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Fixing the Broken Clean Water Act


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View Trip Van Noppen's blog posts
17 February 2009, 5:10 PM
 

The Clean Water Act, despite being one of our nation's most potent environmental protection laws for three decades, has an Achilles' heel—a one-word weakness that the U.S. Supreme Court has expanded into an enormous loophole.

In decisions handed down in 2001 and 2006, the Supreme Court seized on that word—"navigable"—to make rulings that neither friend nor foe of the Act could predict, and none of us can live with. Effectively, the Supreme Court broke the Clean Water Act by saying Congress meant that the Act's protections apply only to "navigable" waters when it passed the Act to eliminate water pollution back in 1972. Therefore, only an act of Congress can mend this potentially fatal injury.

Fortunately, just such a bill is before Congress, called the "Clean Water Restoration Act." Introduced under an unfriendly administration, this proposed law is much more likely to be passed now. It will eliminate the word "navigable" from the Clean Water Act and replace it with the more familiar legal phrase, "waters of the United States," so that all waters—not just those that are navigable—are protected.

For more than 30 years we relied on this remarkable law to stop and reverse decades of unrestrained industrial and agricultural pollution of our waterways. As a success story, the Clean Water Act is almost without equal. We have seen abundant life return to the Great Lakes, the number of rivers and lakes made safe for fishing, drinking and swimming has more than doubled, our rivers no longer catch on fire, and our coastal waters are measurably freer of chemical pollutants.

Earthjustice has effectively wielded this law many times over the years. From protecting drinking water in Florida threatened by toxic algae blooms caused by uncontrolled discharges, and efforts to control urban pollution in the San Francisco Bay and Puget Sound, to actions to end raw sewage discharges in the Anacostia and Potamac rivers in our nation';s capitol, we have used the law to make communities' waters safer and cleaner.

Despite the successes, however, today our waterways are in jeopardy as never before since the Clean Water Act was adopted. As many as 60 percent of streams and rivers, and 20 percent of wetlands, might lose Clean Water Act safeguards because of the court rulings and subsequent actions by the Environmental Protection Agency. Polluters argue that the Act no longer protects numerous wetlands, streams, rivers, lakes and other waters that historically were covered.

And the government has been listening to those arguments. Since the 2006 Supreme Court ruling, the EPA stopped enforcing hundreds of alleged violations of the Clean Water Act, downgraded others in priority, and has faced frequent attempts by polluters to escape legal responsibility. An EPA memo last year revealed that the Bush administration failed to pursue 300-plus water pollution cases as a direct response to the 2006 Supreme Court ruling.

The Army Corps of Engineers, meanwhile, is leaving water bodies across the country unprotected. Since 2001, we estimate that over 10,000 wetlands, streams, ponds, rivers, and other waters were polluted or filled and destroyed without federal limits.

Waters at risk from the two decisions are abundant, and the consequences of their pollution, severe. These undefended waterways, according to the EPA, include headwaters, intermittent streams, and ephemeral streams in the watersheds that supply drinking water for more than 110 million Americans.

The Clean Water Restoration Act will restore the traditional scope of protection intended by Congress in the 1970s when the Clean Water Act was assembled. Through it, Americans will again have the safeguards they need to achieve the goal of restoring and maintaining the chemical, physical and biological integrity of the nation's waters.

In just a few days, Earthjustice will launch a campaign to get public support for the Clean Water Restoration Act. The ability of citizens and of the government to enforce our clean water laws depends on it. I urge you, when the opportunity comes, to immediately contact your congressional representative and tell him or her to support this vital piece of legislation.

I am for clean water just like every one else, but I don't think that passing another law or "correcting" a law is going to change much. There are several rivers close by and both of them have debris dumped in them frequently. It's done by local residents who don't care about the quality of the water in the rivers. I live in a rural area in Ohio and there is no way that anyone is going to be able to police every river bank in the country to make sure that someone isn't dumping something illegal into it. I certainly don't think that it is right, but until people are educated about the problem dumping causes there will not be a change no matter what legislation is passed. And as far as agricultural run off goes I think that it is a big problem, but you have to look at it from the farmers point of view. He is only trying to make a living and plant as much as he can on his acreage. I think that there should be some guide lines in place that a barrier between fields and water ways be established, but then again it has to come from individual responsibility and not legislation.

