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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Taking Back the ‘Take Back’ Law?

  • 19 states have passed ‘take back’ laws that require manufacturers to take back old electronics and pay to recycle them. But manufacturers are challenging these laws. (Photo source: dirkj at Wikimedia Commons)

The City of New York is being sued
by the electronics industry. Samara
Freemark reports it’s over recycling
electronic waste, such as cell phones
and computers:

Transcript

The city of New York is being sued by the electronics industry. Samara Freemark reports it’s over recycling electronic waste such as cell phones and computers:

Electronic waste contains all sorts of hazardous chemicals, but safely recycling it is expensive.

So 19 states have passed ‘take back’ laws that require manufacturers to take back old electronics and pay to recycle them.

Now manufacturers are challenging these laws. Two industry groups have sued New York City. They want the city’s take back law overturned.

Kate Sinding is a lawyer with the Natural Resources Defense Council. That group has joined New York in the suit. She says a decision in the case could have consequences beyond electronics take backs.

“There are a lot of deeper questions that are raised by the lawsuit, including issues of corporate responsibility. If somebody’s going to produce something that has toxic components, what is their ongoing responsibility to deal with that, even after it’s sold into the market?”

The court will decide that next year.

For The Environment Report, I’m Samara Freemark.

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Sparring Over Water in the South

  • A federal judge ruled that if Florida, Georgia and Alabama don’t come to a water agreement by 2012, Atlanta has to stop taking drinking water from Lake Lanier. (Photo courtesy of the US EPA)

It’s called “the economic engine of
the South.” Atlanta, Georgia’s population
has exploded in the last two decades.
But with that growth has come environmental
problems, like where to get enough drinking
water. Georgia, Florida, and Alabama
have been fighting over who gets how
much water from rivers that flow through
the states. And, as Tanya Ott reports, a
decision in the federal lawsuit could effect
communities across the country:

Transcript

It’s called “the economic engine of
the South.” Atlanta, Georgia’s population
has exploded in the last two decades.
But with that growth has come environmental
problems, like where to get enough drinking
water. Georgia, Florida, and Alabama
have been fighting over who gets how
much water from rivers that flow through
the states. And, as Tanya Ott reports, a
decision in the federal lawsuit could effect
communities across the country:

Atlanta draws millions of gallons of drinking water each day from nearby Lake Lanier. But Alabama and Florida say it’s such a water hog, there might not be enough water sent on downstream to cool power plants or protect the seafood industry.

“I had no idea! (laughs) I didn’t really realize there was a problem.”

Atlanta-area resident Connie Brand says she knew the state was in a drought last year. She knew she was supposed to conserve water, and she did.

“Not taking such a long shower; not doing small loads of laundry.”

But only recently did she realize how big a problem this could be.

In July, federal Judge Paul Magnuson ruled that under the law Lake Lanier was intended only for things like navigation and flood control – not drinking water. He said if Florida, Georgia and Alabama don’t come to a water agreement by 2012, Atlanta has to stop taking drinking water from Lake Lanier.

“The action of a court could create a public health emergency that would probably rival the effects of Katrina.”

That’s Charles Krautler. He’s director of the Atlanta Regional Commission. He says in the past 25 years Atlanta’s population has more than doubled to 4 million residents and there’s no way to get water to people without Lake Lanier.

“How do you decide who doesn’t have water and who does? Our chairman likes to say, ‘FEMA doesn’t have enough trucks to bring in enough bottled water to deal with the shortfall that would exist.’”

It’s not just an issue for Atlanta. There are more than two dozen similar reservoirs around the country. They were built for navigation, flood control or hydropower. But communities are using them for drinking water. Congress might have to step in to basically retro-actively approve the drinking water use. Cindy Lowery is executive director of the Alabama Rivers Alliance.

“If it goes to Congress, which the court case says that it might have to, it could get even more political and more chaotic really.”

Several members of Congress have said they won’t act until Florida, Georgia and Alabama come to a deal. But Lowery says, so far, the negotiations have been dominated by government agencies and special interests like power companies. She wants a panel of neutral advisors and scientists to study the issue.

In the meantime, Atlanta residents like Connie Brand are left wondering what will happen.

