Clean Water Act Clear as Mud

  • Two Supreme Court rulings have left landowners, regulators, and lower courts confused over what waterways are protected by the Clean Water Act. (Photo courtesy of Abby Batchelder CC-2.0)

The nation started cleaning up lakes and rivers in 1972 after passing the Clean Water Act. But two U-S Supreme Court rulings have left some waterways unprotected from pollution. Mark Brush visited one couple who says a lake they used was polluted and the government has let them down:

Transcript

The nation started cleaning up lakes and rivers in 1972 after passing the Clean Water Act. But two U-S Supreme Court rulings have left some waterways unprotected from pollution. Mark Brush visited one couple who says a lake they used was polluted and the government has let them down:

Sheila Fitzgibbons and her husband Richard Ellison were looking for a good spot to open up a scuba diving business. They found Cedar Lake in Michigan. Unlike the other lakes they looked at, this was crystal clear water.

“Ours always stayed clean and it took care of itself and aquatic plants were very healthy. We had a lot of nice fish in here – healthy fish that only go into clear water.”

They said they could take six scuba diving students underwater at a time – and have no problem keeping track of them because the water was so clear.

But that all changed in the spring of 2004. Richard Ellison was in the lake on a dive:

“We were with our students down on the bottom, doing skills and stuff with them, and all of the sudden it sort of looked like a big cloud come over, you know. And the next thing you know, it just turned dark and it was just all muddy. It looked like we were swimming in chocolate milk.”

Ellison and Fitzgibbons say the lake was never the same after that. They blamed the local government’s new storm drain. They said it dumped dirty water right into the lake. Local officials said it wasn’t their new drain, but a big rainstorm that was to blame.

Fitzgibbons and Ellison sued in federal court. They said the new drain violated the Clean Water Act. The local government argued, among other things, that the lake was not protected by the Clean Water Act. The case was dismissed – and Fitzgibbons and Ellison closed their dive shop.

Just what can or cannot be protected by the Clean Water Act used to be an easy question to answer. But two Supreme Court rulings – one in 2001 and one in 2006 – muddied the waters.

After the rulings, it wasn’t clear whether a lot of isolated lakes, wetlands and streams still were protected by the Clean Water Act.

Some developers and farmers saw the court rulings as a big win. They felt the government had been exercising too much power over waterways, limiting what they could build or do on their own property.

Jan Goldman-Carter is a lawyer with the National Wildlife Federation. She says the people who enforce the nation’s water protection laws were left scratching their heads after the rulings:

“The confusion generated by these decisions has wrapped up the agencies, the courts, and even landowners and local governments with really not knowing when a water is protected or not. And that’s had the effect of actually, kind of, unraveling the fabric of the Clean Water Act, which really is our primary protection of our nation’s water supplies.”

Goldman Carter says – polluters are getting the signal. In many places – no one is watching:

“When the polluters recognize that basically the enforcers are not out there, and no one’s really in a position to deter their activities, it’s a lot cheaper for them to pollute than to follow the law.”

The New York Times recently reported that judgments against major polluters have fallen by almost half since the Supreme Court rulings.

In 2008 EPA officials said the rulings kept them from pursuing hundreds of water pollution enforcement cases. We asked for an interview with the EPA officials, but they would only answer questions by e-mail. They agreed the Supreme Court decisions do limit their ability to protect water quality.

The EPA is now calling on Congress to pass a new law. It’s called The Clean Water Restoration Act. The bill’s sponsors say they want to put back what was taken away by the Supreme Court.

The bill was introduced a year ago. It’s been stalled in Congress ever since.

For The Environment Report, I’m Mark Brush.

