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Blind Justices

2010-03-01T18:02:12Z

When I was applying to law schools, I remember writing that I wanted to become a lawyer, rather than a scientist, because that’s where the action was – lawyers would actually make environmental policy. This was ridiculously small-minded of me, and over the course of my career I have come to learn that the worlds of science and policy are inextricably linked. Unfortunately, not everyone learned this lesson -- today’s New York Times has a compelling story of what happens when a bunch of lawyers (in this case, five members of the United States Supreme Court) ignore science.

As I have written here, here, here, here, here, and here, the Clean Water Act – our country’s chief safeguard against water pollution – has been broken by a pair of Supreme Court decisions that suggest the law as it is currently written cannot protect certain kinds of water bodies. The decisions upset the longstanding rule that protected water bodies broadly, including wetlands and other “non-navigable” water bodies that are not connected to other surface waters, as well as a host of small streams (such as ones that do not flow year-round).

That principle was based on basic science -- so basic, in fact, that when I told my then 7- or 8-year-old son what I was working on, he was dumbstruck by the idea that it would be okay to pollute smaller headwaters, given their obvious relationship to the rest of the watershed. Scientists tell us that wetlands, even so-called “isolated” ones, curtail flooding, filter polluted runoff, provide critical habitat for a host of critters, and recharge underground drinking water sources. The smaller streams in the upper reaches of watersheds perform similar functions, and their destruction or pollution has predictable results for downstream waters.

The Supreme Court’s contrary approach was wrong on the law – the decisions overturned previously settled understandings that were faithful to the Act and to how Congress intended it to operate, and that prior interpretation had served the nation well for most of three decades. But the decisions were even worse on the facts; when the Court ignored elementary school science in favor of a legalistic reading, it forced pollution control officials to go through a time- and resource-intensive process to prove that a given water body has a significant enough relationship to a “navigable” one before protecting it. The practical result has been that thousands of water bodies have been cast aside as unprotected, as NRDC and a number of other conservation groups described in a pair of reports, available here and here.

Thankfully, as the Times describes today, there is a ready solution. The Supreme Court said that its decisions were based on the language of the Clean Water Act -- language that Congress can change. A bill called the Clean Water Restoration Act is pending in Congress right now; it would restore protections to the kinds of water bodies that the law previously protected and that today are in limbo. A compromise version of the bill has already passed a key Senate committee thanks to the leadership of Chairman Boxer and Senators Baucus and Klobuchar. The House of Representatives needs to act next, and the Chairman of the relevant House committee, Representative James Oberstar of Minnesota, has vowed to move companion legislation to fix the problem. You can help, by telling Chairman Oberstar that you support moving now to finally fix the law, and by getting in touch with your own representative to urge him or her to support a fix. Please do.

We need to make ourselves heard on this because there are powerful political forces working against it. Several industries that historically have been regulated by the Clean Water Act have lined up to oppose the bill, and have orchestrated a scheme to try to convince Congress to ignore the scientific need to correct the legal problem. As the Times reports:

“The game plan is to emphasize the scary possibilities,” said one member of the Waters Advocacy Coalition, which has fought the legislation and is supported by the American Farm Bureau Federation, the National Association of Home Builders and other groups representing industries affected by the Clean Water Act.

“If you can get Glenn Beck to say that government storm troopers are going to invade your property, farmers in the Midwest will light up their congressmen’s switchboards,” said the coalition member, who asked not to be identified because he thought his descriptions would anger other coalition participants. Mr. Beck, a conservative commentator on Fox News, spoke at length against the Clean Water Restoration Act in December.

Let’s hope that our leaders in Congress can see through the scare tactics to the scary scientific fact that failing to protect our critical water bodies will hurt public health and the environment.

Money Talks, But Does It Swim?

2010-02-02T20:01:00Z

President Obama put forward his proposed budget yesterday, which provides a rare opportunity to look at how the whole federal government is organized and what priorities our leaders see for investments. On the whole, I think those of us who care about safe and sufficient water should be generally pleased with the administration’s direction, especially in the current economic context, but we also should call out a couple of missteps that the budget contains. For present purposes, I’ve focused on EPA’s clean water initiatives; a summary of the agency’s budget priorities can be found here.

