Tag: waterways

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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People Power vs. Bp

Earlier this summer, a state agency gave a refinery permission to increase pollution in
the Great Lakes. Commentator Cameron Davis takes a look at lessons learned and
what they mean for the future of the nation’s waterways:

Transcript

Earlier this summer, a state agency gave a refinery permission to increase pollution in
the Great Lakes. Commentator Cameron Davis takes a look at lessons learned and
what they mean for the future of the nation’s waterways:


When the Indiana Department of Environmental Management gave approval for BP’s
refinery to pollute more in Lake Michigan, who would have guessed that within weeks
more than 100,000 people would sign petitions against the proposal?


The people of the region seemed to instinctively know that more pollution had to be
stopped. After all, millions of us rely on Lake Michigan for drinking water and recreation.


Of course, coverage of the pollution proposal took off, with the Chicago Sun-
Times calling for a boycott of BP gasoline. The New York Times and CBS
Evening News ran national pieces about the pollution increases. A bi-partisan coalition
of politicians from neighboring states cried foul, including Chicago Mayor Richard Daley,
U.S. Senators Dick Durbin and Barack Obama, Representatives Rahm Emanuel, Mark Kirk, Jan
Schakowsky, Vern Ehlers and the entire Michigan Congressional delegation, among
others.


But while the media, elected officials, and even those of us in the conservation
community talked about the permit, the real story wasn’t about the permit. It wasn’t
about its allowance for 54 percent more ammonia and 35 percent more suspended
solids from treated sludge to be discharged.


It wasn’t even an argument about jobs versus the environment. That debate was discounted long
ago by the many businesses that decided or were mandated to pollute less and then
still prospered.


The real story was what you, the public, said and what you are saying now: how we
treat the Great Lakes is emblematic of how we treat our waterways all around the
country. You’re saying that you want a new standard of care for the nation’s waters. You
don’t want the standard to be “to keep things from getting worse.” You don’t want the
status quo. You want our waters to be proactively restored. You want it better.


Like those of us who used to be in the cub scouts, inspired to leave our campsites
better than the way we found them, you want the standard for our waters to be: leave
things better for the next generation.


HOST TAG: Cameron Davis is the president of the Alliance for the Great Lakes.

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Who Gets Great Lakes Water?

  • Lake Superior's North Shore. (Photo by Dave Hansen - Minnesota Extension Service)

For the first time, state legislatures in the Great Lakes region have a set of laws in front of
them that could comprehensively define how and where they can use Great Lakes water.
Melissa Ingells has a look at the document called the Great Lakes Compact:

Transcript

For the first time, state legislatures in the Great Lakes region have a set of laws in front of
them that could comprehensively define how and where they can use Great Lakes water.
Melissa Ingells has a look at the document called the Great Lakes Compact:


For a long time, nobody thought much about regulating the water of the Great Lakes.
They just seemed inexhaustible. There was no firm legal definition of who the water
belonged to, or who could give it away.


At some point, scientists figured out the boundaries of what’s known as the Great Lakes
Basin. It’s like a huge land bowl where all the waterways flow back into the Lakes. It
includes areas of eight states and parts of Canada. Scientists figured out that you had to
leave at least 99% of the water in the lakes in order to maintain all the important
ecosystems that depend on the water.


The natural boundary of the Great Lakes basin started to become a political boundary
when demand for water started rising. The only regulation for a long time was a 1984
federal law that said all the Great Lakes governors had to agree before any water could
be taken out of the lakes.


Then, in 1998, an organization called the Nova Group got a permit from Ontario to ship
water to Asia. People didn’t like that idea at all, and the politicians reacted:


“It seems like every major policy change has a triggering event.”


Dennis Schornack is the U.S. chairman of the International Joint Commission, which
oversees Great Lakes issues:


“The Nova permit granted initially by Ontario to this shipping company to take Great
Lakes water apparently by tanker to the far east… was the triggering event to start the
compact in motion. There have been a number of cases over the years… they all lead
down the same path, and that is that we had to have a structure to manage these waters
cooperatively.”


