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Clean Water Champions Stand Up in the Senate

2009-06-18T20:07:04Z

Today, the Senate Environment and Public Works Committee approved the Clean Water Restoration Act, a landmark bill that will reinstate Clean Water Act protections against umpermitted dumping of pollution, filling, or destruction for a host of water bodies jeopardized by a pair of Supreme Court decisions. It was quite an interesting morning; the meeting at which the Committee debated the bill and proposed amendments can be seen here.

This debate often becomes esoteric, as you'll see from the video. We lawyers tend to talk about the role of the word "navigable" in the statute, the legislative history surrounding the consideration of the law in 1972 and 1977, and the extent to which the Constitution authorizes Congress to enact a strong pollution control program for a wide range of water bodies. But the meeting this morning - called a "mark-up" by Capitol Hill experts - was a great reminder of why we've been working on this so hard for so long. And the person who reminded me was one of the staunchest opponents of the bill there - Senator Barrasso of Wyoming.

Senator Barrasso offered a series of amendments seeking to exclude a variety of water bodies from the bill, including natural lakes, streams, and wetlands. As he offered his amendments, he held up pictures of a number of the features in question, as if to ask whether such a thing ought to be protected by the federal law, and each time, I thought to myself, "heck, yes." Excluding water bodies from the federal law is equivalent to saying that it would be acceptable to destroy those waters or pollute them with untreated sewage or industrial waste. Dropping water bodies from the Clean Water Act does not guarantee they will be polluted, but it is tantamount to saying that they are not important enough to warrant uniform minimum pollution prevention standards to keep them from such a fate.

As I've written before, because of the Supreme Court's decisions, government officials had declared thousands of bodies of waters - including lakes, streams, and wetlands - outside the purview of the Clean Water Act. As a result, the people who rely on those water bodies cannot depend on the Act's safeguards against unregulated industrial pollution and destruction. The Environmental Protection Agency acknowledges that these decisions have undermined the agency's enforcement of the Act. The Obama administration recently told Congress that "[i]t is essential that the Clean Water Act provide broad protection of the Nation's waters, consistent with full Congressional authority under the Constitution."

To address this crisis, Senator Russ Feingold and 24 other Senators sponsored the Clean Water Restoration Act, which the Committee considered today. The Committee ultimately approved a substitute amendment to the bill championed by Senators Baucus, Klobuchar, and Boxer that adds two exemptions from the law sought by farmers and by wastewater treatment plant operators. It also removes provisions that opponents of comprehensive clean water protections had wrongly suggested expanded the scope of the law, and it specifically directs federal agencies to implement the new law consistent with the historic practice prior to the Supreme Court's decisions.

We are very grateful that the Committee has taken this critical step. Congress cannot fix the Clean Water Act soon enough, and today's action reflects the urgency and importance of the problem. While the bill is definitely a compromise, Senators Baucus, Klobuchar, and Boxer deserve great credit for maintaining the core purpose of the legislation: returning protection to imperiled waters and charting a path forward that responds directly to claims made about the legislation. We also owe thanks to the Senators who joined them in moving the bill onward and opposing the radical amendments offered by Senator Barasso -- Senators Carper, Lautenberg, Cardin, Sanders, Whitehouse, Tom Udall, Merkley, Gillibrand, and Specter.

"It Always Takes A Woman"

2009-04-14T23:25:22Z

The title of this post is stolen from EPA Administrator Lisa Jackson, who used the line during a recent public appearance. (Click here, then click on the player button to watch it; the relevant discussion begins at about 15:40.)

Administrator Jackson was speaking of a particular woman -- Mother Nature -- and her ability to keep water safe and plentiful. She's right. Water bodies such as small streams, ponds, and wetlands can absorb flood waters, filter out water pollution, shelter wildlife, and recharge groundwater and surface water supplies used to supply drinking water.

But, as Administrator Jackson indicated, Mother Nature is in trouble. Across the country, numerous water bodies are at risk of losing protections that the Clean Water Act provide against unregulated pollution. As I've discussed before, two Supreme Court decisions made the law -- which had been remarkably successful at improving the Nation's water quality for decades -- a mess. Thousands of water bodies already have been denied legal protection; countless more await the same fate.

