There is no question but that the Clean Water Act has led to enormous improvements in water quality throughout the United States. Funding for publicly owned treatment works (POTWs) has largely eliminated the use of the nation's waterways for the disposal of raw sewage. Most point source discharges are now subject to permitting and technology-based and/or water-quality based effluent limitations.
There is also no question that the Clean Water Act is a statute that is still evolving to address water quality challenges that have become visible once the turbidity of sewage and point source discharges had been largely cleared away. The collection and discharge of stormwater, for example, has evolved from being largely unaddressed, to being the subject of much litigation and court decisions, to being incorporated explicitly into the Act through congressional amendments that imposed permitting requirements on significant stormwater discharges. Even so, stormwater details are still being worked out, and we'll see what the U.S. Supreme Court does regarding runoff from forest roads this term. Contamination of beaches with bacteria and viruses in upstream sewage discharges also emerged as a problem for coastal communities, and other amendments to the Act added water quality standard requirements to help keep the nation's beaches healthy.
But the task is clearly not done yet. The EPA and many states are now struggling to deal with nutrient pollution and the corollary to that task: how to incorporate traditionally exempt farming operations into the Act's divisions of regulatory authority, whether through state nonpoint source programs, state agricultural water quality programs, or increased use of state and multi-state total maximum daily loads (TMDLs), as seen with the Chesapeake Bay. Contamination of waters with waste pharmaceuticals—pollutants that POTWs largely don't (and maybe can't, at least not cheaply) treat—looms as one of the next major water quality problems.
Full textAs the Clean Water Act (CWA) turns 40, it is useful to compare it to the cars on the road in 1972. Big cars, some still adorned with tail fins and grills, ruled the road, running on 36 cents per gallon gas. Forty years later, we look back on the early 70s and ask how could we consider these cars, and what we wore driving them, so cool. Today, we are driving smaller, better engineered and designed fuel efficient cars.
If only it were so for our water protection laws. Instead, we are still trying to maintain and improve the quality of our nation’s waters and the aquatic ecosystems that they support with a clunky piece of legislation written four decades ago. For a long time, most in the environmental community have recognized that the CWA needs to be traded in.
The environmental community has three options for the future of the Act. First, it could spend all its time keeping the clunker running as industry uses the Republican Party to eviscerate it or return to pre-1972 inconsistent and largely non-existent state protection. Second, there is a well-developed incremental reform agenda. It includes closing gaps such as non-point sources and confined agricultural run-off, reforming the dysfunctional Section 404 Corps-EPA relation, and strengthening the long-running TMDL program. The third option is to work toward trading in the Act for a new model, an Audi A8 Clean Water Act, if you will.
Full textImagine the ecosystem in which salmon evolved and thrived in the Northwest. As the region’s celebrated rain falls through old-growth forest, it is filtered through duff as it makes its way to one of thousands of pristine streams. It is in those cold, clear waters that salmon begin their lives among rock and pebble, the product of their parents’ long journey from the sea, a journey they too will make in years to come.
But in modern times, those salmon that survive their first years – avoiding predators, traversing past dams and through pollution, travelling the Pacific coast in search of food – often return to streams that are unrecognizable from just a few years prior. The problem is that when the fall rains arrive, the runoff is no longer filtered through forest and duff, but falls on bare, logged hillsides and logging roads and is often channeled through culverts directly into the rivers and streams. That once-unfiltered runoff is now full of sediment pounded down into a fine powder by a constant stream of heavy logging trucks. Meanwhile, at the exact same time that the rains start to wash sediment into streams, salmon begin their journey upstream from the ocean, drawn by instinct and evolution to the place of their birth to spawn and (sometimes) die. That sediment, channeled in large quantities into the water, can smother eggs, scrape gills, and interfere with feeding.
Last year the Ninth Circuit Court of Appeals denied a rehearing en banc to review their landmark 2010 decision that runoff from logging roads are “discharges” under the Clean Water Act and therefore require permits. In that case, NEDC v. Brown, the Ninth Circuit held that timber operations are liable under the Clean Water Act (CWA) for the in-stream damage caused by sediment-laden runoff from their logging and access roads. After some excellent legal work by Portland’s CRAG Law Center and Lewis and Clark Law School’s Northwest Environmental Defense Center, the court found that polluted runoff from logging roads, both private and public, is subject to regulation under the CWA and therefore requires a permit under the National Pollutant Discharge Elimination System (NPDES). The impact of the decision could mean that logging road runoff is finally controlled, providing a boost to endangered and threatened salmon recovery.