“I’m from a family when they grew up they relied on cistern water, and when it rained you had water, and when it didn’t rain, you didn’t have water. So I’m familiar with having to ration and be careful about those kinds of things. But I don’t think my child or people of my generation, their children, have any concept of conservation of water or anything like that.”

Brand says she just might have to step up her own conservation efforts.

“What was it we had in college? If it’s yellow let it mellow, if it’s brown flush it down? (laughs) that’ll be our new motto! (laughs)”

For The Environment Report, I’m Tanya Ott.

Related Links

Sustainable Prisons Project, Part Two

  • This is the entrance to The Hub. Prisoners who’ve been cleared on good behavior get to work here. This is where the prison’s beekeeping operation, recycling center and gardens are. (Photo by Sadie Babits)

Prisons probably aren’t the first
place you’d expect to find organic
gardens or beekeeping. But in some
prisons in western Washington, inmates
are being taught new skills and getting
involved in conservation work. As Sadie
Babits found out, inmates say they’re
restoring their own lives by helping save
native prairies and growing veggies:

Transcript

Prisons probably aren’t the first
place you’d expect to find organic
gardens or beekeeping. But in some
prisons in western Washington, inmates
are being taught new skills and getting
involved in conservation work. As Sadie
Babits found out, inmates say they’re
restoring their own lives by helping save
native prairies and growing veggies:

Stafford Creek Prison would feel like a college campus if it weren’t for the series of
heavy metal gates and the barbed wire.

(sound of mechanical gates opening)

2,000 prisoners are held at this medium security facility. A select group of them
who’ve been cleared on good behavior get to work in what’s called the Hub. It
doesn’t sound too exciting – until you spot the greenhouses.

(sound of door opening and fans)

Inside the largest greenhouse, there are hundreds of yellow plastic tubes. Three
inmates are filling these tubes with dirt. They are planting seeds to help restore
native grasses.

Toby Erheart is one of these prisoners.

“I don’t know if what we’re doing will make a huge impact on the world, but I know
it’s making a huge impact on this project. It will change the face of the prairies in
western Washington.”

This is the project’s first year. The goal is to grow 200,000 plants for the prairies.

It’s getting hot and muggy inside the greenhouse. So Inmate Jeff Harrigan heads
outside. He leans against the greenhouse as he talks about what it’s like to grow
these plants.

“It’s been a learning experience for me cause I’ve never done nothing like this on the
streets.”

Harrigan has been in and out of prison six different times.

“I’ve just learned doing other things than stealing and doing drugs makes you feel
better about yourself. I feel like I’m putting something back, something that is
saving something, ‘cause it’s saving the butterflies from what they told us.”

Harrigan says he’s never planted anything before until coming to Stafford Creek.

“And actually, it’s kind of cool cause since coming here I asked my girlfriend
something I never asked her before, what her favorite flowers were, just cause I had
started planting flowers. (laughs)”

Turns out marigolds and hens and chicks are her favorites. Two plants, Harrigan
says, that can be found around the prison. When he’s not planting native grasses,
Harrigan works in the prison’s vegetable garden.

“Right here, this is stuff that we’ve planted. There’s onions, radishes, beans.”

So far, he’s helped harvest peas, garlic and 200 pounds of zucchini. The kitchen staff
took that squash and turned into zucchini bread for the inmates.

Harrigan talks about how hard it was for him keep a job when he was outside
prison. Drugs always got in the way. Now he says he feels like he’s doing something
that matters and he hopes this experience in prison will help him when he gets out.

“Actually, it’s teaching me better work ethics too, cause I’ve never really had them
out there. I never really kept a job probably because I didn’t like it, you know.”

Harrigan says he does like gardening. He says he now knows how to germinate
seeds and how to get plants to take off – skills he says could help him get a job once
he’s back in society.

“For a person like me, who still wants to feel human and still got good parts in me,
this stuff brings you back to reality.”

He’s got another year and half to go before he’s free. Harrigan says he’s already told
his girlfriend, when he does get out, they have to plant a garden – something he
hopes will keep him from coming back to Stafford Creek.

For The Environment Report, I’m Sadie Babits.