First things first – EPA’s budget has to be viewed against the backdrop of the country’s fiscal troubles and the recent history of environmental funding. Even in the best economic times, crafting the budget involves hard choices. But today, when so many people are hurting, it is certainly understandable that the administration will want to make some cuts to programs, even ones that many of us support. Moreover, even when the reductions contained in this budget proposal are taken into account, many programs will receive funding vastly above the amounts allotted to the same programs in the Bush administration.

That said, I’m concerned by the reductions proposed for the Clean Water and Safe Drinking Water state revolving funds (each would take a $100 million hit, so that the overall amount would be reduced from $3.5 billion (FY 2010 enacted) to $3.3 billion). Investments in infrastructure not only help ensure cleaner, more useable streams and other waters, and help utilities provide essential drinking water; they also create jobs, which we sorely need. Cutting these funds is disappointing, as the unmet infrastructure need is enormous. That’s why the Green Budget, which is compiled by a number of conservation groups, recommends funding these programs at a level of $4.5 billion.

We do, however, appreciate the administration's proposal to provide that 20 percent of the funding provided under the revolving funds should be directed to projects such as green infrastructure and water efficiency. This recognizes that such investments have multiple benefits and can actually reduce infrastructure costs.

Apart from the big-ticket item of infrastructure investments, there are a number of other programs worth considering:

The President’s proposal would increase EPA’s funding for activities and regulatory improvements to help restore the Chesapeake Bay (specifically, it would increase the level by $13 million to $63 million). This is welcome; the Chesapeake is a critical resource and it desperately needs federal leadership and action to ensure that nutrient and sediment pollution are brought under control.
Funding to improve the Great Lakes would be cut substantially (from $475 million last year to $300 million), which is unfortunate; the administration has supported a 10-year, $5 billion plan to restore the Great Lakes. More troublingly, even though the administration indicates that they will steer enhanced resources to “fighting incursion of Asian Carp,” a clear plan is need to ensure that this money is spent on establishing a permanent, long-term solution that will prevent the Asian carp from establishing itself in the Great Lakes. For more detail, please check out the blog post my colleague Thom Cmar recently wrote about the need for real and immediate action.
The proposal to direct $17 million in new funding to an EPA program focused on reducing nutrient pollution from runoff in the Mississippi River basin is intriguing. If done well, it could dovetail with the Department of Agriculture’s Mississippi River Basin Healthy Watersheds Initiative. Although these efforts are only just a beginning, it is critical that we start to rigorously implement and evaluate landscape management practices that could help address a long-neglected problem -- nutrient pollution and the resulting Gulf of Mexico "Dead Zone," an issue I have discussed previously.
EPA also addresses the destructive practice of mountaintop removal coal mining in its budget materials, but its discussion is dispiriting. The agency essentially promises continued permit-by-permit negotiations with the Army Corps of Engineers and mine operators over the scope and impact of proposed mines and waste dumps. What we need, however, is fundamental policy change – we need EPA and its sister agencies to act now to revise their regulations and get out of the business of authorizing the destruction of America’s waterways with mining waste.

New EPA Report Highlights Threats to America's Lakes

2009-12-18T22:15:42Z

Most summers, my family rents a house near Little Sebago Lake in Maine for a week. It’s a fantastic escape from the daily grind – we kayak, we swim, we go tubing, we fish, and I get out and go birding. (This area is home to lots of cool birds, including the common loon. IMHO, it is absolutely impossible to get bored no matter how long you stare at such a bird, and no matter how little it does during that time.)

But most of all, we decompress. Lakes are good for that – they’re often calm and quiet, and they let you be the same.

Unfortunately, there’s some disquieting news about the nation’s lakes. Today, EPA released its draft National Lakes Assessment, an attempt to document the physical, chemical, and biological state of our lake resources, by conducting in-depth sampling at roughly 900 lakes. While I will try to resist lake-based puns about EPA’s conclusions (“not every pond is golden,” “not every lake is great,” you get the idea), my read of the report leads me to conclude that the mental image I have when someone mentions the word “lake” – a clear, pristine water body – might often be wrong.

The agency and its partners (a host of state and tribal resource agencies) deserve our thanks for completing this survey. After all, knowing what our problems are will help us identify solutions. And the report does this well – a couple of important stressors to lakes emerge from the information presented, and fortunately there are ready solutions to these problems.

