Jon Devine's Blog: Saving Wildlife and Wild Places

Fearing For Our Fuel-Feathered Friends

2010-05-06T17:22:10Z

I read a weird news item about the Gulf of Mexico oil spill today. Louisiana’s Department of Wildlife and Fisheries is “considering partnering with the Department of Corrections to train prisoners to help clean birds that may be impacted by the oil.” Am I alone in thinking that this planning represents a fairly stark acknowledgement that the spill is going to be bad news for a lot of birds?

I like to brag that I am a published ornithologist, having been generously listed by a college professor of mine as a co-author on a paper he produced based on Savannah Sparrow data that some other students and I helped collect. But this is not a post by a scientist; for that, you should have a look at the pieces produced by many of my truly qualified colleagues writing on this disaster. Rather, this is a post by someone who, as a three year-old 37 years ago, insisted on being served dinner in a nest constructed of pillows under the table, and on being told that the evening’s meatloaf was in fact birdseed. I am a lifelong and unabashed bird guy, and I am terrified about what’s about to happen to them in the Gulf.

Apparently, one of the places that the spill is likely to hit first is the Breton National Wildlife Refuge, which was established by President Teddy Roosevelt and which today is teeming with all kinds of sea birds, from pelicans to terns to wading birds. (As an aside, can anyone name me something cooler in nature than seeing shorebirds, of many different species, flying at high rates of speed in a flock that blocks the sun, banking and diving together as though they’re physically joined to one another? Absolutely incredible.) NRDC’s team visited there yesterday, and you can immediately notice the incredible number and diversity of birds in just a brief video they posted online.

Wherever this spill goes, it is bad news for the bird species that come in contact with it. Oil-coated feathers are less useful for flying or swimming and are poor buffers against temperature extremes. The oil can be toxic to the critters that birds prey upon, and eating oil-contaminated prey can also cause long-term harm to birds. Also, as my colleague David Pettit recently wrote, the wetlands that serve as the home and breeding ground for numerous birds are particularly susceptible to oil damage and particularly hard to get clean.

And talk about a cleaning challenge – the International Bird Rescue Research Center has an informative, if incredibly dispiriting, summary of what is involved with cleaning a single bird. Speaking as someone who has wrestled with relatively small birds, I promise you it is extraordinarily difficult to take a bird (which – in a panic – will often poop or puke on you), and manipulate it. I can only imagine how hard it will be to adequately clean an oiled bird.

So, the important thing in the coming days and weeks will be to try to minimize the degree to which birds come in contact with the oil. I am sure this will be hard using containment structures like floating booms, especially since birds – you might have heard this – fly.

NRDC and the Cornell Lab of Ornithology have a wonderful website – WeLoveBirds.org -- bringing together birders from all over. The site already has a couple of posts about the spill, and one can post photos and videos online there. For those of us who love birds and are concerned about the spill’s effects on them, I urge anyone with anything to share with the larger birding community to visit there and do so.

(Photo courtesy USFWS.)

Earth Day (plus 7) and Your Water

2010-04-29T15:00:03Z

This is my what’s-up-with-water-on-Earth-Day post. Alas, it is a few days late, but every day is Earth Day, right? Truthfully, every day is a day with too much on the to-do list, and this one slipped. Anyhoo, please forgive the delay.

On Earth Day each year, a bevy of media stories remind Americans that rivers used to catch on fire and raw sewage floated around major cities. I am just as happy as the next environmentalist to honor Earth Day, but what I really like to celebrate is the law that stopped the fires and got rid of the sewage: the Clean Water Act.

Both the law and Earth Day grew out of the same spirit 40 years ago: a realization that pollution was pummeling our environment and a belief that we could stop it.

Four decades later, I use the Clean Water Act every day in my work, and I am awed by what it has accomplished. Yet there are days where I want to pull my hair out because I see entire classes of pollution get a free pass under the law, or critical water bodies being denied its protection.