This crisis is the subject of a report NRDC released today with a number of partner organizations, titled, "Courting Disaster: How the Supreme Court Has Broken the Clean Water Act and Why Congress Must Fix It". The report spotlights dozens of cases where water bodies have either been found not to be protected by the law or where their status has been questioned. The report shows how these legal decisions have real-world consequences for critical aquatic resources, and demonstrates the need for Congress to put the law right by passing the Clean Water Restoration Act.

Today's report, sadly, is a sequel to a prior report identifying many other waterways affected by the legal muddle. I say "sadly" because the problem has persisted for way too long, with water bodies being polluted or destroyed all the while. Yet I'm optimistic today, because leaders in Congress and the administration are focusing on fixing the problem. Senator Feingold recently introduced the Clean Water Restoration Act with 23 co-sponsors and, in another recent appearance, Administrator Jackson identified this legal mess as her top water pollution issue. (Click here -- the pertinent part of the discussion runs from the 17:09 mark to the 18:18 mark ) She noted her support for restoring protections to key waters, and more importantly, gave a sense of what kinds of waters she had in mind: "First and foremost, I want to make sure that we are embracing all the waters where we can potentially have impacts on human health and the environment." Again, the Administrator has it right, and her approach suggests the need to restore the Act to its prior comprehensive scope, because all kinds of water bodies support wildlife habitat, clean drinking water supplies, fishing opportunities, irrigation, and more.

Passing the Clean Water Restoration Act and re-establishing protections for the Nation's water bodies will give Mother Nature the tools she needs to provide safe and sufficient water now and in the future. She deserves the help.

Good News on the Water Front

2009-04-02T22:17:06Z

It's a good day. Today, Senator Russ Feingold and 23 additional Senators joined to introduce the Clean Water Restoration Act of 2009, a bill that would ensure that the Clean Water Act applies to protect a host of water bodies that previously were covered by the law but now may not be. In 2001 and 2006, Supreme Court issued decisions that have been interpreted to mean that the law - and its programs protecting the Nation's water bodies from unregulated industrial pollution, oil spills, and destruction by filling - might not apply to water bodies that are "isolated" from others, that are located far from "navigable" waterways, or that are dry for portions of the year. NRDC's fact sheet about this legal problem can be found here.

Scientists know that these legal distinctions ignore the critical functions that these resources serve. From replenishing drinking water supplies, to mitigating floods, purifying water, and supporting wildlife habitat, the same wetlands and streams that are at risk because of the Supreme Court's decisions also perform vital services for people and the environment.

Moreover, even perennial, but small, streams such as the one pictured below are not necessarily going to be protected going forward. At least one federal appeals court has said - in a case involving a permanently-flowing Alabama stream - that the government needs to show that a water body has a significant link to some downstream "navigable" one in order to enforce the Clean Water Act's pollution control programs for that water body. Doing so is time-consuming and resource-intensive.

Since the first Supreme Court decision in 2001, government agencies deemed an estimated 15,000 water bodies unprotected by the law. More are losing protection regularly, and the government's ability to enforce the law has been hamstrung by questions about what remains protected.

By clearly outlining what water bodies the law protects, Congress can ensure that the Clean Water Act once again will comprehensively guard against polluted rivers, lakes, and wetlands. And there's reason to hope that this year - finally - Congress will not only consider the Restoration Act, but it will become law; President Obama indicated on the campaign trail that he would support and sign legislation fixing this problem.

For the same reason, you can expect to hear all kinds of attacks launched against the bill. Opponents -- for whom complying with the Clean Water Act can require installing pollution control equipment, minimizing their discharge, or avoiding impacts to the water body altogether -- will squawk. They'll call it a "land grab"; they'll say it intrudes on states' rights; they'll claim it "expands" the Clean Water Act. Challenge these arguments:

Ask them: do you support protecting the water bodies that had been protected before the 2001 decision? If they say "yes," then they need not worry - that is the express intent of the sponsors of this bill. Most likely, they will be forced to acknowledge that they want to weaken historic protections.
Ask them: don't a lot of states support this bill? Last Congress, the Restoration Act was endorsed by 10 governors and a number of state agencies and associations of state officials.
Ask them: what water bodies do you think you should get to pollute without Clean Water Act scrutiny?

So begins the vigorous debate on the Clean Water Restoration Act. Like I said, it's a good day.

Caring for U.S. water on World Water Day

2009-03-20T22:35:00Z

World Water Day is Sunday. Because I work in NRDC's Water Program, my colleague Melanie Nakagawa encouraged me to offer my two drops, as it were, about the domestic fresh water issues on which we focus.