Too Much of a Good Thing – Nutrient Pollution

First, the data show a serious problem with nutrient pollution into lakes, with important implications for public health and for wildlife. Across the country, 42 percent of lakes are in “fair” or “poor” condition based on phosphorus concentrations, and 46 percent are “fair” or “poor” for nitrogen. Although it may sound like the diet you wish your kids would follow, too many nutrients are no good for aquatic ecosystems As EPA says, “[l]akes with excess nutrients are two-and-a-half-times more likely to have poor biological health.”

Nutrient pollution causes algal blooms which are ugly, can produce harmful toxins, and can rob the water body of oxygen when they die and decompose. So, it should be a bad sign that nearly half the lakes sampled have less than “good” nutrient conditions, and an even worse sign that certain regions have much more serious problems. For example, in the temperate plains region (including parts of IA, ND, SD, MN, MO, KS, NE, OH, IN, IL, and WI), 62 percent of the lakes were rated “fair” or “poor” for phosphorus, and 73 percent for nitrogen. In the northern plains (including parts of ND, SD, MT, WY, and NE), 78 and 91 percent of lakes were “fair” or “poor” for phosphorus and nitrogen, respectively. Not surprisingly, lakes in these areas also posed higher-than-national exposure risks for cyanobacteria, a particular kind of algae that can produce toxins; in the temperate plains, 52 percent of lakes posed a moderate or high exposure risk, while 59 percent of lakes in the northern plains had such risks.

Controlling nutrient pollution would reduce these risks to lakes and also clean up other aquatic ecosystems that are suffering the ill effects of nutrient-induced algal growth and oxygen depletion, such as the Chesapeake Bay and the Gulf of Mexico. There are lots of technologies in use by responsible wastewater treatment plants, stormwater managers, and farmers across the country that effectively reduce nutrient pollution, but those approaches are not being applied consistently enough to protect our waterways. Examples are biological nutrient removal by wastewater treatment plants, use of native plants and other landscaping that needs less fertilization by municipalities, and use of cover crops and stream buffers by farmers.

Maybe Clear-cutting the Lakefront Lot for that Cottage Isn’t the Best Idea – Shoreline Disturbance

Nutrients are actually only the second-worst problem for lakes, according to the EPA draft report. The thing that adversely affects the greatest percentage of lakes nationwide, it says, is degraded lakeshore habitat. When EPA looked at the amount and type of vegetation on the shoreline of the country’s lakes, it found that 54 percent of lakes had “fair” or “poor” lakeshore habitat condition. Relatedly, the agency reported that 65 percent of lakes were moderately or highly disturbed by human activity.

Disturbing natural vegetation and landscapes has well-known harmful effects. The EPA report, for instance, references a Wisconsin Department of Natural Resources estimate that “unbuffered developed sites contribute five times more runoff, seven times more phosphorus and 18 times more sediment to a lake than the naturally forested sites.”

Again, however, there are solutions at hand. The key strategy to dealing with the harms that development can cause to water resources is green infrastructure – the use of techniques like rain gardens, porous pavement, water reuse, green roofs, and more to mimic the natural hydrology of developed sites. EPA’s report even makes specific mention of this idea, saying that green infrastructure, or low impact development, “will contribute to groundwater recharge, improve water quality, reduce flooding, preserve habitat, and protect lake quality.”

Today’s report shows that the health of our lakes depends on taking smart action when we use the land around them and when we allow pollution to be discharged into them. It also shows that we’re not yet doing a good enough job.

New Bill Gives Americans Good Jobs and Clean Water at the Same Time

2009-12-17T20:05:57Z

On Wednesday the House of Representatives passed a jobs bill that will dedicate $2 billion for “ready-to-go” drinking water and wastewater projects -- projects that will employ engineers, construction workers, plumbers, architects, maintenance workers, and more. The House also targeted at least 20 percent of these funds for greener projects.

The clean water provisions will bring immediate relief to American workers now when they need it most AND create long-term benefits in the form of cleaner water for drinking and safer beaches for swimming.

America’s water infrastructure desperately needs these long-range investments. In cities across the nation, aging urban pipes and over-taxed sewage plants dump raw sewage and polluted stormwater right into our beaches after heavy rains.

In 2008, there were more than 20,000 days of closings and advisories at America’s vacation beaches because beachwater exceeded public health standards. Even with the closings, swimmers routinely contract rashes, diarrhea, and other GI illnesses.

The good news is that solving these problems will require the work of hundreds of thousands of Americans. Putting people to work in green jobs for water protection and conservation is just plain smart.