Like anyone or anything nearing 40, it’s worth asking whether the Clean Water Act has lived up to its potential. Not quite, but it’s done a lot. The Act has transformed the way Americans view water. We used to treat water bodies like big wet trashcans--free and convenient places to dump everything from oil to chemicals to sewage.

The Clean Water Act changed that. By creating a legal obligation to control pollution, it put a value on the preservation of water bodies. And as water bodies got cleaner--even the famously burning Cuyahoga--Americans started to appreciate them more. People actually use the Cuyahoga, the Potomac (to which the small stream pictured below drains), the Hudson, and the Chesapeake for something other than dumping now.

The Clean Water Act accomplished this remarkable feat in two central ways. First, it prevented factories and other major sources from polluting without prior authorization--such as a permit. This requirement gives pollution control experts a chance to look at a discharging facility and insist on operating conditions that minimize pollution and consider how much pollution the receiving water body can withstand.

Second, it created technology standards--standards which ensured that as part of the cost of doing business, companies had to plan to minimize their discharges as much as possible. These standards apply no matter where you go in the country, and this “floor” of minimum control levels means that there is a consistent set of basic expectations. In other words, polluting waters in Colorado typically will mean the same thing for an industry as polluting waters in Rhode Island. This helps avoid state-shopping by companies seeking to minimize their regulatory obligations.

These mechanisms helped the Clean Water Act change the nature of how most companies interact with water resources. Yet there are still pollution problems that remain beyond the reach of the law, either because of the law’s basic structure, or because of problems that did not arise from the Act, but from misapplication of it.

In the first camp, the Clean Water Act doesn’t control diffuse sources of pollution like runoff from agricultural fields nearly as well as it deals with typical industrial and municipal facilities. This means that in places like the Chesapeake Bay and the Gulf of Mexico, some of the most troublesome pollutants-- phosphorous, nitrogen, sediment--go largely unregulated.

Similarly, the Act is limited in its ability to drive restoration. The law protects what we have against harm, but a whole lot of harm was inflicted before it was passed. Wetlands and floodplains--natural systems that filter and replenish water supplies--were decimated or disconnected from other parts of their watersheds, and yet the Clean Water Act doesn’t guide us in how we can revive wetlands, reconnect rivers with their floodplains, and make waterways more resilient to the impacts of climate change.

Adequately addressing these kinds of water quality stressors under the Act would improve the law greatly. For example, Congress is currently considering a Clean Water Act amendment focused on a watershed that is burdened by polluted runoff as well as conventional sources – the Chesapeake Bay – and the bill would hold states accountable for achieving necessary reductions from all sectors. This would be a welcome improvement. Congress is also weighing measures to incentivize efforts to enhance watershed resiliency; for instance, we have supported legislation to promote green infrastructure to reduce stormwater pollution from urban and suburban landscapes as well as legislation to promote planning by communities to adapt to the expected effects of climate change on water resources.

In addition to constructing these additions, policymakers who care about water should focus on the fact that the Act’s foundation also needs a big repair. As I’ve written a number of times before, the law desperately needs to be fixed to address the problems caused by two misguided Supreme Court decisions. There are now bills in both houses of Congress to do so, both of which represent compromises from prior legislative efforts in this regard, but which still retain the core aspect of restoring protections to a host of waters that have been cut out of the Act in the last decade or that are in legal limbo today. Expeditious movement on these efforts is critical.

So, there you have it – the Clean Water Act on Earth Day (well, a week after). It’s still an amazing law, even as it prepares to enter middle age, but we shouldn’t shy away from improvements that will make it effective into its golden years.

New Bill Would Finally Fix Clean Water Act

2010-04-21T18:35:15Z

Ever notice that when you discover something, you then start seeing it everywhere, and can’t believe you weren’t aware of it previously? That’s how I’ve spent the last several years of my life, with the object of my obsession being small, often unglamorous, ponds, streams, and wetlands. (Hey, cut me some slack – I’m a nerdy environmentalist.)