This isn't as easy as it sounds. Faced with the grim facts about people's lack of access to water and sanitation worldwide, it seems trivial to discuss water-related issues in the U.S., where such problems are rare. Over two and a half BILLION-WITH-A-"B" people in the world do not have access to a toilet and nearly a billion people lack safe drinking water. Meanwhile, most people here use toilets that we fill with drinking-quality water before flushing it away. Why would our water issues matter elsewhere?

I guess it's because here in the United States, we have an opportunity to get things right, to treat water as the precious resource that our friends abroad already see it as, and to demonstrate for the world the ways that water can be used responsibly. That is the focus of our domestic work -- ensuring safe and sufficient water for people and ecosystems. Despite the relative plenty and purity of our water resources, there is much to be done.

In the U.S., we waste water in a variety of ways, all of which we need to change. First, we often treat water as a waste product, as we have designed our cities and suburbs to try to move precipitation into concrete pipes and often out of the watershed in which it falls. Second, we routinely pollute or destroy feeder streams and wetlands -- resources that help purify our water supplies and recharge aquifers. Finally, we use way more water than is required in our homes and businesses, or use drinking water when less pure sources would suffice.

Smarter Stormwater

City planners historically treated stormwater as something to get rid of as soon as possible, and constructed sewer systems to whisk water that falls on the built environment away into rivers or out to sea. This strategy causes multiple problems: stormwater picks up pollution and carries it through storm sewers into our water bodies; rivers receiving stormwater discharges often suffer the effects of faster-moving water, like stream bank erosion; and many cities have combined their stormwater and domestic wastewater sewers, so that rain events frequently cause the dual system to overflow and dump untreated sewage into our waterways.

Because of antiquated systems, we have significant pollution problems. Approximately 850 billion gallons of untreated sewage flows into waterways in the U.S. each year, according to EPA. These and other pollution sources have real impacts as well; for each of the last several years, NRDC has documented more than 20,000 closings and advisories at ocean, bay, and Great Lakes beaches in the U.S.

There are ready solutions that address problems caused by stormwater and that turn rain into a resource. We can enhance the resiliency of urban and suburban watersheds using a suite of techniques that we call "green infrastructure." Green infrastructure means placing green roofs, permeable pavement, vegetated buffers and swales, and rain gardens on the landscape, so that rain infiltrates into the ground where it falls. When that happens, biological processes in the soil purify the water, and vegetation absorbs chemical constituents, while the infiltrated water refills underground water supplies.

Decision-makers have started to embrace these ideas. President Obama signed an economic recovery bill dedicating over $1 billion to green infrastructure and other environmentally innovative projects, and the House passed a water infrastructure bill last week that also prioritizes these techniques. Just this week, my colleague Nancy Stoner testified in Congress to suggest strategies to overcome obstacles to the use of green infrastructure.

Smarter Streams and Swamps

As I've written about here, here, and here, the most critical water pollution problem in the U.S. is that two Supreme Court decisions weakened requirements in the Clean Water Act against unregulated pollution so that they no longer clearly apply to many headwater streams and wetlands.

The legal uncertainty particularly affects water bodies that lack a surface connection to others, or flow infrequently, or are remotely located. The potential for harm is hard to overstate; in the continental U.S., there are some 20 million acres of "isolated" wetlands (an area roughly the size of 25 Rhode Islands), and nearly 2 million miles of streams that do not flow year-round (equal to about four round-trips to the moon). More than 110 million people get drinking water from suppliers drawing some water from one or more of these resources.

For this problem, the solution is simple - Congress can pass a bill that would re-establish clear legal protections under the law for all of the Nation's water bodies. Leaders in Congress have been building support for many years for a bill called the Clean Water Restoration Act to make certain that the Clean Water Act applies to all of the water bodies that the law previously kept free from unlicensed industrial discharges, oil spills, sewage dumping, and outright destruction. We expect that they will introduce the bill again soon, and we're especially hopeful about its chances this year, because President Obama indicated on the campaign trail that he would support and sign legislation fixing this problem.

Smarter Sinks, Showers and Sprinklers

Water supplies across the country are stretched. According to the General Accounting Office, "even under normal water conditions, water managers in 36 states anticipate water shortages in localities, regions, or statewide" by 2013. As my colleagues in California can tell you, it's really dry there right now. Unfortunately, even though we have these very real constraints, people and businesses use more potable water than they need for basic tasks.

