons for natural disinfecting. "If the EPA and [Kansas Department of Health and Environment] give us a little bit of time, we'll clean it up," Gale says. "We'll get all this stuff taken care of."
"We'll be the first to admit we have a lot of improvement to do out here," says Lee. "But the best way is to get people to do it voluntarily. If I have incentives, I'm more likely to do things than if you're standing over me with a stick."
This admission contradicts all of Lee's and Gale's ridicule of environmentalist swimmers from Kansas City's suburbs. Their tour basically confirms the pollution that comes from Kansas farms.
"[It's] the biggest problem we have. Let's face it," Gale admits.
Even if he and Lee tried to deny this fact, evidence is available for everyone to read on the Internet. Throughout the '90s, federal laws required Kansas to test its waters for a variety of contaminants. Every two years, the results of these tests were compiled in 305(b) Reports, which have been posted at www.kdhe.state.ks.us/water. The most recent report, filed in 2000, focused on whether the state's water bodies were able to support aquatic life. It revealed that the overwhelming majority of tested stream miles -- 81 percent -- were like the Kansas River: Their biodiversity was "impaired." The report placed top blame on the ag industry.
Earlier reports, found only in the KDHE's files, were more damning. In 1992, for example, state scientists wrote: "Agriculture exerts a singularly important influence on surface water quality conditions in Kansas. Erosion of croplands produces elevated concentrations of silt and other suspended materials in streams and lakes, often to the detriment of native aquatic and semi-aquatic life. The presence of nitrogen- and phosphorous-containing fertilizers in stormwater runoff promotes nuisance growths of algae and detracts from the recreational uses of surface water. Stormwater runoff from feedlots, livestock wintering areas, and heavily grazed pastures introduces fecal pathogens and oxygen-consuming organic wastes to nearby lakes and streams, detracting from the sanitary condition of these waters. Pesticide residues in some drinking water supply lakes and streams pose unacceptable, long-term risks to human health and/or add substantially to the costs of drinking water treatment."
Nationally, there is a growing sense of urgency about agriculture waste. Eight years ago, an outbreak of cryptosporidium in Milwaukee that infected more than 40,000 people, killing twenty of them, sparked concern about drinking water supplies contaminated with the difficult-to-detect bacteria common in animal waste. Under the Bush administration, one of the new EPA's first actions was to issue a rule protecting consumers from such microbial pathogens.
Another concern is the "Dead Zone" in the Gulf of Mexico. In what was once a prime fishing area, no creatures survive because accumulated fertilizers and organic contaminants have depleted all the oxygen. Their source is the Mississippi River -- the ultimate destination of all Kansas runoff.
Ask just about any farmer or rancher in Smith County, and he'll tell you all this talk about pollution is hogwash. Here, where the area's most celebrated attraction is the tiny log cabin where Dr. Brewster Higley wrote "Home on the Range," people simply don't understand how anyone who lives in the tangled and dirty sprawl of Kansas City can complain about a little manure. "Out in the city you have pollution," says Roger Fricker, the rancher with the unprintable comments about the court-mandated water standards. He's helping his kids show off their prize cow at the Smith County Free Fair. "Out here, there's no pollution. Except that," he says, pointing at fresh plop of cow dung. "And that's not pollution. That's biodegradable."
In these parts, even the people who pass for city folks hold such views. "It seems like everybody is trying to fine-tune society so as nobody ever gets hurt, and nature just isn't like that," says the Smith County Pioneer's Darrel Miller. "Cow shit is cow shit. You're not going to outlaw it. But it won't kill you. I can attest to that. I've had it on me."
Steve Wingerson has heard all of that. For the last thirteen years he has worked out of Smith Center, the county seat, for the federal government. He helps farmers and ranchers conserve the land and protect the water. He can hardly drive a mile without seeing a farm he has worked on. In the late '90s, he hustled all over the county's 900 square miles, running a big staff and a big budget. That was after the 1985 Farm Bill passed with an ultimatum for farmers: Employ conservation techniques or lose your government subsidy checks. Now 90 percent of the county's farms and ranches are terraced to slow down erosion.