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Interview: EPA’s Lisa Jackson

  • Lisa Jackson is the Administrator of the Environmental Protection Agency (Photo courtesy of the US EPA)

Some members of Congress feel they’re being coerced into approving a Climate Change bill that would force industry to reduce greenhouse gases. Republicans and some Democrats feel the Obama Administration is telling Congress to either approve legislation or the Environmental Protection Agency will use its authority to restrict greenhouse gases. Lester Graham spoke with the Administrator of the EPA, Lisa Jackson, about that perception:

Transcript

Some members of Congress feel they’re being coerced into approving a Climate Change bill that would force industry to reduce greenhouse gases. Republicans and some Democrats feel the Obama administration is telling Congress to either approve legislation or the Environmental Protection Agency will use its authority to restrict greenhouse gases. Lester Graham spoke with the Administrator of the EPA, Lisa Jackson about that perception.

Administrator Lisa Jackson: They want to say that it’s EPA’s action that’s compelling them to be forced to address energy and climate change legislation. I certainly hope that’s not the case. We are actually in a race here to move to a greener energy economy. And the rest of the world is certainly doing it. And I always tell people that if you don’t want to do it for the environmental reasons, you need to look at the economics and where the world is going, and realize we need to break our dependence on fossil fuels that come from out of our country. We need to move to clean energy. That should be the imperative. I hope it becomes the imperative.

Lester Graham: There’s a new treaty coming up to replace the Kyoto Protocol, the UN Climate Change Conference will meet in Copenhagen in December for a new climate change agreement – if Congress does not pass climate change legislation by that point, how will it affect the standing of the United States in those talks?

Administrator Jackson: Well, certainly it’s fair to say the eyes of the world are upon us, to some degree. Each country is dealing individually with their own situation on energy and climate, and then obviously those are big multi-lateral talks. But I do think people are watching to see if the United States is in this game of clean energy and addressing carbon.

Graham: If Congress does not pass a measure this year before that conference, but there’s a likelihood of it passing next year, will that change – I’m just trying to figure out how we enter into those negotiations if we don’t have a solid plan for reducing greenhouse gasses.

Administrator Jackson: I know lots of people are trying to figure out whether or not the United States will be at the table and in a big way. It certainly is the most important thing to be able to say to the rest of the world, is that not only President Obama is clearly behind this, but the Congress representing the people of the United States has moved to embrace new energy policy, and clean energy, and low-carbon. We’re not there yet, obviously. I’m still optimistic, despite all the other discussions going on, because I know that there’s been real progress made to date.

Graham: You’re just a few months into the job, and already seeing a little heat from Congress and big, big challenge – how do you feel about the job and what do you hope to accomplish in the first year?

Administrator Jackson: I already know that it’s the best job I’ll ever have. I understand that the push and pull of the system is that we’re going to have some dialogue on issues that are of great concern to members of Congress, to the American people, to various stakeholders, and I’m eager to have those conversations. And I think as long as we keep in mind that we’re going to follow the best science we can, we’re going to follow the law, we’re going to be honest, we’re going to be transparent, we’re not going to hold information back. You know, I think that was the most damning criticism of EPA – that there was information out there that might have protected the environment or the American people that was held back. And that time and trust, we have to now re-earn. So that’s what we’re about.

Graham: Administrator Jackson, thanks for your time.

Administrator Jackson: Thank you so much, Lester. Nice talking to you.

Lisa Jackson is the Administrator of the Environmental Protection Agency. She spoke with The Environment Report’s Lester Graham.

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Waiting ‘Til the Midnight Hour

  • Passing midnight regulations is nothing new. When presidents of a losing party are packing up, there's not much of a political price to pay for unpopular rules. (Photo courtesy of the US Department of State)

It’s the Holiday Season – and
critics say industry lobbyists are getting
many of the gifts they’ve been asking for.
The Bush Administration is pushing through rules and regulations for them. Mark Brush
reports these midnight regulations will be
difficult to overturn:

Transcript

It’s the Holiday Season – and
critics say industry lobbyists are getting
many of the gifts they’ve been asking for.
The Bush Administration is pushing through
rules and regulations for them. Mark Brush
reports these midnight regulations will be
difficult to overturn:

Critics say President George W. Bush is doing a lot of last minute shopping for his
friends in big industries.