If you have a toilet at home made in 1992 or before, chances are that it uses at least 3 ½ gallons per flush. Newer models can do the same job with much less water - the high-efficiency toilets now use only about 1.3 gallons/flush. Other household fixtures like showerheads and washing machines likewise can hog water, or can be replaced with more efficient models. And landscape irrigation can be done a whole lot better. For a quick overview of some of these ideas, EPA has a great site here.

But replacing these fixtures would only be the start of dealing with the problem. First, before water even gets to where it can be used, a great deal is lost through leaky pipes; systems regularly lose 10 percent or more in the distribution system. Second, it makes no sense for us to use high-quality drinking water in toilets and certain other applications at all; instead, re-using water from sinks and showers in toilets, or using harvested rainwater, would be perfectly fine.

In commercial, industrial, and institutional settings, the same holds true. Businesses, schools, and other operations can use more efficient equipment and substitute re-used water for drinking water in a variety of applications. NRDC published an issue paper (specific to California facilities) on this very topic recently.

Although many of these improvements actually save consumers money over the long run (and can also save energy, a topic NRDC explored here), we believe that incentives to make the initial investments will help spur the widespread use of water-saving measures, so we were delighted to see that water efficiency projects were among those specifically targeted for funding in the recent stimulus bill. But these funds alone won't ensure the full deployment of needed water efficiency equipment and techniques. To do that, we believe that the country needs a suite of strategies - tax incentives for the production and use of efficient appliances, water use efficiency standards for the most water-intensive products, well-recognized and up-to-date green certification programs that reward efficient practices, and performance targets for water suppliers to reduce the per capita usage across their service areas.

Taking Out the Trash

2009-02-12T14:39:07Z

Almost every day, I bike to work. On the bike path, I get a close-up view of the Potomac River, which makes up the boundary between Washington, D.C., and Virginia. Though it has improved dramatically since the Clean Water Act passed in 1972, the Potomac is by no means free of pollution. In addition to the contaminants you can't see so easily, below is a picture of the kind of stuff that can get carried into the Potomac when it rains.

But I don't have to travel far to realize how lucky I am to be able to see the Potomac every day. On the other side of D.C. is the Anacostia River - an 8-mile long river that flows from suburban Maryland through the District, where it joins the Potomac. The Anacostia is, according to District officials, "aesthetically and chemically polluted." I'll say -- the river does not meet applicable water quality standards for biochemical oxygen demand, bacteria, organic chemicals, metals, total suspended solids, and oil and grease. In recent years, thanks to efforts by a host of community groups including NRDC, officials in Maryland and the District officially designated the river as impaired by trash, a dubious distinction it shares with a select number of water bodies around the country.

Here are some pictures of what being impaired by trash means, courtesy of my colleague Jim Connolly at the Anacostia Watershed Society.

But today brings very good news for people sick of seeing trash floating in the Anacostia. D.C. Councilmember Tommy Wells and a number of other Councilmembers are introducing the Anacostia River Cleanup and Protection Act of 2009, a bill that would do two basic things: first, it will place a nominal fee - five cents - on each single-use plastic or paper bag from a variety of stores; and second, it will take the revenue generated by the fee and put it in a fund to help pay for Anacostia cleanup, restoration, and education activities. This is a great idea - studies of trash in the Anacostia reveal that plastic bags are a major component of the trash load in the watershed, so creating an incentive to use fewer of them will help target a source of this pollution. In addition, the idea of using the money to directly address the Anacostia's problems makes perfect sense. One particular element of the program will be to help residents get reusable shopping bags, leading to a double-benefit: people don't have to pay for their bags, and throw-away bags aren't added to the waste stream. To learn more about the initiative, you can check out the website set up by the leaders of this effort.

But while this is a great step, the Anacostia won't be clean, or even trash-free, if it's adopted. The Council's bill must be part of a comprehensive solution that addresses trash pollution, along with improved recycling and street sweeping, litter law enforcement, and the use of trash traps and other equipment can be installed in storm drain inlets to catch debris. We've been working hard to make sure that the municipal sewer systems in the region will be required to undertake steps such as these as a condition of their permits to discharge into the River and its tributaries. Our friends at the Alice Ferguson Foundation also have spearheaded an effort to get local leaders to commit - in a "Trash Treaty," no less - to a trash-free Potomac watershed (including the Anacostia) by 2013, and that initiative has really advanced cooperation between jurisdictions on the trash issue.