Green infrastructure is an excellent example. Green infrastructure – things like urban forestry, street-edge gardens, and green roofs – prevents polluted rainwater from entering drainage pipes, overflowing sewage systems, and releasing untreated sewage and toxic contaminants into our waterways.

But that’s not all. Green infrastructure also creates jobs. A $10 billion nationwide initiative to install green roofs alone would result in almost 200,000 jobs, according to an analysis by American Rivers and the Alliance for Water Efficiency.

Likewise, water efficiency is good for the environment and for employment. Using less water to accomplish the same goals decreases the stress on already burdened infrastructure. But saving water also saves energy. Collecting, distributing, and treating drinking water and wastewater nationwide consume tremendous amounts of energy and release approximately 116 billion pounds of carbon dioxide per year – as much global warming pollution each year as 10 million cars.

In addition to these benefits, the Alliance for Water Efficiency reported that measures to increase water efficiency could generate between 15 and 22 jobs per million dollars invested.

Philadelphia is already beginning to reap the benefits of this kind of investment. As my colleague Nancy Stoner recently blogged about, the city is investing in green infrastructure to deal with its stormwater problem, and analysts of the city’s plan found that these green measures create more opportunities to hire local labor than conventional approaches to stormwater. Indeed, stormwater landscaping and restoration could generate more than 15,250 new entry-level green jobs, in addition to highly skilled construction positions.

Philadelphia’s investments in pocket parks, creek restoration, and green roofs will benefit all residents, not just the workers.

And the new House bill will bring these benefits of cleaner water and meaningful work to more communities around the nation. Now it’s time for the Senate to do the same. The Senate is expected to consider its own version of the bill in early 2010, and I hope our Senators remember that clean water investments will benefit all of us.

Prosecuting Polluters Poorly

2009-09-14T20:19:02Z

It was great to see Charles Duhigg's article about under-enforcement of water pollution laws yesterday. Quite apart from the water angle, which we obviously care a whole lot about, it was wonderful to see that good print journalism is still alive and well. The story included both analysis of pollution and enforcement data and extensive investigative reporting based on interviews with regulatory officials and victims of water pollution. We need more of this kind of reporting.

I have some ideas about why enforcement is failing today. I suspect a fair bit of it is coziness between regulators and the regulated industries, and that problem is worse in some places as compared to others. Also, it can be resource-intensive to bring enforcement actions, and when those resources are cut, it's harder to ensure compliance.

Sadly, enforcement has been a target for funding cuts - a couple years ago, the Government Accountability Office found that EPA's total budget for enforcement fell 5 percent in real terms from 1997 to 2006, with funding to regional enforcement (where most of the enforcement activity occurs) declining 8 percent in real terms. EPA grants to states for environmental program implementation dropped 9 percent in real terms over the same period. Consistent with these declines, "EPA reduced the size of the regional enforcement workforce by about 5 percent over the 10 years," a problem exacerbated by the fact that "[t]hese reductions in funding occurred during a period when statutory and regulatory changes increased enforcement and other environmental program responsibilities."

But another significant problem is the practical difficulty of doing enforcement today, in the wake of two Supreme Court decisions questioning which water bodies the Clean Water Act even covers, a subject I've written about here, here, and here, among other places. These opinions have injected such uncertainty into the implementation of the law that even career enforcement professionals do not know with certainty which water bodies are covered by several pollution control programs in the law. Because of the Supreme Court's misapplication of the Act:

In a speech at the National Press Club, EPA Administrator Jackson indicated that some EPA staff were spending as much as 40-60 percent of their time on figuring out whether various water bodies were protected by the law. (Video here)
Because of conflicting lower court rulings following the Supreme Court decisions, the legal standard for determining whether a water body is protected is different in certain States.
Earlier this year, multiple government agencies wrote to members of Congress that "[c]urrent agency guidance implementing the decisions contemplates complex findings that sometimes result in jurisdictional determinations that lack consistency across the country and can be time-consuming and expensive. Delayed and unpredictable decisions are frustrating and costly to persons seeking approval of projects related to these waters."

A recent summary by EPA's Office of Inspector General underscores these points; the internal watchdog interviewed EPA personnel about the challenges to implementation of the Act caused by the Supreme Court's decisions. EPA enforcement professionals reported that the most recent decision "has been a major resource drain for the program," that the decision "has created a lot of uncertainty with regards to EPA's compliance and enforcement activities," and that "it has become 'almost impossible' for EPA to refer" certain kinds of Clean Water Act cases to the Department of Justice. The report also noted that "[a]n estimated total of 489 enforcement cases . . . have been affected such that formal enforcement was not pursued as a result of jurisdictional uncertainty, case priority was lowered as a result of jurisdictional uncertainty, or lack of jurisdiction was asserted as an affirmative defense to an enforcement action."