Full textThis post is first in a series marking the 40th anniversary of the Clean Water Act.
On October 18th, the nation will celebrate the 40th anniversary of the Clean Water Act. This landmark piece of legislation has proven remarkably successful. Water pollution discharges from both industry and municipal sewer systems have declined sharply, the loss of wetlands has been cut decisively, and water quality has broadly improved across the country. The Clean Water Act is, in short, a real success story. It stands as a tribute to the foresight of those in Congress who passed it, as well as to the men and women in both state and federal regulatory agencies who have worked so hard, and for so long, to restore the integrity of our nation’s waters.
The Act, however, is showing its age. Twenty-five years have passed since it was last amended in comprehensive fashion, and more than a little fine-tuning is necessary to finish the task that began in 1972. The most significant problem involves nonpoint source pollution—the indirect discharge of polluted runoff from fields and roads, clear cuts, and parking lots. The Act never addressed nonpoint source pollution in a straightforward way. Instead, it was treated as something of an afterthought left primarily in the hands of state and local government, and they have primarily relied upon voluntary management practices to control polluted runoff. As a result, nonpoint source pollution has evolved into the largest single source of water quality impairment in the country. These diffuse sources of water pollution are, furthermore, much more diverse than we once thought. In addition to obvious sources such as polluted runoff from agriculture, urban areas, logging operations, and mines, nonpoint source pollution also includes cross-media transfers, including the deposition of air pollutants such as mercury and nitrogen, into our waters.
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I’ll forego reporting on India today to address a new development in the post-Hurricane Katrina litigation: Judge Jerry Smith’s breathless hairpin turn in the “Katrina Canal Breaches Litigation.” On Monday, Judge Smith, writing for a three-judge panel of the Fifth Circuit U.S. Court of Appeals, dismissed a lawsuit against the U.S. Army Corps of Engineers for flood damage during Hurricane Katrina, a case that could have exposed the federal government to billions of dollars in damages over the next several years. Judge Smith’s opinion reversed a decision he wrote just six months ago, representing the same three-judge panel, which had ruled the plaintiffs’ claims were legitimate and must move forward.
Why the switch? The new opinion suggests it is because the first time around all three judges somehow misunderstood the facts. But that’s unconvincing. A look at the court’s earlier opinion and the trial court’s original findings of fact shows that the Fifth Circuit got it right the first time. What’s more, this sudden reversal could deny thousands of flood victims the means to build back their lives, while narrowing the chances that the government can be held accountable for even the most pedestrian mistakes. I’ll return to these points in a moment, but first some background.
The Katrina Canal Breaches Litigation involves claims by residents of New Orleans and St. Bernard Parish for damages resulting from storm surge allegedly funneled through the Mississippi River Gulf Outlet (MR-GO), a navigation channel that has since been de-authorized and “plugged” for safety reasons. (I last blogged about this case here.) Plaintiffs argued that the Army Corps's negligence in design, construction, and maintenance of MR-GO increased Katrina’s storm surge and made the levee system more vulnerable than it otherwise would have been. Plaintiffs were particularly troubled by the Corps’s refusal to prevent erosion by armoring the banks at the time of construction and in the several years thereafter. The lack of armor—or “foreshoring,” as engineers call it—caused the channel’s width to expand considerably, leaving a perfect path for a bulldozing hurricane.
Full textThe most interesting issues to watch in Arkansas Game and Fish Commission v. United States, which the Supreme Court will hear next week on October 3, are ones the parties have not addressed. The central issue in the case as framed by the principal briefs is whether a temporary increase in the frequency of inundation of floodplain property as a result of government action should give rise to liability under the Takings Clause. But there are two other -- arguably more important -- issues lurking in the background that have barely received mention: (1) whether the claim is barred by the doctrine of sovereign immunity and (2) whether the plaintiff can claim an impairment of its rights as a riparian property owner under state law.
This case involves the unusual situation of one governmental entity, a state agency, suing another government, the United States, for “just compensation” under the Takings Clause. The Arkansas Game & Fish Commission claims the U.S. Army Corps of Engineer’s temporary modifications of the operation of its Clearwater Dam in Missouri over the span of half a dozen years resulted in increased flooding of commission-owned timberlands 120 miles downstream in Arkansas. The primary mission of the commission is habitat protection, but its demand for compensation under the Takings Clause rests on an asserted “physical invasion” of its property which allegedly caused harm to commercially valuable timber.
