The fight for dirty water (column)
June 6, 2015
On May 27, the Obama administration published a rule that restores the Clean Water Act's intent and most of its teeth. Both had been extracted by the previous administration.
This rule comes after meticulous vetting by lawyers, scientists and interested parties. Eighty-seven percent of the 1 million public comments were in favor of it. Nonetheless, Congress is working to kill it.
Obama's repair would do absolutely nothing the original, intact law didn't do — less, in fact. But the polluter community has grown fond of the free rein provided by the emasculated version.
In 1972, Congress was so passionate about pollution control that it overrode a Nixon veto of the Clean Water Act by landslide votes: 247 to 23 in the House; 52 to 12 in the Senate. No law since then has done more for fish and wildlife, and few laws have done more for human health. But cleanup is far from finished and has stalled in recent years.
"Cleaner than before" is clean enough for the current Congress. On March 25, the Senate passed a budget amendment that should be called the "Dirty Water Act." The House passed its own Dirty Water Act on May 12.
The bills would place the Clean Water Act on perpetual hold by institutionalizing the enforcement "guidance" implemented by the previous administration. That guidance was made possible by two bizarre Supreme Court decisions that, by themselves, would have done little more than illustrate the cluelessness of that august body on how water and gravity function. The decisions would not have emasculated the Clean Water Act had the Bush administration wished otherwise.
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In 2001, the Supremes ruled that the Environmental Protection Agency and the Army Corps of Engineers can't bust anyone for polluting waters that are completely in one state and considered non-navigable simply because migratory birds feed, breed or nest there.
There are other ways to affirm interstate commerce — fishing, hunting, boating, water supply, wildlife viewing, to mention just a few. The court hadn't ruled against any of these. All the Bush administration had to do to preserve the act's effectiveness was apply one of the other affirmations. Instead, it hatched guidance that allowed polluters to fill and foul millions of what it imagined were "isolated" wetlands, lakes and ponds.
There is no such thing as "isolated waters"; they just seem that way to the ecologically and hydrologically challenged. All manner of wildlife trade between allegedly isolated waters, and all water flows downhill, almost always into navigable water or groundwater.
Then, in 2006, the Supreme Court issued a split decision, the upshot of which was that a body of water can't be protected unless it connects to a navigable water via a "significant nexus." The Bush administration added to the considerable confusion about what a "significant nexus" might be, further undermining the Clean Water Act with vague guidance that no one could understand.
As a result, field agents were loath to engage in the expensive and uncertain documentation of significant nexuses (whatever that meant). So polluters were now free to fill and foul millions of additional wetland acres and 60 percent of our stream miles with little fear of the consequences.
Here's the kind of sense the Bush guidance makes: A developer can get busted if he pipes raw sewage from his condos into your drinking-water supply. But he may well be allowed to pipe his sewage into the stream that feeds that supply.
Leading the charge against Obama's repair rule, and taking credit for the Dirty Water legislation, is the American Farm Bureau Federation. "Nearly every drop of water that falls would be regulated by the federal government," it falsely proclaims. "It could be a gutter, a roadside ditch or a rain puddle." The federation's "Ditch the Rule" campaign derives its name from the polluter-generated untruth that the repair rule would regulate dry ditches.
Such are the tactics of dirty-water defenders. The confused, defective guidance they seek to preserve makes a mockery of public will and the intent of lawmakers who served in 1972.
The Clean Water Act says this: "The Congress hereby declares that it is the policy of the United States that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States." It doesn't say, "except by gravity."
Ted Williams is a contributor to Writers on the Range, a column service of High Country News (hcn.org). He serves as Conservation Editor for Fly Rod & Reel magazine.
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