The Compact Schornack was talking about is the Great Lakes Compact. It’s a
comprehensive set of strict water usage laws. The states realized the need for something
like it after the Nova Group incident, and work on it was completed in 2006. It’s a strong
agreement because each state, and two Canadian provinces through a separate agreement,
must get it through their legislatures and get their governors to sign it. After all the states
have passed it, it has to be approved by the U.S. Congress.


Schornack was one of the people who helped write it. He thinks it’s a pretty good
solution for the lakes:


“This is really a big deal. Whether it’s a perfect solution, who knows, only time will tell,
but it certainly is a very strong and positive step in the right direction. When eight
governors get together and two premiers and decide we’re going to manage a fifth of the
world’s fresh surface water, and we’re going to do it with conservation, we’re going to do
it with very severe restrictions on diversions, this is all very good for the basin, this is
good news.”


The Compact does have its detractors. There are people from the business and
environmental worlds who have problems with some of it, but the general feeling is that
something has to be settled on, and the Compact is a good start. Most states seem
to have bipartisan support in their legislatures, although so far only Minnesota has
actually passed it. Peter Annin is the author of “The Great Lakes Water Wars.” He
thinks that by legislative standards, things are moving pretty quickly:


“The pace of ratification to the average citizen might seem like it’s
painfully slow and laborious. But in fact, with compacts in general, some of them have
taken ten, twenty years to make it through all the various legislatures. And so here we
are about 18 months after the documents were released… if you look at the eight states,
the vast majority of them have some sort of activity going.”


Annin also thinks that given the pressing issues over natural resources everywhere, that
agreements like the Compact will change the way other regions think about their
resources:


“Why it’s a model I think is because it’s encouraging to people to think not just in
political boundaries, but in watershed boundaries, in that the Compact encourages people
to work communally to a greater social and sustainability good on behalf of the regional
water supply and water resources and I think that’s going to be a model for the future no
matter where you are.:


Annin thinks there will be a flurry of activity in the legislatures in the next year or so.
That’s because after the 2010 congressional redistricting, the water-hungry Southwest
will likely have more power in the U.S. House. So it’s in the interest of Great Lakes
States to get the Compact through Congress before those political changes happen.


For the Environment Report, I’m Melissa Ingells.

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Fish Disease Spreads to New Waters

  • The external bleeding on this freshwater drum fish is a result of VHS. The disease is spreading beyond the eastern Great Lakes region. (Photo by John Lumsden, University of Guelph)

A virus that’s been killing fish in the Great Lakes is spreading to
other waterways in the US. Chuck Quirmbach reports:

Transcript

A virus that’s been killing fish in the Great Lakes is spreading to
other waterways in the US. Chuck Quirmbach reports:


Viral hemorrhagic septicemia has been limited to the eastern Great
Lakes region, but now it’s gotten into a forty-mile long lake in
Wisconsin. Lake Winnebago draws anglers from a wide area.


Mike Schmal is a local tourism official. He says the fish-killing
virus could be very disruptive.


“There’s numerous bait shops and numerous businesses that depend on the
lake and this is our summer leisure season… when the boating season
begins and when sportfishing begins.”


Scientists say it appears to be impossible to get the virus out of
infected waters, so natural resource officials are trying to stop VHS
from being spread to more lakes and rivers in other states.


It’s not clear how VHS got into the US, though contaminated
ballast water from international ships is one possibility.


For the Environment Report, I’m Chuck Quirmbach.

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Manure Spreading Pollutes

The government is studying ways to reduce water pollution from
spreading manure on farm fields. Lester Graham reports some experts
believe the way many farmers spread manure is more likely to pollute
lakes and streams:

Transcript

The government is studying ways to reduce water pollution from
spreading manure on farm fields. Lester Graham reports some experts
believe the way many farmers spread manure is more likely to pollute
lakes and streams:


A lot of times, farmers don’t spread manure for fertilizer in the spring because
it can get in the way of opportunities to plant. So, a lot of farmers
spread manure in the winter. But spreading liquid manure on the frozen
ground means it doesn’t get plowed into the soil. Snow and rain can
wash the manure over the frozen dirt and into waterways.


Steve Jann is involved in a study by the Environmental Protection
Agency and the U.S. Department of Ag:


“When that runoff occurs it can carry manure pollutants with it. And
those pollutants when they enter surface waters can kill fish or allow
pathogens to enter surface water.”