Thus, fixing this problem is critically important, and EPA's first enforcement priority should be working with Congress to pass the Clean Water Restoration Act, which will ensure that all waters of the U.S. are protected.

Beyond the problems the Supreme Court created, a large portion of the pollution sources with Clean Water Act discharge permits consist of stormwater systems, large animal feedlots, and other sources regulated for the most part under general permits that lack clear, enforceable standards. The history of the Act demonstrates that a regulatory system works best when compliance with objective standards is required for all discharges, and all facilities are required to be permitted. Self-monitoring and self-reporting requirements (verified as needed by outside inspections) can promote compliance and ease burdens on enforcement authorities.

An example of how to do it wrong is EPA's rule governing water pollution from concentrated animal feeding operations, a regulation that fails to clearly identify the facilities that need to obtain permits and which even neglects to gather information from facilities that claim not to need such permits, in order to substantiate their claims. NRDC and other groups have challenged this rule in a case now pending in federal court, but EPA can - and should -- address these problems by revisiting the rule, and putting a more protective and enforceable rule in place.

Here's hoping that the New York Times' incredible reporting spurs EPA to address these and other failings in the enforcement program.

Internal Watchdog Says EPA Must Get Busy Protecting Waterways from Nutrient Pollution

2009-09-01T15:19:18Z

I recently attended a conference about the health of the Mississippi River, and I was struck by a compelling analogy my colleague Matt Rota of the Gulf Restoration Network used to describe the giant Dead Zone in the Gulf of Mexico. The Dead Zone is a massive area in the Gulf where nutrients (nitrogen and phosphorus, primarily) from the Mississippi fuel biological processes that suck much of the oxygen out of the bottom layer of water. These nutrients come from agricultural runoff, lawn fertilizers, sewage treatment plants, industrial livestock operations, and other sources.

Matt's analogy went something like this: imagine if there were a gas cloud that covered an area of the U.S. as big as the state of New Jersey that would cause all of the critters that lived there to flee or die of asphyxiation. People would see it as an obvious environmental crisis and demand action, and the government would surely step in, right?

Right, but apparently not so much when the problem is offshore.

This week brought news that the Environmental Protection Agency has failed to treat the Dead Zone, which in some summers is in fact as big as the Garden State, and which forces fish and other aquatic animals to run or swim for their lives, is not being treated like the critical problem it is.

This declaration came from the EPA's own internal (but independent) investigator, the Office of Inspector General. The IG issued a report that sharply criticized the agency's failures to take the lead in establishing numeric limits for nutrient pollution into critical waterways.

Under the Clean Water Act, States ordinarily take the lead in setting standards for their water bodies, a process that involves figuring out what kinds of uses each waterway should support (like fishing, water contact recreation, and drinking water supply), and then setting limits on the amount of pollution that can be in the water in order to ensure that those uses can be accommodated.

In turn, those standards are the foundation for clean-up plans when the standards aren't met, and they help State water officials determine how much pollution a given industrial or municipal discharger must remove from its waste stream. Given these functions, one can easily see the benefit of a numeric standard, as opposed to the alternative -- a narrative standard. While water quality officials can take a numeric standard (X milligrams per liter, for instance) and establish regulatory requirements aimed at achieving that number, it's far harder to write a cleanup plan or a discharge limit to address narrative prohibitions. For example, some States prohibit unnatural levels of algae, but figuring out how much is natural and how much is unnatural is very subjective, and that kind of ambiguity often leads State regulators to throw up their hands and do nothing.

With nutrient pollution, the State-led process of developing numeric standards has broken down. The IG report finds that fully half of the States had no numeric standards for nutrients by the end of 2008, even after years of EPA imploring States to put them in place.

In the Mississippi basin, the news is worse. Of the ten States that contributed the most nitrogen to the Gulf of Mexico, only one -- Tennessee -- had any kind of numeric standard, and seven of the ten States responsible for the most phosphorus delivery to the Gulf had no numeric standards. The IG report indicates that one reason for this failure is that cleaning up nutrient pollution might lead to tougher restrictions on certain businesses, which could be politically unpopular. In the same vein, the report found that States essentially disregarded downstream impacts (like the Dead Zone) in the standard-setting process; one can imagine that it is hard to convince decisionmakers in Iowa, Indiana, or Illinois that they need to strictly control in-state sources of pollution that cause harm off the Louisiana coast.