Beyond trash pollution, the Anacostia needs our help in many ways, especially to deal with stormwater-related problems. My colleague Nancy Stoner lays out a prescription for solving the Anacostia's problems here. When we get serious about getting these important policies in place, I look forward to the experience of biking on the east side of the city as much as I already enjoy the west side.

Safe and Sufficient Water: A Presidential To-Do List

2008-11-25T17:11:13Z

As many of my colleagues are describing today, NRDC and a host of partner groups in the environmental, conservation, and public health community have created a document, called "Transition to Green," which lays out a detailed set of policies that we hope President-Elect Obama will implement. Along with a bunch of other water wonks, I worked on the sections of the document that focus on the Environmental Protection Agency's and Army Corps of Engineers' water portfolios.

Pulling together clean water policy recommendations for a new administration was a daunting experience. Our ideas were too numerous, both because President Bush has presided over the most anti-environmental administration since the adoption of our landmark environmental laws in the 1970s, and because the Nation needs to implement many new initiatives to fulfill the original purpose of the Clean Water Act and to ensure safe and sufficient water for a variety of purposes. There's much to fix, and much to create.

This is no "wish list" -- it is not nearly everything that could be done to repair the damage of the last eight years or everything that should be done to prepare for the years to come. Rather, it represents a determined effort to identify a cohesive set of policies that the new administration should prioritize to demonstrate a real commitment to clean water.

In particular, many of our recommendations reflected a single basic premise: natural aquatic systems should be preserved and enhanced because they are remarkably effective at preventing and mitigating water pollution and flooding, and because they provide important services like wildlife habitat and groundwater recharge. Natural solutions also have an obvious cost advantage - if the ecosystem will clean and store our water for free, we can reduce our need to rely on engineered distribution and treatment systems. So, our document encourages an integrated set of policies:

The administration must first guard against the further loss of headwater streams, wetlands and other waters that comprise and are an integral part of our aquatic systems. It is also necessary to enhance the use of green infrastructure - such as infiltrating stormwater through vegetation and soil to reduce both the pollution carried by runoff and sewer overflows in many urban areas. Additionally, the administration must work to restore natural aquatic ecosystems, like our coastal and other wetland systems, that protect people, wildlife and our economic interests.

In keeping with these principles, we urge both EPA and the Corps to work to restore Clean Water Act protections to a variety of water bodies by pushing for legislation to clarify the law in the wake of a pair of messy Supreme Court decisions and unhelpful Bush administration "guidance," a critical problem I have addressed in prior posts. We also recommend that the agencies undo their destructive 2002 rule change that authorized the disposal of certain kinds of waste - such as the waste generated by the surreal practice of mountaintop removal coal mining - in water bodies. And we identify a number of opportunities that EPA has to integrate green infrastructure into its Clean Water Act programs and plead that the new administration will insist that the Corps makes avoiding - not authorizing -- harm to water bodies its primary clean water mission.

While there are many additional important recommendations, each of which I encourage you to read and hope the President-Elect's transition team will take to heart, we're going to be a lot better off if the new administration recognizes the values Mother Nature provides free of charge, and makes maximizing natural systems the central promise of its clean water policy.

Beating A Dead Zone

2008-10-22T17:47:59Z

A new report released today by NRDC brings together recent information about a widespread pollution problem in the Mississippi River Basin and Gulf of Mexico and calls attention to a legal controversy that has made it more difficult to protect resources in the basin that help reduce this pollution. The report also provides a roadmap for safeguarding these resources under the law.

Each year, enormous quantities of nitrogen and phosphorus compounds from a variety of sources (but largely due to agricultural sources) flow down the Mississippi River to the Gulf of Mexico.

In the summer, this nutrient pollution fuels the growth of algae blooms in the Gulf. When the algae die and decompose, an area of the Gulf's bottom layer of water becomes so oxygen-deprived (or "hypoxic") that fish and many other aquatic organisms either flee or die. In recent decades, the average size of the "Dead Zone" has reached state-sized proportions. For instance, in 2007, the "Dead Zone" was approximately the size of New Jersey.

Scientists have found that wetlands and small streams are capable of removing nutrient pollution before it pollutes major waterways. As the Bush White House - which could hardly be described as an environmental zealot -- recently explained, wetlands in the Mississippi River Basin "retain nitrates and phosphates that would otherwise drain from adjacent farmlands." The administration also noted that ensuring that nutrients pass through such features "will help reduce the size of the hypoxic zone in the Gulf of Mexico and provide habitat, flood protection, and clean drinking water." The obvious upshot of that conclusion is that these resources ought to be protected from harm as much as possible.