But terracing only goes so far to clean up the water. Wingerson's current projects are aimed at removing cows from creeks and spreading grassy buffer zones along endangered waterways. At the request of Senator Lee, he agrees to show the Pitch how well the projects are working. With the sun blasting furiously in the western sky, he aims a white government pickup south out of Smith Center on U.S. 281, passing a small copper replica of the Statue of Liberty lifting her flame toward the prairie. "The Boy Scouts put that there years ago. I'm not exactly sure why," he says. "Of course, around here, some people shoot at it with their rifles."
His destination is a bend in the Solomon River near the southern edge of the county. The land, he explains as he eases off the dirt road, has been badly overgrazed. For years the property owner packed his livestock onto the land. When the grass wore thin, he'd chop down a couple of trees so the cattle could munch on the leaves. If you could float up above this spot a hundred feet or so, you'd see how the natural mane of trees that grows along the Solomon ends sharply at the property's boundary. Now the once-barren spot is overrun with enough ditch weed to keep every stoner in Kansas City happy for at least a weekend. Amid the tall marijuana -- around here it's just another nuisance weed -- are several rows of knee-high ash trees planted to reclaim the land and filter the Solomon's waters.
Give him a week, Wingerson says, and "I could show you the worst, where a guy just has soupy manure just running right into a creek. And I could show you the guys who are doing everything right."
If he did, a clear pattern would emerge: Far fewer are doing everything right. Last year, only ninety landowners applied for grants and planning help for water-cleansing projects, out of more than 600 farmers and ranchers in the county. Wingerson has had more success getting them to sign up for a program that pays to convert farmland to water-filtering buffer zones; about 5 percent of the county's cropland is enrolled. But he's quick to admit there's a long way to go.
"We don't know why more people aren't doing these things," Wingerson says. In the past he spotted serious erosion problems and found ways for the government to pay 90 percent of the cost to fix them, but the landowners dragged their feet for a year before agreeing to the repairs.
Wingerson's experience belies Senator Lee's optimism that given the right government incentives, farmers and ranchers will voluntarily mitigate the pollution oozing off of their land. Standing on the banks of the Solomon, Wingerson acknowledges that almost every bending mile of the river between here and Junction City runs through a farm or ranch. And every one of those ranches and farms is, in some ways, a nation unto itself, run by a fiercely independent soul who has his own notion of how things ought to be done.
A hundred miles or so downstream, the Solomon River picks up water that runs off of Jim Scharplaz's ranch. On a blistering July day, he stands on a dry slope and surveys the central Kansas horizon he works and owns. Over these amber hills, he runs the same herd of cattle his father began working in the '50s. Windblown and nearly treeless, it seems a simple landscape. Yet Scharplaz remains amazed by it. "It's even more complicated than economics, what's going on out there," he says. "As soon as you think you know what you're doing, you got it wrong. Nature spent millions of years to get it like that. The chances that I'm smart enough to figure out something better aren't very good."
But that doesn't stop him from trying. To simulate the natural forces that ruled before Europeans settled here, Scharplaz sets portions of his ranch on fire. A year or so later the grasses grow back heartier than ever. He also rotates his cattle around the 3,000 acres to mimic the migration of a buffalo herd. "What I try to keep in mind is what I'm really supposed to be doing is growing grass, and cows are just another thing that helps me to do that," he says. "That attitude helps me to do good things to take care of the grass. And if you take good care of the grass, you're taking good care of the water."
Out here, Scharplaz is an iconoclast. Some of his neighbors have even called him the e-word. After a conservative state representative yelled him down at a public meeting, he wrote an editorial for the Salina Journal called "I Guess I'm a 'True' Environmentalist."
"I think I once gave some money to the Kansas Natural Resource Council," the column quipped. "I've even shaken Wendell Berry's hand."