Related Links

Sustainable Prisons Project, Part One

  • Inmates at Stafford Creek who’ve been cleared on good behavior can work in the prison’s recycling center. (Photo by Sadie Babits)

Some industries and businesses have
been greening up their operations to
save money. Now, another big industry
is getting into the act – American prisons.
California has announced 16 new green
energy projects at prisons that they
say will save millions. And prisons
in Indiana, Virginia, and Nevada are
installing solar panels and wind turbines.
But, as Sadie Babits reports, the state
of Washington is taking their green
program a few steps further:

Transcript

Some industries and businesses have
been greening up their operations to
save money. Now, another big industry
is getting into the act – American prisons.
California has announced 16 new green
energy projects at prisons that they
say will save millions. And prisons
in Indiana, Virginia, and Nevada are
installing solar panels and wind turbines.
But, as Sadie Babits reports, the state
of Washington is taking their green
program a few steps further:

(sound of cutting an onion)

Jason Chandler has already spent four years behind bars for a crime he won’t talk
about. He recently was hired to work here in this organic garden at Stafford Creek
Prison. Before this, Chandler says, he was working here as a janitor.

Babits: “What are you doing?”

Chandler: “Cutting the onions off to prepare for the kitchen. Just cutting the roots
and the stock off. Least the winds going my eyes ain’t watering.”

The Stafford Creek prison in western Washington has this garden, a recycling center,
greenhouses, and a beekeeping operation. Chandler says working these jobs beats
mopping floors and cleaning toilets.

“I had to ask my counselor to put me on the list. There are quite a few people on a
waiting list to get positions like this and they got by an application basis and, if
you’re willing to work, it’s a good job to have.”

It’s a job made possible through the Sustainable Prisons Project – a partnership
between Evergreen State College and the Washington Department of Corrections.
The grant-funded project has been running formally for more than a year. While it’s
clear prisoners like these jobs, officials say it’s too early to tell whether beekeeping
or growing vegetables will reduce recidivism rates.

But prison officials say that wasn’t the project’s main goal.

“My early motivation was money, surely money.”

Dan Pocholke is the Deputy Director of Prisons. It costs more than $30,000 a year to
house just one prisoner in Washington state. The Department of Corrections was
ordered several years ago to save money by doing things like conserving water and
energy.

To do this, Polcholke says they got help from Evergreen State College to “green”
Cedar Creek – a minimum security facility in Washington. He says they got prisoners
involved in cutting back their water use.

“And we started studying our use rates and our consumption rates and, low and
behold, a year later we had brought our water use rates down by an astonishing
level.”

Pocholke says the partnership with the college has another benefit. Prisoners are
learning new skills. And Evergreen State College says one of their goals is being
fulfilled too – to spread environmental science to unlikely places – like prisons.

Some inmates in this program get to do research on everything from raising frogs to
growing native prairie grasses. There’s already been a few success stories. One
inmate has gone on to co-author a scientific paper and is now working on a
doctorate degree.

(sound of recycling)

And, while some prisoners are learning new skills, the goal of saving money is also
being met. Stafford Creek prison has cut the amount of garbage they send to
landfills by more than half by recycling.

Inmate Kevin Madigan says he’d like to keep even more out of the landfill.

“The more self sustaining you can become, the less burden you are on the people out
there. And that in itself is a good thing.”

Madigan rips open a clear plastic bag and dumps the garbage onto this conveyer
belt. He gets paid 42-cents an hour to work here, but for him it goes beyond just a
job.

Madigan says it’s one way for him to make amends for all the trouble he caused
outside these prison walls.

For The Environment Report, I’m Sadie Babits.

Related Links

Styrene Industry Sues Over Cancer Listing

  • Styrene is one component in styrofoam containers (Photo by Renee Comet, courtesy of the National Cancer Institute)

The styrene industry is suing to stop environmental officials from saying styrene could cause cancer and birth defects. Lester Graham reports:

Transcript

The styrene industry is suing to stop environmental officials from saying styrene could cause cancer and birth defects. Lester Graham reports:

Styrene is used in all kinds of products – containers like coffee cups, egg cartons, in construction, in cars.

The state of California wants to add it to a list of cancer-causing materials. The International Agency for Research on Cancer found styrene is “possibly carcinogenic to humans.”

Joe Walker is a spokesman for the Styrene Information and Research Center.