The United States has not raised the issue, but there is a strong argument that the claim is barred by the doctrine of sovereign immunity. Sovereign immunity is rarely an issue in a takings case against the United States because the Tucker Act constitutes a general waiver of immunity from takings claims. But takings claims arising from flood damage present a special case because of a provision of the federal Flood Control Act which states: “No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood water at any time.” This provision has been raised most frequently as a defense to tort claims, but it also has been raised in takings cases, and certainly is broad enough to bar them. Given the general rule that the courts should resolve interpretive doubts in favor of preserving sovereign immunity, there is a solid sovereign immunity defense in this case.
Full textToday, CPR releases a new white paper examining criminal enforcement of water pollution laws in Maryland. In Going Too Easy? Maryland’s Criminal Enforcement of Water Pollution Laws Protecting the Chesapeake Bay, CPR President Rena Steinzor and I analyze a number of key questions concerning the critical, deterrence-based enforcement mechanism of criminal prosecution and its role in the Chesapeake Bay restoration efforts:
In answering these questions, we reviewed publicly available data on criminal enforcement cases at both the state and federal level involving water pollution in Maryland, interviewed a number of past and present environmental prosecutors, and reviewed the existing policies and laws that enable criminal enforcement for certain kinds water pollution violations.
Our overall finding was that criminal enforcement was underutilized in Bay restoration efforts, by both federal and Maryland authorities. A few of the specifics:
Based on these and a number of other findings, we make several recommendations to encourage a stronger, more deterrence-based criminal enforcement program for water pollution violations in Maryland. From restoring emphasis on environmental criminal enforcement to developing and participating in a Chesapeake Bay criminal task force, the recommended actions and policy improvements will allow a critical enforcement tool to help in achieving a cleaner Chesapeake Bay.
Full texta(broad) perspective
Today’s post is the last in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties. Each month, this series will discuss one of these treaties. Previous posts are here.
United Nations Convention on the Law of the Sea (UNCLOS) and
Agreement Relating to the Implementation of Part XI of the Convention
Adopted and Opened for Signature on December 10, 1982.
Agreement on Part XI Adopted on July 28, 1994.
Entered into Force on November 16, 1994 (UNCLOS) and July 28, 1996 (Part XI)
Number of Parties: 162 (UNCLOS) and 141 (Part XI)
Signed by the United States on July 29, 1994.
Sent to the Senate on October 7, 1994.
Reported favorably by the Senate Foreign Relations Committee on
February 25, 2004, and October 31, 2007
The United Nations Convention on the Law of the Sea (LOS Convention) establishes a comprehensive framework for using and protecting the world’s oceans, which cover roughly 70 percent of the planet and contain a variety of natural resources vital to nearly every nation. New technologies have made it possible to reach farther and deeper into the ocean to extract and harvest resources, resulting in increased pollution and a clear impetus to establish a legal framework to govern activities in the high seas.
Full textThe Administration has just missed another deadline on issuing the final revised “boiler MACT” rule. The revised version of the rule will provide less pollution reduction than the original version, but is still expected to prevent thousands of deaths each year.
The EPA had pledged for many months that the rule would be finalized in April. It later said the rule would be finalized in the “spring.” On May 17, the agency sent the rule to the White House’s Office of Information and Regulatory Affairs (OIRA).
Executive Order 12,866 says OIRA has 90 days to review a rule, with a possible 30 day extension. OIRA’s website doesn’t list the two related Boiler MACT rules as having an “extended” review, but I’ll give them the benefit of the doubt. Friday, however, was 120 days after May 17, and the rules remain in OIRA’s grasp.
Full texta(broad) perspective
Today’s post is the seventh in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties. Each month, this series will discuss one of these treaties. Previous posts are here.
Persistent Organic Pollutants (POPs) are toxic substances that remain in the environment for long periods of time. They travel long distances via the wind and water and bio-accumulate in the food chain. POPs have been found virtually everywhere on earth, including thousands of miles away from any place they have been used, such as pristine areas of the Arctic.
The Rotterdam Convention, the Stockholm Convention, and the POPs Protocol to the Convention on Long Range Transboundary Air Pollution (LRTAP) each address aspects of the international movement of toxic substances. Each of these agreements has been signed by the United States, but cannot be ratified until implementing legislation is enacted.
The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade
Adopted and Opened for Signature on September 10, 1998
Entered into Force on February 24, 2004
Number of Parties: 144
Signed by the United States on September 11, 1998
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