“What’s happening in Washington right now is a really quiet sneak attack on a lot of
fundamental protections that Americans enjoy under the law.”

That’s John Walke. He’s a senior attorney with the Natural Resources Defense Council.
He says these last minute Bush rules are not good for the environment – and they’re not
good for people.

“It’s important to realize we’re talking here about midnight de-regulation. These are
actions that are removing safeguards and protections of public health, and public welfare,
and the environment, and giving industry the permission to commit those harmful acts.”

So what kind of harmful acts is he talking about? Here are just some of the more than 60 rules and
regulations the Bush Administration is working on or have finalized.

A rule that makes it easier for coal mining companies to dump their waste into nearby
creeks and streams.

A rule changes that would allow older coal burning power plants to pump out more air
pollution without having to install clean up equipment.

A rule that would allow large dairies or livestock farms to police pollution from their own
operations.

And a rule that would make it more difficult to protect workers from toxic chemicals.

It’s a long list. But the main philosophy of the Bush Administration is that big industries
need a break from government regulations.

The Administration says they’ve been working on these rules for a long time. But
they’ve waited until the last minute to finalize a lot of them.

Passing midnight regulations is nothing new. When presidents of a losing party are
packing up, there’s not much of a political price to pay for unpopular rules. Your party
lost the election. So why not? Jimmy Carter’s administration was famous for it. The
term ‘midnight regulation’ was coined when Carter kicked last-minute rule making into
high gear. And every president since then has had his own last-minute rule changes.

The incoming Obama Administration is promising to go through these rules. Jon Podesta
is with Obama’s transition team. And he talked about that on Fox News Sunday.

“As a candidate, Senator Obama said that he wanted all the Bush executive orders
reviewed, and decide which ones should be kept, which ones should be repealed, and
which ones should be amended.”

Overturning some of these rules won’t be easy. Joaquin Sapien is a reporter for
ProPublica. He’s been following these midnight regulations closely. He says what
makes the end of this administration different is how it planned for the end. Last May,
White House Chief of Staff Joshua Bolten contacted all the federal agencies.

“What they did was they sent out a memo saying, ‘get your work done on these
regulations by November the first.’ So that would give these agencies plenty of time to
get them in effect before the next administration takes over, thereby limiting what the
next administration could do about some of these rules.”

Once the rules are finalized – they become effective in thirty to sixty days. And once that
happens – Sapien says it’s pretty much a done deal.

“And so, if a rule is in effect by the time the Obama Administration takes over, there’s
really very little he can do.”

For every rule that has gone into effect, it would take a lengthy rule-making process to
overturn it – a process that can take months and more likely years to complete.

There is another option. Congress can review the rules – and stop them before they’re
enforced. But with all the attention on the financial crisis, and with the wars in Iraq and
Afghanistan, experts think Congress won’t do that. And that these last minute rules will
be government policy for awhile.

For The Environment Report, I’m Mark Brush.

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Air Pollution Rule Has Some Fuming

Governors in New England are up in arms about some changes the Bush administrations
wants to make that would allow older power plants to add on but avoid buying new
pollution control equipment. Mark Brush has more:

Transcript

Governors in New England are up in arms about some changes the Bush administrations
wants to make that would allow older power plants to add on but avoid buying new
pollution control equipment. Mark Brush has more:

The proposed rule change would change how air pollution is measured from power plants
that expand their operations.

Right now, the air pollution is capped at a certain amount
per year. The new rule would cap the amount of air pollution allowed by the hour.

That
means a power plant could put out a lot more air pollution over the course of a year.

John Walke is a senior attorney with the Natural Resources Defense Council. He says
this little change in the rule could have a big impact.

“So as soon as these utility companies began to expand their plants and to pump out more
smog and soot pollution. People in surrounding communities would see their air quality
worsen.”

Six northeastern states are urging the EPA not to go forward with the rule change. In a
recent letter sent to the EPA they say the rule change – quote “threatens the quality of our
states’ air and the health of our citizens.”