For many years, the federal Clean Water Act had protected small streams and wetlands from unregulated pollution or destruction. However, since the Supreme Court handed down a pair of messy decisions in 2001 and 2006, the federal agencies charged with implementing the Act have given unclear guidance about what kinds of water bodies remain protected, and have effectively written off roughly 20 percent of the wetlands in the continental U.S. Courts also have struggled to figure out what kinds of resources are still covered.

As a result, many of our country's smaller streams and wetlands are at risk of being polluted or even buried by mining companies, developers, industrial wastewater sources and others without so much as a Clean Water Act permit to limit the effect that the activity will have on aquatic resources. And some of that pollution could contribute to the Dead Zone.

In light of these facts, NRDC's report proposes a simple solution - restoring the Clean Water Act's protections to as many of those water bodies that it covered before the Supreme Court's interventions, as fast as possible. It shows (I've got to use my darn law degree once in a while) how the existing Act and agency rules can be interpreted today to protect a great deal of the nation's remaining small wetlands and streams, even considering the Supreme Court decisions, but it also highlights the need to bring a permanent solution to the problem the Court created. Only Congress can fully and certainly restore the law's safeguards to our water bodies; fortunately, leaders in both houses of Congress have been fighting for a bill that will do that - the Clean Water Restoration Act.

Will this action alone eliminate the Dead Zone? No. It was here before the Supreme Court screwed up the law, and fixing the law will not bring back lost pollution sinks or make direct cuts in the amount of pollution occurring in the Mississippi River basin. It is, however, critical that we stop the bleeding, not dig ourselves deeper into a hole....use whatever metaphor you like. Much more needs to be done, as I discussed in a previous post, but starting with the obvious solution of reinvigorating the Clean Water Act is seriously overdue.

The Gulf Is Dead! Long Live the Gulf!

2008-07-30T23:22:39Z

This week brought news that the Gulf of Mexico “Dead Zone,” an area of water with very low oxygen that forms each year, was the second biggest on record. That’s not good news for the critters of the Gulf, which find it hard to breathe in water missing its oxygen.

The Dead Zone occurs when the Mississippi River carries water rich in nitrogen and phosphorus pollution to the Gulf, algae feed on these nutrients and grow like crazy, then die and decompose, robbing the water of dissolved oxygen in the process. Nitrogen and phosphorus come from a variety of sources, including wastewater treatment plants, animal feedlots, and agricultural fertilization. These low oxygen, or hypoxic, areas happen in places all over the world, but the Gulf has one of the very biggest.

This year, the early signs pointed to a Dead Zone on steroids – according to researchers, the amount of nitrogen going to the Gulf reached its highest level in nearly 40 years, in part due to the increased production of corn for ethanol. So, the fact that the Dead Zone was not the largest it has ever been was actually a bit of good news -- it wasn’t as big as it had been predicted to be because, according to the scientists who have studied this phenomenon for years, Hurricane Dolly churned up the water in the Gulf enough to avoid breaking a dubious record.

Record or not, it was still a honkin’ big Dead Zone this year – 7,988 square miles, or about the size of Massachusetts. (The researchers who measure this thing often compare its size to that of various states; I prefer something more aquatic – it’s bigger than Lake Ontario – or silly – by my math, it’s about 47 million times the size of the huge Twister mat reportedly constructed by some North Dakota students trying to break a world record.) And it’s many times bigger than the target size – about 1,900 square miles by 2015 – set out in a 2001 “Action Plan” developed by a bevy of state and federal policy makers.

The Dead Zone is an enormous annual reminder of the failure of this plan and of government efforts to rein in nutrient pollution. Just last October, the National Research Council reported that the Environmental Protection Agency missed opportunities to use its legal authority to address pollution problems in the Mississippi River and Gulf of Mexico by establishing nutrient pollution standards and cleanup plans for the watershed.

Today, NRDC partnered with a number of organizations, primarily ones based in the Mississippi Basin, to petition EPA to follow through with policies to respond to the National Research Council report.

