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Posts Tagged ‘Clean Water Act’

Hi all!

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I think everyone was busy last week worrying the NSA is judging them for not calling their grandmother more often.  I know I was.  Which is why it took me a bit to get this post up, and also why so many fascinating things happened in the energy and climate world that I had to talk about them all in one post.

First of all, our least favorite pipeline that doesn’t even exist yet is back in the news.  The Sierra Club has quietly taken the debate over the Keystone XL pipeline over to the judicial branch.  The litigious environmental nonprofit (for those of you who don’t know, Sierra Club has acted as plaintiff for some of the nation’s most pivotal and groundbreaking environmental lawsuits – it’s one of their specialties as an organization) filed suit against the State Department last week regarding the sketchy-as-all-hell (from what I’ve read) environmental impact statement that the agency issued about the pipeline.  The impact statement – which suggests the pipeline will have no negative impacts – was prepared by a third-party contractor that has an active membership in the American Petroleum Institute, which Sierra Club and other environmental groups widely regard as evidence of a conflict of interest.  Perhaps more critically, the State Department did not respond to requests to produce documentation proving that the department screened for such a conflict of interest.  The lawsuit is seeking access to those documents and extension of the public comment period for the agency to finalize the determination so that the documents can be considered.  In the continued debate, Al Gore weighted in on the pipeline in a recent interview, stating that the project was ‘an atrocity.’  

Meanwhile, climate change is happening, you guys.  A five year study by FEMA that was just released has predicted a 45% increase in flooding in the United States during the coming decades – as a result of climate change.  (Except in North Carolina, of course, where flooding and climate change is illegal.  I suppose all the hurricanes will have to stick to Florida and South Carolina this year?) FEMA, which manages disaster relief, is expecting to have to insure 80% more properties, with a 90% increase in the average cost of a claim when filed.  But, this is all totally worth it, because it was definitely too expensive for us to regulate carbon through a cap-and-trade or tax system, and it was also definitely too expensive to make some of those fossil fuel companies maybe pay a little instead of collecting government subsidies.  What? Sarcasm is the lowest form of wit?

Fine. I’ll end on a good note.  Behold, Robert Redford for NRDC:

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Still better looking than you.

Redford, an environmental activist and partner to National Resources Defense Council, has put together a series of short ads calling for action on climate change and clean energy initiatives.  You should watch them.  Because it’s Robert Redford.  And, he’s got something really important to say.  And then you should send them to everyone you know.

That’s all for now folks.  I’ll be back next week, and maybe I’ll be less cranky.

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I never expected that I would be a tribute writer, but recently that’s how its panned out (I hope you read my posts on Silent Spring, and Russell Train).  In this latest tribute, last week, the Clean Water Act turned 40!

There’s no doubt that the Clean Water Act has led to cleaner watersheds and reduced pollution in our nation’s waters.  To date, 65% of our nation’s waters are swimmable and fishable (that’s the Act’s classifications).  What many don’t know is that the Clean Water Act was passed through amendments to the Federal Pollution Control Act of 1948, and it was a result of several disasters such as the famous burning of Ohio’s Cuyahoga River.

One of the goals of the Clean Water Act was for all the nation’s waterways to be fishable and swimmable by 1985.  News flash, we haven’t met that goal.  The Act gave authority to the Environmental Protection Agency (EPA) and to states to set pollution control standards to restore and monitor water quality.  One of the greatest aspects of the Act is that it allows public citizens to file suit on violators of the Act.  Many people don’t know this!  I’ve heard from EPA officials that the Clean Water Act is the people’s act.  Our nation’s waterways belong to us.

A few successes of the Clean Water Act include better overall water quality to over 60% of the nation’s waterways, more waterways that are swimmable, and restoration of major waterways such as the Hudson and Cuyahoga Rivers and Lake Erie.  I think the OMB article only touched on a few of the Act’s successes and I’m sure you can do a Google search and find more info.  Although I only like to highlight positive sustainable practices in my posts, I think it’s only fair to highlight that there are future challenges ahead for the Clean Water Act.  Factors such as population growth and urban development have led to runoff mismanagement,  particularly water from wet weather events, that are not addressed in the Clean Water Act.  Wastewater in natural gas fracturing (fracking) wells are also not included in the Act. Just today I heard that this current Congress has posed approximately 200 attacks on the Clean Water Act.

But, this is a tribute, and clean water will win.

Clean pipe discharge!

There are so many great on-the-ground partnerships taking on water issues, a few that come to mind include The Urban Waters Federal Partnership, Groundworks USA, and the River Network.  Those who question and attack the Act must not want fishable and swimmable waters for their families.  Maybe they just take it for granted, I think that’s the case.  Cheers to 40 years of success and to another 40 years of greater success.  Now go for a swim!

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Florida is a special place – Disney world, alligators, South Beach, the pan handle, and gorgeous beaches.  In the enviro realm, water nutrient issues in Florida are very hot (aka many Florida officials are saying the federal EPA better mind their own businass) right now.  By “nutrient issues” I mean phosphorous and nitrogen (N&P) pollution (stay with me now) from farming and city runoff in many of Florida’s waterways; each state has its own targets and pollution limits according to the Clean Water Act (the grand daddy law from the 70s that protects our nation’s waterways and drinking water).  Florida has exceeded its permissible N&P limits, so the federal EPA stepped in to slap them on the wrist, but Florida said you can’t do that because you don’t have jurisdiction in our state. Anyway, that’s in court now.  Back to the point, I have good news about the Everglades!

How the Everglades are meant to look, untouched.