“Styrene is not a carginogen. Any listing that would categorize it as such basically would be illegal and would be erroneous and would have the potential of alarming the public unnecessarily about products that are made from styrene.”

If the court does allow California to put styrene on its cancer list, the styrene industry has a year to prove it doesn’t belong on that list.

For The Environment Report, I’m Lester Graham.

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Neighbors Take Dow Chemical to Court

  • A Dow Chemical sign next to a river in Michigan contaminated with dioxin. Homeowners downstream are still waiting for their case against Dow to be heard. (Photo by Vincent Duffy)

The world’s largest chemical company is fighting a lawsuit filed because of dioxin pollution. Rick Pluta reports neighbors downstream from Dow Chemical’s headquarters in Michigan want something to budge in the case:

Transcript

The world’s largest chemical company is fighting a lawsuit filed because of dioxin pollution. Rick Pluta reports neighbors downstream from Dow Chemical’s headquarters in Michigan want something to budge in the case:

A Dow chemical plant near the company’s headquarters in Michigan produced all kinds of products over decades, including Agent Orange. Dioxin polluted the Tittabawassee River and its flood plain. A group of 173 people have sued, after learning their property is contaminated. Many of these people have been involved in this litigation for six years. The courts still have not gotten around to their case. Attorney Theresa Golden took their case to the Michigan Supreme Court.

“The clients obviously are concerned and disappointed that it’s taken us long to get to this point.”

The group wants class action status, so every single homeowner does not have to take on the corporate giant. There are a couple thousand property downstream of this plant. And Dow does not like the idea of potentially having to pay every one of them.

For The Environment Report, I’m Rick Pluta.

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Farm Workers Back in Court to Fight Pesticide

Environmental groups are back in
court to challenge the use of the main pesticide
used in growing cherries and apples. Bob Allen
reports the environmentalists had set aside their
lawsuit while waiting for EPA to issue new rules
for applying the chemical during a phase-out period:

Transcript

Environmental groups are back in
court to challenge the use of the main pesticide
used in growing cherries and apples. Bob Allen
reports the environmentalists had set aside their
lawsuit while waiting for EPA to issue new rules
for applying the chemical during a phase-out period:


Azinphos-Methyl or AZM is a highly toxic chemical that
affects the nervous system. Last November, EPA released
stricter rules for applying it and they gave apple and
cherry growers another six years to phase it out.


Environmental groups say that’s much too long, and they’ve
taken up their suit again.


Shelley Davis is with Farmworker Justice. She says EPA was
supposed to weigh the cost to growers against the health
risks to workers and their families.


“The problem here is that EPA didn’t do that. All it did
was total up the financial benefit to the growers. And
that’s what we said to the court is not a fair deal.”


Regulators say growers need more time to learn to use
alternative pesticides.


For the Environment Report, I’m Bob Allen.

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Battle Over the Right to Grow Rice

  • Roger LaBine winnows the wild rice. (Photo by Michael Loukinen, Up North Films)

Since European settlers first came to this country they have had serious conflicts with Native Americans. The GLRC’s Sandy Hausman reports on one modern-day dispute between a Native American tribe and communities in the upper Midwest:

Transcript

Since European settlers first came to this country they have had serious conflicts with
Native Americans. The GLRC’s Sandy Hausman reports on one modern-day dispute
between a Native American tribe and communities in the upper Midwest:


(Sound of Ojibwe music)


The Ojibwe tribe first came to the north woods of Michigan and Wisconsin hundreds of
years ago. They say their migration from the east coast was guided by prophets. Those
prophets told them to keep moving until they came to a place where food grows on the
water. Roger Labine is a spiritual leader with the tribe. He says that food was wild rice:


“This was a gift to us. This is something that is very, very sacred to us. This is very
important, just as our language. This is part of who we are.”


For hundreds of years, wild rice was a staple of the tribe’s diet, but starting in the 1930s,
private construction of hydroelectric dams pushed water levels in rice growing areas up.
High water killed most of the plants and took a toll on wildlife. Bob Evans is a biologist
with the U.S. Forest Service. He says fish, bird and insect populations dropped
dramatically:


“Black tern is a declining, threatened species that is known to use wild rice beds,
Trumpeter swans. They’re a big user of rice beds. Um, just a whole lot of plants and
animals. It’s really a whole ecosystem in itself.”