It’s essential that EPA take the requested steps, and quickly. But that’s just one needed element of a meaningful plan to kill the Dead Zone. If the feds really intend to meet their goal of shrinking the hypoxic area, they need to get serious about a number of nutrient pollution policies:

As I’ve written about here and here, EPA and the Army Corps of Engineers should stop their efforts to make it easier – in the name of implementing a couple of Supreme Court decisions – to pollute or destroy small streams and wetlands. Guess what? Those water bodies happen to be particularly good at removing nutrients before they get into larger watersheds.
EPA should ratchet down on the nutrient pollution that comes from wastewater treatment plants, which do not now have federal standards for such pollution. Though the agency has been asked to set nutrient pollution standards repeatedly over the last decade and a half, it has yet to act.
EPA should also abandon its current plan to weaken federal rules governing pollution from animal factories. The agency proposed a rule in 2006 that will make it easier for these industrial operations to avoid obtaining pollution control permits, and the administration is poised to finalize the rule any day.
The government must make reducing agricultural fertilizer runoff a much more central priority. In particular, we need to invest in policies that reward farmers who conserve wetlands and other pollution buffers, and we need to implement nutrient control strategies that must be used where producers are producing biofuels in accordance with the renewable fuel standard adopted last year. Right now, as discussed by my colleague, Nathanael Greene, our biofuels policy is on a collision course with water quality concerns, and we need to change that course right away.

Until our leaders take nutrient pollution seriously and address it comprehensively, preventing the formation of an enormous Dead Zone next year and for years to come may depend on the possible appearance of a well-timed hurricane. I think we can all agree that hoping for one natural disaster to counteract another is something short of good public policy.

Unless

2007-11-30T16:25:06Z

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.

Cha-cha-cha, kumbaya, hi-ya!

2007-10-19T00:28:25Z

Today, the Clean Water Act turns 35 years old. How 'bout a round of song?

Happy Birthday to you/Happy Birthday to you/Happy Birthday Federal Water Pollution Control Act of 1972/Happy Birthday to you! (For extra measure, my kids would chime in here with a half-screamed, half-sung, "cha-cha-cha, kumbaya, hi-ya!" and a flying karate chop. Please feel free to join in.)

Wow, thirty-five. It's old enough to be president. That's a bit ironic, because it became law when Congress overwhelmingly overrode President Nixon's veto and because the current President's administration has routinely undermined the law.

To celebrate the day, a House of Representatives committee held a hearing today to talk about the past successes of the Act and the challenges to come. What the discussion revealed is that a good law is necessary to environmental protection, but stopping pollution also requires leaders committed to carrying out the law.

We've had a lot of disappointments from this administration on clean water. Just this week, the National Academy of Sciences found that EPA had failed to take needed steps to protect one of the nation's signature water bodies -- the Mississippi River. A couple months ago, the Office of Surface Mining proposed to change its regulations to authorize coal mining companies to dump waste from mountaintop removal operations in nearby streams. The Army Corps of Engineers has adopted a new set of "quick-fill" nationwide permits for dozens of actvities that pollute or destroy water bodies. And EPA has proposed to weaken the pollution control requirements for animal factories and operations that pump polluted water from one water body to another. This, sadly, is a partial list.

This lack of leadership is part of what NRDC's Executive Director -- who testified at today's hearing -- described as a "midlife crisis" for the Clean Water Act. I love the metaphor -- though it hits a little close to home, it conjures up a mental image of someone that remembers what it was like to be fit, but needs to put down the remote, get off the couch, and go for a walk.

Today, I won't begrudge the government officials who are responsible for making our nation's water pollution policy having a little birthday cake. I do hope they'll take the Act out for a little exercise afterwards.

The Little River That Could

2007-10-16T07:15:37Z

When I was a kid, even though I lived only a couple of miles from the ocean, the most important water body I could imagine was The River. Hardly even a stream, The River was located beyond The Pit in The Field behind my house (my friends and I were obviously uncreative with names), and it marked the outer boundary of my freedom to roam alone.

I expect that you can think of a similar spot -- a small pond, a brook, a marsh. A place where you can fish, skip stones, splash around, or plan assaults on enemy encampments. (Mind you, I had a highly decorated pretend military career.)

Even back then, I probably could've told you that The River was part of a larger system of water bodies and that all of them were valuable and worth protecting, even ones that you couldn't float a boat on. Lucky for me, in 1972 -- a few years before I started exploring The River -- Congress passed the Clean Water Act, guaranteeing that all of the Nation's waters would be protected from unregulated pollution discharges.