The recent announcement has left EPA saying “this is a milestone for America’s Everglades.”  An $880 million plan to improve water quality in the Everglades has been approved and it includes a 12-year clean up (yikes that’s three more election cycles).  Pollution from farming practices and nearby urban centers has left the Everglades with poor water quality which is a major source of drinking water for South Floridians.

The Everglades are home to some of the most unique species in the U.S.  The new cleanup plan is a response to a lawsuit from….1988!  The plan includes new water treatment and stormwater infrastructure to address some of the polluted waterways in the Everglades.  Glad to see that we can still preserve our country’s land.  Many of our lands, waters, and species are interconnected and are affected by any change whether you can visually see it or not. Cheers.

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So, amid the flapping currently surrounding the Supreme Court about health care legislation, it might seem impossible that the high court could have been worrying about anything else this month….or even practically this year.  Or really, ever, since people seem to be getting pretty upset over health care.  However, there has been a lot going on in the judicial world, and some of it should catch the attention of enviro folks. I’m going to do my best to put on a legal hat and discuss this, although those of you who might be reading that have actual formal education in the law (hi, Carol!!! how’s law school?), feel free to weigh in!

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OK, so it's not exactly a hat. But if we were in Britain, I'd totally go to law school just for the sweet wig.

Meanwhile, back in the US, the people in this big building here:

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Ever wonder what their heating bill looks like?

…they handed down a decision that was reported in POLITICO last week regarding whether or not the process of judicial review can be applied to rule-makings by an agency – specifically, the EPA.

The case went something like this: an Idaho couple were told by EPA to reverse grading on their land after a determination by the agency that their property included wetland area protected by the Clean Water Act.  The work they performed was done without the necessary permit that should have been obtained.  As it stood, the couple had to means to challenge the EPA determination except to simply refuse to pay fines – which accrued daily with each additional refusal to pay and added up to millions.

The new determination by the court did not decide this particular case, but it did provide a potential out for this couple and anyone who might face a similar situation in the future.  The Supreme Court ruled that determinations made by the agency are subject to judicial review, the process by which a court can strike down a decision made by the executive (or legislative) branch of the federal government if a judge finds that the decision is arbitrary, unconstitutional, or outside the jurisdiction of the law.

For those of you unfamiliar with the law (probably most everyone reading this), wetlands are protected under Section 404 of the Clean Water Act.  EPA and the Army Corps of Engineers have wide berth when it comes to regulating the discharge of waste material as well as dredge-and-fill operations having to do with wetlands.  What is most debated, though, is the fact that the bodies of water (whether river, lake, stream, creek, wetland, whatever) protected by the Clean Water Act must be “waters of the United States.”  Based on this, conservatives tend to argue that EPA has no business regulating small bodies of water, water bodies that cut through private land, farmland, etc, and that the reach of “big government” and “regulations” into people’s lives should be limited.  Hence the objection raised by the Idaho couple: if it’s private land, what business does EPA have determining that it’s a wetland? And what can I do if I disagree?

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To wetland or not to wetland, that is the question.

What business indeed?

The problem with this – and virtually all jurisdictional limits that are placed on regulations – is that media-based pollutants tend to be somewhat of a nuisance when it comes to their willingness to respect municipal and regulatory boundaries.  It might be your stream, on your land, which is private property, and within your right to stand around pouring paint thinner into it all day long.  But what happens when your stream connects to a larger body of water, say, the Potomac River?  Are you just polluting your own water?  Or are you polluting water that is, through the interconnectedness of the watershed, water of the United States?  Is all water considered water of the United States?  Or is it just not your fault if you pollute, and it goes down river, becuase, well that’s somebody else’s problem – this is America, and we have rights and freedom?

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Or maybe you just never really liked wetlands much anyway.

I’m not trying to be one-sided here, but we’ve got a fundamental impasse.  On one hand, the law clearly isn’t written to extend to private property.  On the other hand, we can’t protect our main bodies of water if there are smaller problems on all the bodies of water feeding them, compounding the issue.  That’s bailing water out of the leaky boat without plugging the hole.

And stepping back a bit further: whose determination is it, anyway?  In this specific case – which allows for judicial review of EPA’s determination of what is a ‘wetland’ – who should be the one making the decision?  Which is the fundamental difficulty with most environmental regulation: there are always two ways of looking at the problem.  One is the science, and the other is the policy.

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A team of cutting-edge wetlands scientists from the U.K.

 

To take the first angle, clearly a judge – an expert in the law of the United States – is most equipped to determine whether or not EPA is keeping with the spirit of the legislation.  On the other hand, that judge has no training in what precisely a ‘wetland’ is, nor are they educated enough in critical topics such as ecology and hydrology to know how that particular tract of land fits into overall efforts to protect and ensure water quality.

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Don't worry - he's just a lab tech.

Agency scientists, whose entire careers are based on making these decisions, would obviously have the training, expertise and knowledge to make the most educated scientific decision. Is it then simply the job of lawyers arguing one side or the other to call the most qualified witnesses?  Is it the job of the agency to give the judge a crash-course in water quality and wetland science? And even if the science says that the land is worth protecting, is that a good policy?  Where does the science end and the policy begin?

 

 

 

Which leads us to a larger question – maybe even a moral question: Whose interests are we most concerned with protecting, anyway?  Do we err on the side of protecting the rights of the individual to alter, modify, dispose of, or destroy their property as they see fit? If I purchase a priceless artifact – say, a work of art that cannot be replicated or reproduced – is it then within my rights to burn it?  Or is there a moral obligation here to structure laws and regulations in a way that protects and ensures the good of the general public?  If my modifications will cause harm to others and detriment to the overall water quality of an area – arguably ‘harming’ others – is that still within my right?

These are big questions my friends, and ones which I suspect we will be pondering for years to come.

Or at least until this guy comes up with an answer.

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