Water is the most essential element in this world, if without clean water we can't survive, so let us try to maintain the cleanliness and purity of water, avoid such things that can pollute our water sources. thanks for the post.
-mike-

that is really nice article to make it familiar to me thnks.

We need to keep our water and air clean for the future of our children and our childrens children.

I have some ideas. I think the biggest source of water pollution is Industries. Who are releasing large amount of hazardous waste into our water resources. In order to do proper treatment of this waste water consultant like http://www.jnblabs.com/ must be contacted. About the waste that are producing through our daily usage. I think ordinary peoples are not a selfish as our bureaucrats. We can control it by spreading knowledge about it. Agriculture pollution is also a major problem. By using proper methods we can control it. Imagine a world for our future generations if it continues. I agree things are better in USA or other European countries but In Asian countries it is worst and since countries is in this world we should also consider them. We are the one who are responsible for destroying our world and we have to make it better

Please do what you can to make our waters clean and to keep them that way. Enforce harder punishment for those ignorant people who do not respect the water and marine life. I am concerned that we are losing precious time and need to act now. Please help make a difference.

Please remove the loopholes in the Clean Water Act and enforce this act, as was the original intention of those who drafted this legislation. Nothing is more crucial than clean water, and we will realize this to our peril at a later date if we don't act now!

Back in the more enlightened "dark ages", the term "navigatable waters" was defined as any water which ultimately reaches the sea. This definition was used to defend the right to float a canoe in a stream over the objections of owners of the banks, as well as in prosecuting polluters.
While a Congressional action may be needed, the return to this old definition by the courts might be quicker.

I hope Congress makes this change and that it will allow us to protect more wetlands.

Water, crucially important to survival, must be protected from further pollution, restored from present conditions and preserved at all costs.

DEAR TRIPP,
WHERE HAVE YOU BEEN ALL MY LIFE ??? I'VE SEARCHED FOR DECADES FOR A MAN WHO LOSES SLEEP WORRYING ABOUT ENVIRONMENTAL ISSUES...I'VE BEEN LAUGHED AT AND TOLERATED SINCE I WAS QUITE YOUNG FOR MY LOVE OF NATURE AND HER CREATURES....NOT A BIG FAN OF "US" THO'...PERHAPS THAT'S WHY...ANYWAY, I AM PROUD, THO' BROKE AND JOBLESS, TO DO ANYTHING I CAN TO ASSIST.....REMIND YOUR WIFE, IF YOU HAVE ONE, THAT THERE'S AT LEAST ONE WOMAN OUT THERE WHO THINKS YOU'RE PRETTY GREAT!!! SINCERELY, MELINDA

I have regularly wondered who gave you, me or anyone the right to pollute. I regularly see the toxification of creeks and rivers caused by farm and residential runoff, industrial dumping and denuding of stream side woodlands. Who told these people it was OK to pollute our waters and lands? I can't understand why industries and people feel that polluting is OK... it's not and never has been. The convenience of dumping your crap into our waterways is not now or ever allowed. We are all culprits or more correctly contributors to some extent or another so let's be a little more neighborly and find a way to more appropriately dispose of our waste or don't create it to begin with. Exactly the same issue has existed with nuclear waste since it was first created. If you can not appropriately and safely dispose of your wastes than don't create them until you can. I feel UTOPIA coming on.

And a word to Senator Corker - even if you don't have sense enough to vote for the stimilus package - please vote for clean water!!!

We need to keep our water and air clean for the future of our children and our childrens children. The future is resting on our actions and dissions!

Not being familiar with the ins and outs of the court decisions and rulemaking or lack thereof, I wonder how pollution of a headwater could be exempt, since that pollution will eventually reach a navigable stream. This is not at all a criticism of Earthjustice's efforts to restore robust authority to the Clean Water Act, but just a kind of side thing. I.e., if pollution reaches a navigable waterway, then the polluter has polluted a navigable waterway. How could there be a legal defense to that logical construct?

I live in the DC area and know the Blue Plains WWTP discharges just below DC into the Potomac/Anacostia mixed waterway just above the Wilson Bridge. It is nasty when the storms come through and surge the system. Something has to be sure the plant is continued to be modified and upgraded to maintain cleaniness and safety of the water below it. Heck, the entire DC area could stand to benefit from the same moves.