And if that river or lake supplies drinking water, it can make people
sick. The study will compare pollution levels in waterways from
manure-spreading in the winter and the spring to see if pollution
from farm fields can be reduced.


For the Environment Report, this is Lester Graham.

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Corn Ethanol: More Water Pollution

  • Corn requires more fossil fuel-based nitrogen fertilizer than many other crops. Tanks of pressurized anhydrous ammonia fixes nitrogen in the soil, but heavy rains can wash nitrogen into waterways. (Photo by Lester Graham)

Government-funded programs that pay for
conservation on farmland have done a lot to
improve the environment over the past twenty
years. The federal government has paid farmers
to take some cropland and set it aside to protect
waterways and wildlife habitat. In the second of
our two-part series on ethanol, Julie Grant reports
that some of that conservation is being stalled:

Transcript

Government-funded programs that pay for
conservation on farmland have done a lot to
improve the environment over the past twenty
years. The federal government has paid farmers
to take some cropland and set it aside to protect
waterways and wildlife habitat. In the second of
our two-part series on ethanol, Julie Grant reports
that some of that conservation is being stalled:


A good hard rain can wash a lot of valuable soil off a farm field.
John Wallbrown grows corn and soybeans on his farm. He says losing
soil is just like losing money. The soil carries with it all the
nutrients he’s put in the fields to help the crops grow, things such as
nitrogen and phosphorous. Wallbrown says he’s put in a good number of
grass waterways through the fields to help filter the water and hold on
to that soil:


“And so when you put in a grass waterway, it dramatically reduces the
amount of erosion. And it is just better for the water supply, better
for our crop. We’re keeping our soil in our field as opposed to it
getting put away.”


What Wallbrown calls nutrients in the field are considered pollution
once they wash into rivers and lakes. So Wallbrown says planting grass
near waterways is good for everyone. Except it means he’s got to use
land that otherwise could be growing crops, and that’s a loss of
income.


Wallbrown has gotten various government assistance to offset those
losses. The largest program, is called the Conservation Reserve Program, known as the
CRP for short.


John Johnson is with the US Department of Agriculture. He says when
you add up all the farms like John Wallbrown’s around the country, the
CRP is making a huge difference in reducing agricultural runoff into
waterways:


“Over 450 million tons of topsoil annually are prevented from eroding
because of CRP. We’ve got lots of really good benchmarks and measurements of
success of CRP, in both water quality, soil erosion and wildlife
habitat.”


But that set-aside land is in demand these days. There’s been a huge
call for bio-fuels to help reduce American dependence on foreign oil.
Bio-fuels are made from crops such as soybeans and corn, especially
corn. So Johnson says the government has decided to stop enrolling
new farmland into the conservation program:


“The overriding concern was that there is a need for a larger supply of
corn and soybeans and wheat production right now, so given the need for
that production, let’s just take a pause right now from enrolling large
acreage of additional farmland into the CRP.”


Corn is used to make ethanol, a fuel that’s now commonly blended with
gasoline. That’s caused corn prices to nearly double so farmers say
they’re planting 12 million acres more corn this year than last year.
That’s the most corn grown in the US in more than 50 years.


Ralph Grossi, director of the American Farmland Trust, says corn needs a
lot more nitrogen fertilizer than other crops. And when it rains,
nitrogen moves quickly from the fields to the waterways. That’s
especially true when grass strips don’t filter the runoff.


Grossi says that nitrogen drains into creeks and rivers from 36 states
into the Mississippi River and eventually to the Gulf of Mexico. There
it causes huge algae blooms that then die, sink, and the decaying
matter causes low oxygen in the water called hypoxia. That’s why the
Corn Belt has been blamed for creating a huge dead zone in the Gulf of
Mexico each year:


“If you increase corn production and don’t add the conservation practices
it will add nutrients and exacerbate problems in the gulf with hypoxia.
But it’s not just in the gulf, it’s problems for every local water
district that has to purify water for drinking and other urban
purposes. As they have to contend with more nutrients, that increases
their costs of cleaning the water.”


Grossi says the best place to clean the water is at the source. He
says that’s why the government must continue to help farmers pay for
grass waterways and buffer strips – those things prevent farm nutrients
from getting into the water in the first place. He says the need for
grass waters is even greater now that so much farmland is being planted
in corn to meet the demand for more ethanol.