So in 1995, the tribe, the U.S. Forest Service and several other government agencies
demanded a change. A year later, the federal government ordered dam operators to drop
their maximum water levels by 9 inches. The dam owners appealed that decision, but in
2001 a federal court ruled against them.


That fall, the Ojibwe who live on Lac Vieux
Desert harvested nearly 16 acres of wild rice and this summer, the tribe is tending more than 55 acres.
But the resurgence of rice beds comes at a price. Lower lake levels have left docks in this
boating community high and dry, created muddy shorelines and made long-time residents
and summer boaters angry:


“I used to come here and dock all the time. We picnicked here. I had to walk in 50 feet,
because there wasn’t enough water to float a pontoon, and it’s that way all around the
lake.”


Ken Lacount is president of the Lac Vieux Desert homeowners association. He first
came here in the 1940s and doesn’t see why his cultural traditions should take a backseat
to those of the Ojibwe:


“My grandfather built one of the first resorts. I fished in Rice Bay my entire life. That
was his favorite place to take me.”


Lacount is bitter. He and his neighbors feel powerless to change the situation, since a
federal court has ruled for the Ojibwa. Defenders of that decision say water levels are
especially low because of a prolonged drought in region. When that ends, they predict
lake levels will rise, and homeowners on Lac Vieux Desert will be happier.


(Sound of paddling)


Such conflicts are nothing new. Ron Seeley is a reporter for the Wisconsin State Journal. He’s covered Native American issues for more than 20 years. Paddling through the rice beds, he recalls an earlier battle
over fishing rights. In the late 80s, a court ruled the Ojibwe were entitled by treaty to
spear fish each spring. Local fishermen worried the practice would destroy their industry:


“Sometimes thousands of people would show up at the landings on a spring night. Tribal
members from all over the upper Midwest would come to support the spearers and drum
and chant. The anti-Indian forces were arrested for using wrist rockets or real powerful
sling shots to shoot pellets at the tribal members while they were out spearing. It was a
violent time up here.”


As court after court upheld the rights of native spear fishermen, and as commercial
fishermen continue to prosper, hostilities subsided and now, as the Native Americans prepare for
their biggest rice harvest in more than 50 years, the Ojibwe hope that the controversy over water levels
will also die down. Tribal leader Roger Labine says wild rice is a symbol of the Ojibwe’s survival:


“This is an endangered species. It’s something that we’re fighting to save, just like the
eagle, just like the wolf. We were put here to care for Mother Earth and all the gifts that
the creator gave us.”


And having won the first battle to restore rice beds, Labine is hoping to secure even
greater protection for these wetlands by asking the federal government to declare the rice
beds historic.


For the GLRC, I’m Sandy Hausman.

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Canada and U.S. Automakers Agree on Emissions Deal

  • Auto emissions are a hot topic when it comes to compliance with the Kyoto Protocol. Canada has found a way to get automakers to voluntarily cut emissions. (Photo courtesy of the EPA)

Canadian officials have reached a deal with U.S. automakers to reduce greenhouse gas emissions. The deal is expected to help Canada meet its obligations under the Kyoto protocol. The Great Lakes Radio Consortium’s Dustin Dwyer has more:

Transcript

Canadian officials have reached a deal with U.S. automakers to
reduce greenhouse gas emissions. The deal is expected to help Canada
meet its obligations under the Kyoto protocol. The Great Lakes Radio
Consortium’s Dustin Dwyer has more:


Last year, Canadian officials threatened to adopt a strict California car
emission regulation. That standard calls for a 30 percent cut in emissions
by 2016.


But Canadian officials now say they have reached a voluntary agreement with
the automakers. They say car makers have said they will reduce greenhouse gas
emissions by 5.3 million tons by 2010. They say that’s about a 25 percent
decrease.


Mike Flynn is a transportation analyst at the University of Michigan. He
says Canada’s agreement could still have an impact on U.S. cars.


“It may be cheaper for the automakers in the long run to manufacture the same higher-standard vehicles and sell them in both the U.S. and Canada than to have a small run specifically tailored for Canada.”


Automakers continue to fight California’s emissions regulation in court.
They say the law exceeds the state’s power.


For the GLRC, I’m Dustin Dwyer.

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