I live on a small lake that is being polluted with high levels of phosphorus and nitrates by run off from farm ditches. Wetlands around the lake have been eliminated, while the health of the lake has deteriorated. Meanwhile, the Indiana Department of Natural Resources and the Indiana Department of Environmental Management has ignored the pleas of the residents to clean up the water entering the lake. The Clean Water Restoration Act would require the states to protect their most important natural resources. The residents at Lake of the Woods support the Clean Water Restoration Act!

Ahoy All...
Whether wealthy or poor, powerful or weak; without clean, healthful, & bountiful water & air supply, all existing will cease to exist...no matter who you think you may be....

IF WE COULD DELIVER THE POLLUTED WATER TO THE HOMES AND FAMILIES OF THE OFFENDERS TO USE AND CONSUME, THEN YOU WOULD GET THEM TO SCREEM FOR CLEAN WATER IN A SECOND!

Protect all waterways, not just navigabile. Let there be a clean way of keeping water safe.

80% of pollution in our waterways comes from pollutants washing off of outdoor hard surfaces into the storm drains, during normal rainfall and cosmetic cleaning and surface preparation activities.
32% of the pollution in our water is from used motor oil, transmission fluid and antifreeze, 12% from silt, dirt and mud, 9% paint and wood stain.
Outdoor high traffic areas, such as parking lots/structures, gas stations, transit stations, delivery/dumpster areas located at most commerical and industrial businesses need to be cleaned regularly for cosmetic reasons and liability concerns and to reduce contaminates from washing into our waterways during normal rainfall activity.
Pressure washers and floor scrubbing equipment are the most cost effective and efficent means to remove used motor oil, grease, paints, gum and dirt from outdoor surfaces.
The question is what happens to the wash water that contains all the contaminates removed from the surface being cleaned, as well as the toxic cleaning agents?
Pressure washing is done nights and weekends when businesses are slow or shut down...and when inspectors are not on duty. Most pressure washers simply wash their wastewater to the nearest storm drain, which leads to the nearest stream, river, lake and ultimately the ocean. It simply costs less than purchasing and operating equipment that recovers cleans and recycles their wash water.
One quart of used motor oil contaminates up to 2 million gallons of fresh water. It can cause up to a 2 acre oil slick. It contains toxic metals such as cadimum, lead, mercury, zinc, copper, all toxic to humans and wildlife.
If only 20 businesses in your city dumps 1 quart of used motor oil into the storm drain each day, 250,000 million gallons of fresh water is polluted every day.
Even if the pressure washer collects and discharges the wastewater to the sewer,
according to the U.S. EPA and Department of Energy estimates, 4 million watt hours of power and 5,360 pounds of carbon dioxide are consumed along with every million gallons of fresh water used or contaminated.
History has shown that preventing pollution is more cost effective than cleanup after the damage has been done. Investing in water quality now, protects vital resources for future generations. Clearly, reducing water pollution is a way to make an immediate and sustainable positive impact on the environment. The question is how.
Vacuum recovery and portable wastewater recycling systems are available which enables pressure washers to automatically collect, clean and reuse their wash water.
But, until government enforces the Clean Water Laws towards the polluting companies and the corporations who hire their services simply because it costs less, this significant source of pollution will continue.

Has this issue been addressed in a petition/cause through Care2 or on Facebook?

In a lawsuit (1997) asking the federal court in Denver to overturn EPA’s negative response on our petition, to include nitrogenous waste in its definition of ‘secondary treatment” (basically asking to correct an essential pollution test), the dissenting judge wrote:
“The EPA’s construction of the term “secondary treatment” is not permissible. While the Clean Water Act gives the Administrator discretion to define secondary treatment pursuant to the statute, that discretion cannot be exercised in a matter inconsistent both with the structure and legislative history of the statute and with the Administrator’s own prior interpretation of the term. In allowing the substitution of quality-based controls for generally-applied, technology-based effluent limitations, the majority allows the EPA to return clean water regulations to pre-1972 era.” (www.petermaier.net)
EPA’s (and most state agencies) insistence to keep using this essential pollution test incorrectly, makes any definition of ‘secondary treatment’ of ‘best available technology” worthless and that is the main reason why every type of sewage treatment plant (from a hole in the ground to a multi-million dollar high tech facility) will meet EPA’s ‘secondary treatment’ requirements.
If however this essential test had been properly used in the past, it would have shown that there are certain treatment technologies that are not only far superior, but also less costly then the odor control facilities now build, developed more then a century ago. This very well may be the real reason why nobody wants to correct this essential pollution test, as it clearly (as EPA behind doors admits) would require a re-education and re-tooling of an entire industry that is happy with the status quo. Who wouldn’t be, since nobody can be held accountable and nobody willing to do so?