His product appeals to the green set. He sells Prairie Natural Beef sirloins and briskets, having raised his cattle without hormones or antibiotics. One of his big clients is the Salina Senior Center, which pays a premium for his beef.
But he and his wife, Kathy, sell only about 10 percent or 15 percent of their beef to health-conscious customers. The rest goes through the local slaughterhouse to meat eaters who have no idea they've lucked out and scored an organic steak. Isolated from the liberal cities on the east and west coasts, Scharplaz just can't make enough money to raise his family on health-food sales.
Like some of his customers, Scharplaz sometimes gets worked up about the environment. He fumes over the way his fellow farmers mistreat water. "Anyone who farms in Kansas knows that if you don't have water, you're nothing," he says. "So to take a chance at messing it up is stupid. Stupid!"
Yet here on this hillside he admits that he's yelling at himself as much as anyone. He points to his left, where a couple dozen heifers lounge in and around a pond. "They stand in there and crap in there and make a mess," he says. "They ought to be fenced out of there."
To his right, some trees huddle in the shape of an S. "After a while my cows will wander over there and stand in the shade and crap in that stream bed," he says. "And when we get a good rain it'll wash into the Solomon, and in a few days it'll reach you in Kansas City."
If he were younger and more naïve, he might spend the next couple of autumns putting up mile after mile of fence to keep his herd out of the waterways. But now that he's a father of two, his sense of reality forbids it. "All I have time to do is what absolutely needs to be done," he says. "If it's not broke, I don't have time to fix it."
He certainly can't afford to operate like his friends Jim and Sue Keating, who live downstream in Bennington. The couple tend 160 acres of land, the exact amount the government offered to settlers in the nineteenth century. Currently, scientists are testing the water in Sand Creek, which purrs past their spread. They're finding that it's more contaminated upstream from the discharge of Bennington's sewer lagoons than it is downstream. Water wells burrowed all around the city reveal contamination, but one bored into the Keating property shows less pollution. The Keatings want to keep it that way.
So now they're organic farmers, raising their crops without the benefit of herbicides or pesticides, but with grant money from the U.S. and Kansas governments. "Our philosophy is more to feed the soil than to feed the plants," Sue says.
They've sculpted buffer zones along Sand Creek to keep soil from washing away. They rotate their crops to replenish soil. Year after year farmers before them poured anhydrous nitrogen and other chemicals into the land they now own. The same crops were raised year after year, which sucked the nutrients from the earth. "It's not alive," Jim says of most soil in his part of Kansas. "All it's got is a structure to hold roots."
It's been tough for the Keatings. This is their fifth year without chemicals, and they're just now reaping a good crop. Their neighbors think they're nuts. They see Jim and Sue out every morning from 6 until the sun flares high, pulling up acre after acre of tall pigweed stalks. For the neighbors, weed control is easy as calling the co-op and ordering a shipment of atrazine or Roundup or whatever their chemical man tells them to use.
But Jim thinks his neighbors are the ones who are crazy. In mid-July he watches them disc the fields with their tractors, kicking up quarter-mile-long clouds of dust. He shakes his head. After the Dust Bowl, he thinks, how can they do such a thing? The answer is simple: The economics of farming have changed. Farmers simply can't live off a homestead plot anymore. And on today's mega-farms, organic farming isn't an option. "Of course it's a lot more work, and that's what the big farmers say," Jim says. "You got 3,000 acres, you can't do it." If it weren't for his job at the Kansas State University campus in Salina, Jim, who is almost sixty years old, wouldn't be able to survive.
Jim blames the government as much as anyone. He says the system promotes big, sloppy agriculture. Here's how it works: The feds guarantee each farmer a price on his yield. It might be $2.61 a bushel of wheat, for example. If the local elevator is only paying farmers $2, the government will cut a check for the other 61 cents. "The more you grow, the more you get," Jim explains. "It's quantity, not quality. I've seen these guys just clean up on government checks."
