Political battles are swirling over Clean Water Act

Changes are in the wind for the powerful Clean Water Act, as officials with the Environmental Protection Agency prepare to step up enforcement to protect the nation’s water supplies.

Regulatory and even legislative changes are in the works, and the law could become a tool in dealing with greenhouse gases related to climate change.

Coming Together

The latest signal that something is afoot is the launch of a new blog this week by the EPA. It is called “Coming Together for Clean Water.”

The EPA is “seeking public input on how the agency can better protect and improve the health of our waters…” according to a news release. “The feedback received on the online forum will help shape the discussion at EPA’s upcoming conference in April, ‘Coming Together for Clean Water,’ where we will engage approximately 100 executive and local level water leads on the agency’s clean water agenda.”

Three topics are mentioned: “The Watershed Approach,” “Managing Pollutants from Nutrients,” and “Stormwater Pollution.”

It is interesting to see how people in various parts of the country are responding to these topics and how local issues play into the national overview. Some folks seem fairly alarmed and are demanding that the EPA take firm actions. Others have responded by spelling out technical solutions or offering case studies about how the EPA has failed in the past.

Enforcement plan

In October, the EPA released what is now called the Clean Water Act Action Plan. It calls for greater and more consistent enforcement nationwide of the clean water law under three strategies:

  • Target enforcement to the most important water pollution problems
  • Strengthen oversight of the states
  • Improve transparency and accountability

Dealing with jurisdiction

The Clean Water Act of 1972 made it unlawful to discharge any pollutant from a point source into a navigable body of water without a permit. EPA’s Watershed Academy offers an informative introduction to the Clean Water Act.

One of the key issues before Congress right now is the definition of “navigable waters,” which had been extended to include source water and associated wetlands. In 2006, the U.S. Supreme Court issued five separate opinions that reined in the EPA’s jurisdiction by saying waters of the United States extend only to “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and to “wetlands with a continuous surface connection to” such relatively permanent waters.

The EPA has been struggling to define its jurisdiction ever since. Environmental advocates would like to see EPA’s jurisdiction restored to what the agency previously assumed it was.

A bill by U.S. Sen. Russell Feingold, D-Wis., was introduced last year to include all tidal waters and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing… “

The New York Times described the problem triggered by the Supreme Court ruling in a series called “Toxic Waters,” which included these quotes:

Douglas F. Mundrick, an E.P.A. lawyer in Atlanta: “We are, in essence, shutting down our Clean Water programs in some states. This is a huge step backward. When companies figure out the cops can’t operate, they start remembering how much cheaper it is to just dump stuff in a nearby creek.”

James M. Tierney, New York State assistant commissioner for water resources: “This is a huge deal. There are whole watersheds that feed into New York’s drinking water supply that are, as of now, unprotected.”

About 117 million Americans — more than a third of the U.S. population — get their drinking water from intermittent sources that may not be covered by the Clean Water Act, according to a report by the EPA.

EPA Administrator Lisa Jackson has called for a legislative solution in Congress, but Feingold’s bill faces opposition from farmers and industrial groups who have stirred up fears of a “government takeover” of all water supplies. Agricultural organizations, for example, say they don’t want the EPA involved in measuring pollutants in their irrigation ditches before the water goes back into public streams.

Water and climate change

Before I leave this complex subject of the Clean Water Act, I want to mention one other major new development related to climate change. There’s been plenty of discussion about regulating carbon dioxide as a pollutant under the Clean Air Act, but now the EPA has agreed to consider regulation under the Clean Water Act as well.

The agreement settles a lawsuit brought by the Center for Biological Diversity, which raised concerns about ocean acidification caused by CO2 off the Washington Coast. I talked about this in Water Ways in some detail last May.

EPA is expected to publish has published (3-22-10) in the Federal Register an approach that involves a particular provision of the Clean Water Act, which requires states to identify threatened or impaired waters and to set limits on pollutants going into those waters.

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