Without clean water to drink, not only will the human race perish from the earth, so will everything else. Now is the time to act, there's not a moment to lose!

All the waters of the USA must be protected - by all of us, and our government.

Please strengthen and enforce the Clean Water Act!

Please enforce the clean water act. Literally our lives depend on it. No creature can live without clean water.

PLEASE ENFORCE THE CLEAN WATER ACT!

Life without abundant oil would be different, but we can survive with little or no oil.
Life without potable water is not possible.
All the waters of the USA must be protected - by all of us, and our government.

CONTROL,CLEAN UP, PROTECT, INSPECT REGULARLY AND DEMAND TRANSPARENCY ABOUT ALL OF THE U.S. WATER AREAS!!!PUNISH THOSE WHO POLLUTE OUR WATERWAYS INCLUDING THE SMALLEST LAKE OR STREAM! PROTECT FROM BOTTOM TO TOP! CORPORATIONS MUST BE RESPONSIBLE FOR THEIR WASTE AND DISPOSE OF IT SAFELY,PLACES LIKE COVANCE THAT PUT EXPERMENTAL DRUGS DOWN THE DRAIN MUST BE HELD ACCOUNTABLE!!!THIS IS WHY WE HAVE DANGEROUS DRUGS IN WATER! BE STRICT AND KEEP US HEALTHY!!!!

Since all waters eventually end in "Navigable" waters at some point, it seams a given the Clean Waters Act would apply to 'ALL" waters...

Please enforce the clean water act, it is very important.

Enforce and strengthen the Clean Water Act! Clean up all waterways in this country, and strictly punish water polluters, including those who pollute reservoirs, underground sources, and aquafers. Our life and health is not a joke, and the corporations that ignore the laws have to be stopped.

Water is the stepchild of the current climate discussion. Preserving our wetlands will provide clean water and protect areas against incresed hurricaine danger.
Please support the clearn water restoration act.
Thank you.

Forget navigable waters, EPA never implemented the Clean Water Act, because it did not consider nitrogenous (urine and protein) waste a pollutant and allowed rivers to be used as giant urinals. This waste, besides exerting an oxygen demand like fecal waste, also is a fertilizer for algae and aquatic plant growth and as such responsible for the eutrophication of our open water and eventually causing dead zones, as now experienced in the Gulf of Mexico, Chesapeake Bay and many other open waters.
All this was caused by an incorrect applied pollution test, EPA used to implement the CWA and although EPA in 1984 acknowledge the problems with this test, it in stead of correcting the test, allowed an alternative test now officially ignoring the nitrogenous waste pollution and lowering the original goal of the CWA from 100% treatment (elimination of all pollution) to a measly 35% treatment.
Other major problems caused by this still incorrect used test, are that one can not evaluate the real performance of a sewage treatment plant and what it effluent waste loading is on receiving water bodies, while there also is a real possibility that such treatment facilities are designed to treat the wrong waste.
Ever since Senator Obama declared to run for president, I contacted both his senate staffs in Illinois and Washington and his campaign staffs several times, requesting the senator to write a letter to the EPA administrator and ask him why EPA never implemented the CWA. I am sure that if the senator would have been aware of this issue, he would have written such a letter.
Too often staff members, especially in Washington DC, will decide what information to pass on and by doing so keep their bosses in the dark. This probably is the main reason why nothing works in Washington DC and as long as such an attitude prevails and tolerated (the plus point is that if issues later come up members of Congress can excuse themselves, by saying that they did not know), it will be impossible to make any changes in Washington, even after Senator Obama is elected President.
When nobody in Congress is willing to hold the EPA accountable, our open waters only will deteriorate further.

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