Like the economics of farming, the economics of food markets have changed, too. "We compete with producers worldwide," says Lee. And she predicts the competition will get stiffer in coming years. "There are a few plateaus in South America being plowed over right now. They don't have environmental laws down there."
So Kansas farmers and ranchers continue practices that degrade the land and, in turn, the water. Among them is Scharplaz, who, despite his concern for the environment, still has to provide for his wife and two sons. One's named Danny and he's fascinated by outer space. He shows off a photo in a book about Mars and points at the lines crisscrossing its red surface. "They say these used to be rivers," the eight-year-old says. "They had water in them."
"But then they de-listed all their streams," his dad scoffs. "And look where that got them."
One thing Terry Shistar has certainly learned in all her years as an environmental activist in Kansas is that you have to sue to get things done. She's been at it since 1979, when her family was doused with toxic pesticides. Back then they were living on a farm north of Lawrence. An airplane spraying the alfalfa fields across the road drifted over her property again and again despite her shouts and arm waving. All of her honeybees died. She had to throw away a summer's worth of vegetables. She filed a complaint and managed to get the sprayer fined -- the first fine ever handed down by the Kansas Board of Agriculture, she was told.
In the process, she learned of other people in the state who had been harmed by pesticide use. Over the next decade, Kansas grew a small community of environmentalists, and Shistar was among its most active. She joined and started organizations, and she went to school to sharpen her attack. "Some people got mad," her son often says. "My mom got a Ph.D."
Now she lives on a farm southwest of Lawrence with her husband, her dog and a handful of free-roaming chickens, peacocks and kittens. Whenever it rains, the land around her washes into Washington Creek, a sometimes-dry depression whose contents pour into the Kaw. State scientists have declared the watershed area she lives in to be "high priority" for cleanup, due to fecal coliform contamination. Yet when Shistar and her children visit the creek bed that runs by her home, they witness a richness of natural life: a big bullfrog, deer, wild turkeys, raccoons, even bobcats. "Spending a lot of time down there," she says, "you come to realize this is more than just water flowing as fast as it can down to the ocean."
So to protect those critters, and her own water supply, she lends her earned expertise to the ongoing battles to clean up the state's environment. The files in her study overflow with the recent history of environmental progress -- and regress -- in Kansas. The particulars are complicated, but the general theme is simple: Environmentalists sometimes win in court, but whenever they do, the powers that be change the laws.
Three times during the last decade, the Sierra Club and the Kansas Natural Resources Council have filed victorious lawsuits. And Senator Lee's legislation, SB 204, is the latest counterpunch. "Politically, this is an act of writing off all those streams as not counting," Shistar says.
"[It's] the same kind of crap," says her friend Bill Cravens, who served as co-counsel on the first two suits. "That's pretending like if you change the definition of pollution, the pollution will go away."
Senate Bill 204 seems to blatantly contradict federal regulations, which mandate that all streams be classified fishable/swimmable unless specific studies prove they can't be. The federal rules were written to prevent what environmentalists call the race to the bottom, in which states -- hungry for economic development -- lower their standards to lure industries that want to cut environmental corners. But recently, the EPA surprised environmentalists with a ruling that might create a loophole big enough for the whole state to slip through. In March, federal and state officials temporarily reversed the intent of the Clean Water Act; now, streams don't have to be protected for fishing and swimming until studies prove they can be.
"That is standing the Clean Water Act on its head," says environmental attorney Charles Benjamin. He says SB 204 -- and this puzzling change of course by the EPA -- is now drawing attention nationwide and could become a precedent, with other ag lobbyists looking to create loopholes in their own states' environmental laws.
At the very least, Lee's law mocks science -- and even common sense -- which clearly shows that the whole state of Kansas tilts gently toward the Kansas, Missouri and Arkansas rivers, and that all the contamination from the thousands of farms out west drifts steadily down through them. "It isn't a scientific issue," says Jon Ferguson, Senator Lee's brother and co-owner of her ranch. "It's a political issue. It always will be. And the political issue is the economic reality of the situation."
