Wednesday, August 15th 2018

The Politics Behind Dirty Water

Courtesy of The National Resources Defense Center

Courtesy of The National Resources Defense Center

Following the breakout success of Rachel Carson’s book, The Silent Spring, environmental activism blossomed in the 1960s and early 1970s.  Numerous environmental legislation was passed, including the Clean Water Act in 1972.  For thirty years, that legislation allowed regulators to make great progress in cleaning up our nation’s waters. But these protections have been rolled back over the last decade.  Now, the Clean Water Act, which has long been considered one of the country’s most successful environmental laws, is failing to protect all of America’s waters.

Reduced to its essence, the Act’s mandates are quite simple.  The Act extends to all of the “waters of the United States.” It is structured to protect these waters in one of several ways.  The Act prohibits the discharge of pollutants from an unpermitted point source, it implements an oil spill prevention program, implements an impaired waters cleanup program, and creates a permit program with the intent to reduce the level of pollutants in waters over time.  Finally, the Act charges two federal agencies with implementing the Act’s mandates:  the Environmental Protection Agency and the Army Corps of Engineers.

For decades, agency regulations, which began implementing the CWA after its passage, reflected the intent of Congress to protect all of America’s waters, including among other things, tributaries of various waters, adjacent wetlands, and intrastate waters with linkages to interstate commerce. These regulations, together with the Act’s language extending the Act’s authority to “waters of the United States” is called its jurisdictional authority.  For decades, courts upheld that jurisdictional authority; and, when called upon to interpret the regulatory reach of the Act, have read the jurisdictional authority broadly.  These rules had been upheld by the vast majority of courts.

But, almost a decade ago, in January 2001, the Supreme Court issued its opinion in a case called Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (now affectionately known as SWANCC  and pronounced like the Oscar-winning actress Hilary Swank’s last name, but with a flat “a” as when you say “Aaaah”).

SWANCC was the first case to limit the jurisdictional authority of the CWA when it held that non-navigable, intrastate waters are not protected by the CWA solely because they could serve as habitat for migratory birds. Industry and the regulated community rejoiced.  They heralded this as a sign that the CWA-implementing regulations could be weakened.  And they were weakened.

Five years later, the SCOTUS further curtailed the reach of the CWA when it issued another opinion in Rapanos v. United States.  In Rapanos, the Supreme Court, by plurality, clarified that the term “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.

In February, The New York Times published another in its series of Toxic Waters articles discussing the challenges facing American waters, entitled Rulings Restrict Clean Water Act, Foiling EPA.  The authors outline the practical realities facing our watersheds as a result of the SWANCC and Rapanos decisions, including:

  • unwritten internal guidelines at the EPA steer lawyers away from filing cases where proving jurisdiction is too difficult (likely in an effort to limit additional attacks on the CWA’s jurisdiction).  As a result, approximately 117 million Americans get their drinking water from sources fed by waters that are vulnerable to exclusion from the Clean Water Act.
  • as many as 45% of major polluters might be either outside regulatory reach or in areas where proving jurisdiction is overwhelmingly difficult. (And, that means, that as a practical matter, an enforcement action will not be filed.)
  • Polluters now inform regulators that they consider their dumping activities outside the purview of the CWA, as in the case of the Cannon Air Force Base near Clovis, New Mexico.
  • 200 oil spill cases were delayed in 2008, even as the number of facilities violating the CWA steadily increases, year over year.

What does that mean for the ordinary resident, drinking tap at home or at work?  Your water may be increasingly toxic.  See, for example, our recent coverage of the probable Crestwood, Illinois cancer cluster or the New York Times’ Clean Water Laws Are Neglected, at a Cost in Suffering article, published last September.

The EPA is proceeding cautiously.  It has not issued regulations clarifying its jurisdiction of the Clean Water Act.  I would hazard a guess that the EPA’s lawyers worry that any challenges to its clarifying regulations would only further limit its regulatory authority in the current judicial climate.

David M. Uhlmann, who led the environmental crimes section of the Justice Department during the Bush Administration put it best, when he commented, ”[c]ases are now lost because the company is discharging into a stream that flows into a river, rather than a river itself.”

So, the EPA Administrator Lisa Jackson instead urges Congress to resolve this issue.  And, Congress has listened.  It has taken a stab at introducing the Clean Water Restoration Act, which would restore the extent of the CWA’s jurisdictional statement to its pre-SWANCC and -Rapanos days.

The bill has stalled after emerging out of the Senate Environmental and Public Works Committee, amid lobbying and public media campaigns from opponents, including conservative pundit Glenn Beck.  Using fear-mongering tactics, the bill has been classified by its opponents as “a sweeping overhaul of the Clean Water Act that could threaten both physical land and jobs by wiping out some farmers entirely.”

I’d like to ask you, our readers, for one thing.  As stewards of the land, with a responsibility to leave that land to future generations, to become educated.  And, if after a bit of research, you believe that restoring the jurisdictional limits of the Clean Water Act would improve the water quality of our nation’s streams, lakes and rivers, contact your state representative or senator.  Ask him or her to support the Clean Water Restoration Act.

For resources, including studies on the safety of drinking water, please visit the New York Times’ Toxic Waters Project Resource section here.  Additional background information can be found at the EPA’s Clean Water Act: Definition of “Waters of the United States” page.

Posted by Krystyna on March 29, 2010 at 3:07pm.

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