Incredibly, today -- nearly 35 years since Congress acted, there is significant uncertainty about what water bodies the Clean Water Act can protect. Two recent Supreme Court decisions have placed numerous water bodies in legal limbo, especially waters that are geographically "isolated" from others or ones that lack permanent flow. In large part, these decisions were based on Congress's use of the term "navigable waters" in the law, but ignored Congressional intent to get away from the limits of navigability in 1972 when it defined "navigable waters" broadly to include "the waters of the United States."

A few examples might help illustrate the problems the Court has unleashed.

The first photo below is a pool I saw recently while hiking in an Oregon state park. This spot is uphill and over a ridge from the Columbia River (second photo), an indisputably navigable water body.

Nevertheless, because the pool doesn't have a surface water connection (at least one I could see at that time), it might be considered "isolated" and be at risk of being declared unprotected. That doesn't mean it's unimportant; it could help recharge groundwater, or serve as critical habitat for aquatic organisms. And this is hardly an isolated (ugh, clean water pun) example: based on government estimates, roughly 20 percent of the more than 100 million acres of wetlands in the continental U.S. are considered "isolated."

Similarly, even though federal Clean Water Act rules have long protected wetlands that neighbor all tributaries to protected water bodies, that's no longer a sure bet. Depending on whose interptetation of the latest Supreme Court case you follow, wetlands near non-navigable tributaries could lose protections unless it could be shown -- through a resource- and time-consuming process -- that they have a significant relationship to some downstream actually navigable water. That means that wetlands like the one below may lose Clean Water Act protections the law has historically afforded them.

The area above is less than 100 yards from the West Branch of Perkiomen Creek (pictured below), which flows through a friend's farm in Berks County, Pennsylvania on its way to joining the Schuykill River (an old-fashioned navigable water). He tells me that the creek floods across the pasture to the wetland periodically, and the entire area is rich in wildlife. On our last visit, I saw flycatchers, a Great Blue Heron, a group of Cedar Waxwings, wild turkeys, and an enormous owl I was too slow to identify. The stream, though not fit for boating at this spot, also has substantial fish life and other critters, provides water to my buddy's cattle, and otherwise is a grand spot to splash around.

In other words, this is an important creek, and although wetlands near streams surely provide significant ecological functions for the creeks they neighbor, guaranteeing that the wetland will be protected by the Clean Water Act will likely require an ambiguous evaluation of a number of factors -- water flow, the movement of pollutants to and from the creek, biological connections between the water bodies -- in order to assess whether the wetland and others like it are important enough to some downstream navigable water.

As a final example, the channel pictured below leads directly to Four Mile Run, a tributary to the Potomac River that flows through my neighborhood in Arlington, Virginia. (That's Four Mile Run in the foreground.) Thanks to the Supreme Court's muddy rulings and unhelpful "guidance" from federal agencies, it is far from clear that this feature is protected by the Clean Water Act, even though discharging pollution into such channels or filling them in altogether would have obvious impacts on water quality in the stream.

The current state of affairs is just goofy. Even if you had a Clean Water Act attorney and a professional hydrologist in tow, it's fairly likely that you won't be able to determine whether your local non-navigable water body is covered by the law by visiting it.

Thankfully, there's a bill in Congress -- the Clean Water Restoration Act -- that will get the goofy out of the law. It will simply specify that the various water bodies that had historically been protected by the law will remain so, and get rid of the nettlesome references to navigability. Lots of folks support the effort, including hunters, conservation-minded Republicans , and governors of Western states. I'm also really happy that Congressman Oberstar, who represents a city I once called home -- Duluth, MN -- is the lead sponsor of the bill.

In fact, with the broad support the bill has received, my various hometowns have been well-served; members representing Braintree and Marshfield, MA (Congressmen Lynch and Delahunt), Brunswick, ME (Congressman Allen), Washington, DC (Congresswoman Norton), Atlanta, GA (Congressman Lewis), and Arlington, VA (Congressman Moran) are sponsors of the bill. Only Congressman Walberg (Battle Creek, MI) and Congressman Forbes (Fort Lee, VA) stand between me and a perfect record! I hope they, and other members, stand up for clean water, so that my kids can count on finding a River of their own.

P.S.: If you've read this far and you're still with me, I'd love to hear about the water bodies in your neck of the woods. Do you have a small pond or wetland that is no good for boating, but great for other stuff? Is there a creek that's often dry but flows like nobody's business when it rains? Please tell me, and if you've got pictures up on the web somewhere please include links -- trust me, I'm a nerd, I'll love it.