So the costs trickle downstream, to places like Johnson County, where people spend more than $200,000 a year to remove atrazine from their drinking water. And to the palatial EPA Region VII offices, overlooking the spot in Kansas City, Kansas, where the contents of the Kaw blend with the Missouri River, the source of drinking water for hundreds of thousands of Kansas Citians. In accordance with the Clean Water Act, the EPA has to pay court costs and attorney fees to parties who win lawsuits challenging Kansas' shifty laws. Benjamin promises more litigation in the future. He says he's rounding up the state's environmental troops to block the official commencement of SB 204 as law, which is set for September. But he says his clients are waiting to see what the EPA does about the law before jumping in. (As of press time, EPA officials say they've made no decision, despite the passage of a statutory deadline in mid-July.)
Senator Lee is unfazed by Benjamin's threats. She says her bill was written anticipating litigation. Legal counsel was provided by Allie Devine of the Kansas Livestock Association, who, through a spokesperson in her office, says the Clean Water Act allows some discretion for states. Beyond that, it's a matter of principal. "You don't not pass legislation because you're afraid you're going to get sued," Lee says. "You pass legislation because you believe it's good policy."
Mike Calwell is looking for an eagle. He slices the soft current of the Kansas River with his kayak, casting his gaze at the treetops towering along the shore. Every so often a blue heron fakes him out with its wide wings. "There used to be hundreds of eagles out here," he says of this stretch of the Kaw just south and east of Lecompton, a run-down town that long ago was named Eagle. "Now it has only one nesting pair."
He goes on to recite the near-fatal history of our nation's symbol: how farmers doused their fields with the wonder pesticide DDT; how the DDT washed off the land and into the water, after which it stuck in the fatty tissues of fish; how eagles ate the fish and were poisoned by the DDT; and how the DDT softened their eggshells and killed their embryos. "We darn near wiped them out," he says.
On the stern of Mike's boat is a small black mutt named Zoe. With a tiny orange life jacket on her back, she points her snout downstream, stable as a schipperke. Mike and Laura adopted her a few weeks ago, after their longtime companion Ally passed away. "We called her 'The Bean,'" Mike says. "She was little and brown." The Bean had been down the full stretch of the Kaw several times, navigating on the bow of Mike's kayak. She followed him everywhere. At nearly fifteen years old, she couldn't hear well, so when Mike called her to go for a ride in the car with him one day, she didn't lift her head. She must have felt the vibrations from the car when Mike started backing out of the garage, though, because she ran out of the house and straight under one of his tires. He rushed her to the vet, who worked on her for hours, "but she was just too squashed," he says.
Mike paddles on, searching the skies for his eagle, an essential component of the ceremony he plans to perform. Laid across his bow is a single red rose wrapped in cellophane. Beside it sits a plastic container labeled "ALLY 'Bean Dog.'" Inside are her ashes, which he plans to sprinkle in the river at first sight of an eagle.
He spots a black line moving across the sky to the south. "That's the wing beat of an eagle," he says hopefully, lifting his binoculars. The bird ducks behind a tree. "Come on out here," he says, squinting. "Yep. That's an immature eagle."
It carves a spiral in the sunlight above a cottonwood.
"God, they're beautiful," Mike says. "They just soar."
He moves to the center of the river. Laura paddles to his side. "Say the poem," he tells her.
"There once was a dog named Bean," she begins. "I can't remember it."
Mike snaps the top off of the Tupperware dish. "All right, let's do it,' he says. "There once was a dog named Bean, who was a river paddler's dream. She sat on the bow and barked at a cow, and she was the best damn river dog I've ever seen."
He lays the rose on the current. "There you go sweetie," he says.
Then he sprinkles dust onto the sparkle of the water and watches it dissolve and flow downstream.