The IG's solution is basic -- EPA must lead where the States have fallen behind. The agency has the authority to establish necessary standards when States do not, and EPA can better withstand parochial political pressures. The IG recommends that EPA identify "significant waters of national value" that need numeric standards, and establish the standards, taking into account the needs of downstream waters.

This is welcome advice, and it is consistent with the recommendations of the National Research Council a couple years back (a user's guide to that report is available here), and a petition that several conservation groups, including NRDC, filed last summer, asking EPA to strengthen its efforts on nutrient pollution.

Whether EPA will step up, however, remains to be seen; its reaction thus far to the National Research Council report and our groups' petition has been to consider the subject a whole lot, but not take real action. Worse, its reaction to the IG report's push for EPA to set standards was a model of bureaucratic double-speak: "we believe a greater benefit will be derived by developing a strategic approach to leverage resources and existing authorities to get more numeric nutrient water quality standards in place."

That approach won't cut it. EPA Administrator Jackson is fond of saying that, in the Obama administration, EPA is "back on the job," and in many ways that is obviously true. However, with regard to dealing with the Dead Zone, and taking a leadership role where States have proven unwilling or unable to set nutrient standards, the agency simply needs to do the job. The Administrator came to EPA from New Jersey -- she must know that a problem that is literally the size of that state has to be dealt with now, even if it's happening out in the Gulf of Mexico.

Mountaintop, Flat-top . . . Let's Call the Whole Thing Off

2009-08-11T16:18:10Z

One of the great things about our country is that the government often must give the public the opportunity to comment on something it is planning on doing, and then must actually consider those comments in making its final decision. One of those opportunities is presently available and it pertains to a critically important issue.

Mountaintop removal coal mining, which commonly shears off the tops of mountains and dumps the waste in nearby valley streams, is a horrifying industrial practice (as evidenced by the pictures my colleague Rob Perks has posted online). Coal companies conduct mountaintop removal operations today with the blessing of the Army Corps of Engineers, the federal agency responsible for issuing permits for discharges of "fill material" into the nation's waterways.

Until recently, one mechanism by which the Corps authorized these mines was Nationwide Permit (NWP) 21, a fast-track Clean Water Act permit for "fills" associated with certain coal mining activities. A nationwide permit is one kind of "general" permit, which gives pre-authorization for particular discharges, and which the law says is only supposed to be used when the environmental impacts are minimal. In light of this requirement, using a general permit to authorize mountaintop removal valley fills is simply arbitrary. In March, a federal court said as much, in a case brought by NRDC, Coal River Mountain Watch, and the Ohio Valley Environmental Coalition (thanks to the incredible legal work of Joe Lovett of the Appalachian Center for the Economy and the Environment and Jim Hecker of Public Justice). As a result, the court struck down the permit.

In the wake of that decision, the Corps is asking for public comment on its plan to suspend and then modify NWP 21 to prohibit its use in Appalachia. What that would mean is that the streamlined process for getting Corps' permission to bury headwater streams with coal mine waste would be replaced by an individual, or case-by-case, process. That individual permit process is certainly better - it provides for public input on proposed projects, for instance - but it is nevertheless a mechanism for allowing mountaintop removal to continue.

You can comment on the Corps' proposal by clicking here. Comments must be submitted by Friday, August 14th, so now is the time to weigh in. If you can spare the time to comment and are in the market for suggested points to make to the Corps, here are a couple:

We need to end mountaintop removal. The Corps must stop permitting waste dumps in Appalachian streams and other water bodies. Doing so means reversing the Bush administration's 2002 "fill rule," which classified a host of solid wastes, including mining wastes, as "fill material" that the Corps could allow to be placed in the nation's waters. The Obama administration should begin the process of undoing this terrible rule right away.
In the meantime, the Corps should end the use of NWP 21 altogether. The permit should never have been issued, given the enormity of the impacts and the inability of so-called "mitigation" efforts to reliably ameliorate those harms. It therefore should not be allowed to be used in any fashion; the court ruled that the permit was unlawful, and halting it in Appalachia is only a partial response.

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.