For the Environment Report, I’m Julie Grant.

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Zebra Mussels Mend Hearts

Zebra mussels continue to plague many of the nation’s waterways,
crowding out native aquatic life and aggravating fishermen and
engineers. But Brian Bull reports that the invasive species might play
a key part in the surgery room:

Transcript

Zebra mussels continue to plague many of the nation’s waterways,
crowding out native aquatic life and aggravating fishermen and
engineers. But Brian Bull reports that the invasive species might play
a key part in the surgery room:


The Nerites Corporation specializes in bio-degradable, waterproof
tissue adhesives. The concept is familiar if you’ve ever superglued
your fingers together.


The Madison, Wisconsin company is currently developing an adhesive that
could be used in complex heart surgeries, to seal, attach, or re-join
blood vessels. CEO Thomas Mozer says they’ve based their research on
zebra mussels, which attach themselves to surfaces like ship’s hulls
and water intake pipes.


“They adhere to surfaces underwater in the rather messy environment of
the ocean or lakeshore. Where the zebra mussels attach to surfaces.
The kind of environment where synthetic adhesives made by man – prior
to ours coming along – wouldn’t work.”


Mozer predicts it’ll be about three years before the tissue adhesive is
perfected for use in hospitals and clinics.


For the Environment Report, I’m Brian Bull.

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Epa to Survey Health of Us Lakes

The US Environmental Protection Agency will conduct an extensive three-year study on the health of the nation’s lakes. Mark Brush has more:

Transcript

The US Environmental Protection Agency will conduct an extensive three-year study on the health of the nation’s lakes. Mark Brush has more:


The EPA says it will survey a total of 909 inland lakes, ponds, and reservoirs across the country. The survey will be done in cooperation with state agencies and some Native American tribes.


They’re hoping to determine how many US lakes are in good, fair, or poor condition. Researchers will test water samples for levels of nutrients, bacteria from human and animal wastes, some pesticides, and they’ll take a look at the conditions of the waterways’ shorelines.


This study is being done after criticisms have been leveled against the EPA. The Government Accountability Office and the National Research Council, among others, have said that the EPA doesn’t know enough about the condition of the nation’s waterways. They say there’s not enough data to make good water management policy at the federal, state and local levels.


The EPA says the nationwide survey will be completed in 2009.


For the Environment Report, I’m Mark Brush.

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Supreme Court to Hear Landmark Wetlands Case

  • The U.S. Supreme Court is hearing a case that will determine how much power the federal government has over isolated wetlands - wetlands that aren't adjacent to lakes or streams. (Photo by Lester Graham)

On Tuesday, the U.S. Supreme Court will hear arguments that could decide which wetlands the federal government can regulate. The case before the court involves a couple of construction projects in the state of Michigan, but it’s being followed closely throughout the country. The Great Lakes Radio Consortium’s Michael Leland has more:

Transcript

On Tuesday, the U.S. Supreme Court will hear arguments that could
decide which wetlands the federal government can regulate. The case
before the court involves a couple of construction projects in the state of
Michigan, but it’s being followed closely throughout the country. The
Great Lakes Radio Consortium’s Michael Leland has more:


The federal Clean Water Act is supposed to stop people from polluting
streams, wetlands and other waterways that are connected to the
country’s major lakes, rivers and coastal areas, but what if the wetland in
question is located 20-miles from the nearest major waterway? Is it
covered by the Clean Water Act? That’s the question the court will
consider.


In the 1980’s John Rapanos started moving sand from one part of
property he owned in Michigan to another, to fill in some wetlands. He
wanted to sell the land to a shopping mall developer. Trouble is, he
didn’t get permits from the Army Corps of Engineers to fill in the
wetlands. The government says he should have.


“The property has a drainage ditch that runs through it…”


Robin Rivett is a lawyer for the Pacific Legal Foundation. It’s a
property-rights group that is representing Rapanos.


“And because of the movement of the sand on the property, which is
characterized as wetlands, the government came in and has prosecuted
him for actually discharging fill material into the navigable waters.”


Rapanos was charged with violating the Clean Water Act. Washington is
demanding 13-million dollars in fines and fees, and wants him to set
aside about 80-acres as wetlands.