For The Environment Report, I’m Mark Brush.

Related Links

Muddy Waters Around Wetlands Ruling

  • Federal protections for isolated wetlands like this one are in question after a 2001 Supreme Court ruling. Experts say it's not just wetlands that are at risk. They say lakes or streams that have been deemed "isolated" are losing protections as well. (Photo by Mark Brush)

Around the country, there are small, isolated swampy areas that are home to a lot of plants and animals. You can often hear frogs singing, or see ducks dabbling for food in these murky waters. Some experts say the government has weakened regulations that once protected these smaller wetlands. Now, they say, many of these wetlands are being drained, filled in and lost. The Great Lakes Radio Consortium’s Mark Brush has more:

Transcript

Around the country there are small, isolated swampy areas that are home
to a lot of plants and animals. You can often hear frogs singing, or
see ducks dabbling for food in these murky waters. Some experts say
the government has weakened regulations that once protected these
smaller wetlands. Now, they say, many of these wetlands are being
drained, filled in and lost. The Great Lakes Radio Consortium’s Mark
Brush has more:


This small wetland is nestled in the middle of a woodlot. Mud is
squishing under our feet as we walk around it. The water is still, and
dark… filled with last year’s rotting leaves.


This is no place for humans to live. But for wildlife, this is home.


(sound of chorus and wood frogs)


“That looks like what was left of a whirligig beetle – that’s a real
common insect in these types of habitats.”


We’re out here with Dave Brakhage. He’s a conservationist with Ducks
Unlimited. He says these small wetlands are where ducks take their
ducklings for food.


Brakhage brought us here to show us an example of a wetland that was
once protected by federal regulations:


“These wetlands are isolated because there’s not a direct water
connection from them to a lake or stream or other water body in the
area. They’re geographically isolated.”


Being isolated puts these wetlands into a sort of regulatory limbo. To
dredge or fill a wetland like this 4 years ago – you needed to apply
for a permit from the Army Corps of Engineers.


Now – in many parts of the country – you don’t need that permit.


That’s because in 2001 the Supreme Court ruled on a case from the
Chicago area that changed everything. The court’s decision opened up a
lot debate about whether isolated wetlands should be protected by the
federal government.


Dave Brakhage says the ruling gave the Bush Administration an
opportunity to issue a guidance to government agencies.


“The Supreme Court ruling certainly threw into question a lot of the
protections that were in place there. And that opened the door to the
guidance. And depending on how the guidance came down and the
interpretations associated with it. It could certainly make things a
whole lot worse.”


The Bush administration issued these instructions to the federal
agencies in January of 2003.


But conservation officials and environmentalists believe the
administration went too far with these instructions, going beyond what
the Supreme Court ruling required.

The instructions were issued prior to drafting a final, formal rule.


But before it finalized the rule – the Bush Administration got an
earful.


“There was a lot of concern expressed on the part of a pretty broad
swath of the American Public.”


Scott Yaich is the Director of Conservation Programs with Ducks
Unlimited. He says the Administration heard protests from those they
considered friendly:


“We were talking about people who were concerned about the environment,
and in this case there were a lot of hunters and a other sporting
groups and angling groups that went into him, and those are a pretty
core part of the Republican and the President’s base.”


So President Bush stopped the rule-making process that would lift the
protections.


But… the original instructions to the agencies still stand.


And the Administration has no plans to change them.


Julie Sibbing is wetlands policy specialist with the National Wildlife
Federation. She says getting the President to back away from finalizing
the rule was a small victory, but there’s still a lot to be done:


“It was a right decision at we do recognize that and we praise the
administration for taking the right step, but they’ve got a long way to
go yet. We still have a long way to go – and there’s a lot at risk.
In fact the EPA’s own estimates are that the guidance has put about 20
million acres, or about 20% of what we have left in the lower 48 states
of wetlands at risk.”


