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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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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Supreme Court to Hear Beach Walking Case?

Shoreline property owners are asking the nation’s highest court to reverse a ruling that says the public has the right to walk along the beaches of the Great Lakes. The Great Lakes Radio Consortium’s Rick Pluta reports:

Transcript

Shoreline property owners are asking the nation’s highest court to
reverse a ruling that says the public has the right to walk along the
beaches of the Great Lakes. The Great Lakes Radio Consortium’s Rick
Pluta reports:


The property owners are challenging a Michigan Supreme Court
decision. The state court held that the public owns the Great Lakes
beaches from the water to the high water mark. The case was filed by a
woman who was seeking the right to walk along the shoreline of Lake
Huron.


David Powers is an attorney with the property owners group Save Our
Shoreline. He says the Michigan decision rolled back property owners’
rights…


“And so, if the state has taken private property in violation of the
Constitution, the U.S. Supreme Court should be very concerned about
that.”


The other side in the case says the Great Lakes shoreline is such a unique
resource that no one person should be allowed to claim exclusive rights
to it.


There’s no word on when the Supreme Court might make a decision on
taking the case. Lakeshore property rights are being litigated in other
Great Lakes states and whatever the Supreme Court decides to do could
have an effect on those cases.


For the GLRC, this is Rick Pluta.

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