In another case, that’s been combined with the Rapanos matter,
developers in Southeast Michigan were denied permits to fill in wetlands
so they could build a condominium complex. That site is about two
miles from Lake St. Clair, which lies between lakes Huron and Erie.


In both cases, the federal government says the sites fall under the Clean
Water Act because they’re located near navigable waters. Actually, that
term – navigable waters – has evolved over the years and come to mean
“interstate or intrastate waters,” along with their wetlands and tributaries.


The plaintiffs, their attorneys and supporters say the land should be
governed by state environmental regulations, rather than the federal
Clean Water Act, but on the side of the government in this case is 35
state governments, along with many environmental and conservation
groups.


Jim Murphy is a lawyer for the National Wildlife Federation. His group
has filed briefs on behalf of more than a dozen organizations that support
the federal position.


“What is at stake here is the ability of the act to protect the vast number
of tributaries that flow into navigable waters and the wetlands that
surround and feed into those tributaries. If those tributaries and wetlands
aren’t protected under the federal Clean Water Act, it becomes difficult if not
impossible under the Clean Water Act to achieve its goal to protect water
quality.”


Murphy says if the Supreme Court rules that Congress did not intend to
protect wetlands like the ones in this case, then about half the wetlands in
the country could lose their federal protection. Murphy and others on his
side worry that wetlands could begin disappearing more quickly than
they already do today.


Scott Yaich directs conservation programs for Ducks Unlimited – a
wetlands protection group.


“The landowners who have those wetlands would no longer be subject to
getting the Corps of Engineers to review, so essentially they could do
anything they wanted.”


The lawyers for the landowners don’t see it that way. The Pacific Legal
Foundation’s Robin Rivett says individual states would have something
to say.


“I believe there are 47 states that have their own clean water programs.
If it is clear that the federal government doesn’t have jurisdiction over
local waters, the states will step in to protect those waters.”


Maybe they will; maybe they won’t, say environmental groups. They
fear a patchwork of water protection laws. They say it could mean
polluted water from a state with weaker laws could flow into a state with
stronger water protection laws.


Jim Murphy of the National Wildlife Federation.


“The Clean Water Act provides a floor. It provides comprehensive
protection, a floor beyond which states must maintain that level of
protection.”


Those who support the property owners in this case say it’s about more
than clean water – it’s also about land use. They say if the court rules
that waterways and wetlands are interconnected and all deserving of
protection under the Clean Water Act, then what could be left out?


Duane Desiderio is with the National Association of Home Builders,
which has filed briefs supporting the property owners.


“All water flows somewhere. Every drop of water in the United States,
when it goes down the Continental Divide, is going to drain into the
Atlantic Ocean, the Pacific Ocean, or the Gulf of Mexico. Pretty much.”


Both sides are hoping the Supreme Court provides a clear definition of
which wetlands and tributaries Congress intended to protect when it
passed the Clean Water Act. A decision is expected this summer.


For the GLRC, I’m Michael Leland.

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New Sulfide Mining Rules Good Enough?

Environmentalists disagree over whether new mining rules will do enough to protect the waters of the Great Lakes. The Great Lakes Radio Consortium’s Linda Stephan reports:

Transcript

Environmentalists disagree over whether new mining rules will do
enough to protect the waters of the Great Lakes. The Great Lakes Radio
Consortium’s Linda Stephan reports:


A type of mining called deep-shaft sulfide mining is controversial. That’s
because it can cause sulfuric acid to get into the waterways.


Under new rules in Michigan, companies that want to open mines will
have to prove absolutely no toxins will escape the mine and pollute soil,
ground water, or surface waters. That’s even once the mine’s been shut
down.


Marvin Roberson is a Sierra Club representative who helped shape the
regulations.


“That’s an extremely high standard. The fact of the matter is, I think it’s
going to be very, very difficult for most applicants to meet the standards
that are set in this, and those that do will be pretty clearly opening
facilities that won’t be causing environmental harm.”


But an attorney for the National Wildlife Federation says there are some
areas where erosion, landslides, or water pollution can’t be prevented,
and the new rules don’t restrict where a mine can be built.


For the GLRC, I’m Linda Stephan.

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