But the risk is not the same for wetlands in different areas of the
country. So today, when developers and landowners go to the Army Corps
of Engineers to apply for a permit, they get different responses
depending on where they are.


Some Corps districts have turned their back on the isolated wetlands,
telling developers no permits are needed.


Other Corps districts are waiting for clearer direction.


Mitch Isoe is the Chief of the Regulatory Branch for the Corps’ Chicago
District. He says he just wants to know what he’s supposed to do.


“We would like to have revised rules on the definitions for our
jurisdiction. We’d just like to have the critical terms that are
causing all of these difficulties defined in a way that two people in
two parts of the country can read the same sentence, go out on the
ground and end up at the same point. And, you know, right now the
field is helpless to do that, because the decision on not to pursue
rulemaking was made in Washington.”

With mixed messages coming from the White House, the Corps of Engineers
and the Environmental Protection Agency are struggling with how and
whether to regulate these wetlands.


In the meantime, it’s generally left up to the states to pass laws to
protect these areas.


Some states have laws that do that, others don’t.


(sound of frogs)


Ducks Unlimited and other conservation and environmental groups are
working with the Administration to protect these wetlands. Dave
Brakhage says doing so will benefit more than just ducks:


“And it’s not just the wildlife – you know wetlands are important in
terms of storing floodwaters, an important site for restoring ground
water recharge, and also have a big role to play in improving our water
quality.”


The Bush Administration says it’s committed to preserving wetlands, and
it even says it plans to increase the amount of wetlands in the U.S.


Environmentalists and hunting groups say they don’t see that happening
right now. But they’re pushing the Administration to make good on that
promise.


For the Great Lakes Radio Consortium, I’m Mark Brush.


(frogs fade)

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Army Corps to Lower River Levels

The Corps of Engineers will soon lower water on the Missouri River… a month after it was first ordered by a judge to do so. The Great Lakes Radio Consortium’s Tom Weber reports:

Transcript

The Corps of Engineers will soon lower water on the Missouri River… a
month after it was first ordered by a judge to do so. The Great Lakes Radio Consortium’s
Tom Weber reports:


The Corps is only going to keep the river levels down for three days. A
federal judge in Washington had ordered the reduction to protect nesting
endangered species… but the Corps said that would conflict with another
ruling from Nebraska that said water must be high enough for barges.


Those lawsuits were all combined and sent to a court in Minnesota… where
judge Paul Magnuson ruled the two orders were not in conflict. He says that
means the order to lower levels still applies.


Barge companies were told to secure vessels because the river will likely be
too shallow for navigation during the three days. The corps had risked
being fined a half-million dollars a day for being in contempt of the
ruling… but Judge Magnuson says he won’t enforce those fines at this time.


Environmental groups say it might be too late for the species… but it’s
better than nothing.


For the Great Lakes Radio Consortium, I’m Tom Weber.

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Legal Wrangling Over River Levels Continues

The fight between environmental and business interests on the Missouri River has created legal wrangling in two federal courts. The Great Lakes Radio Consortium’s Tom Weber reports:

Transcript

The fight between environmental and business interests on the Missouri
River
has created legal wrangling in two federal courts. The Great Lakes
Radio Consortium’s
Tom Weber reports:


The controversy started when a federal judge in Washington recently
ordered
the U.S. Corps of Engineers to lower water levels on the Missouri
river.
That move would protect endangered birds and fish that risked losing
their
nests with the higher water levels.


The Corps told the judge, though, it intended to ignore that ruling
because of a
previous ruling in a Nebraska court. That ruling said water levels
should
be high enough to keep barge traffic moving on the lower Missouri.


The Washington judge scolded the Corps for refusing her order and ruled
the
agency in contempt. The Corps in turn asked the Nebraska judge to
modify
her ruling to allow it to avoid heavy fines for being in contempt.


But Wednesday… the Nebraska judge refused. The Corps is appealing
her
ruling.


For the Great Lakes Radio Consortium, I’m Tom Weber.