Everywhere I go now, ever since I learned that the Supreme Court decided a couple of cases and suggested that the Clean Water Act might not have been intended to reach various kinds of waters, I see water bodies that used to be covered by the pollution control programs of the law, but now are in legal limbo. Today, however, I am happy to report that Congress has taken another step forward in the push to set the law right again – leaders in the House of Representatives introduced a bipartisan bill they call America’s Commitment to Clean Water Act.

Let me try to put the issue in context with a few examples:

After the Supreme Court decisions and the administrative actions and litigation that they spawned, I’m not 100% sure that the stream in my neighborhood – Four Mile Run in Arlington, VA – will be fully protected. There are places where the stream is a far cry from its natural state, as in the picture above (the stream going under Route 66), and some industry lawyers have suggested that man-made features are less susceptible to protection. Further, a federal appeals court in the southeast ruled that even perennial streams like Four Mile Run need to be proven to be significant enough to the health of downstream “navigable” waters to be covered by the law.

I’m really worried that the little tributary above (which flows into Four Mile Run at the bottom of the picture) is in real trouble. It does not appear to flow continuously, making it more vulnerable under some interpretations of the Supreme Court’s decisions, and its small size will pose a challenge to demonstrating that it is important enough to deserve protection in light of the Court’s decisions.

On the other hand, since the law still at least protects so-called “traditionally navigable waters,” I have no concerns about the Patuxent River, seen above being navigated by a particularly handsome canoeist.

What’s funny – sad, really – is that even though all three of these streams ultimately drain to the Chesapeake Bay, they are in different positions legally, with some being more likely than others to be vulnerable to being polluted without the polluter following the Clean Water Act. Other water bodies, like so-called "isolated" wetlands (which perhaps include the one below in southern PA, depending on how "isolated" is "isolated"), are even worse off; such waters have essentially been written off since the Supreme Court's decisions.

None of this makes sense when you look at the history of the law. Since 1972, when Congress totally overhauled the Federal Water Pollution Control Act and re-made it into the law that we now call the Clean Water Act, a variety of anti-pollution safeguards have applied to "navigable waters," which Congress defined to mean "the waters of the United States." That is, any water body that is a "water of the U.S." is protected by the federal law from industrial and municipal wastewater discharges, sewage dumping, oil spills and outright destruction.

It had been clear since early on that "waters of the U.S." are not limited to navigable ones, so inland wetlands, small and intermittently-flowing streams, and other non-navigable features were protected. The Supreme Court upset that understanding by saying that "navigable" has some lingering -- though highly ambiguous -- meaning, and that waters can only be protected based on their connections to traditionally navigable ones. The confusion described above is the result.

The bill introduced today will effectively restore the law's clear protections to water bodies at risk. It eliminates the term “navigable waters” in order to avoid future judicial mischief, defines protected waters in keeping with longstanding regulations, and incorporates a set of principles for legislation the Obama administration laid out last May.

It is a compromise bill, in that it contains new exemptions that the statute did not previously include. It also removes provisions that were included in prior bills but had drawn fire from opponents of comprehensive clean water protections, who made outlandish claims that the bill over-reached in protecting waters. Nevertheless, we are grateful to the sponsors of the legislation for beginning this critical dialogue in the House, and look forward to speedy movement to get this through Congress and to President Obama's desk.

A Worrisome Report Card for the Chesapeake Bay

2010-04-07T20:27:07Z

This post was co-written with Alys Campaigne of Engage Strategies.

Today, the Chesapeake Bay Program, a partnership of state and federal entities advised by a number of non-governmental folks, released its annual report card: the Bay Barometer. Although there were a few scraps of good news, such improving wildlife habitat and significantly increased numbers of adult blue crabs, the picture is generally grim. Despite decades of research and hundreds of millions of dollars spent, only 24% of the Program’s water quality goals have been met. In particular, only 12% of the Bay plus its tidal tributaries meet dissolved oxygen standards aimed at supporting aquatic life.

Runoff from urban and suburban stormwater remains one of the worst pollution culprits, with growth in pollution from those areas significantly offsetting gains made elsewhere. The message is clear: we must do more to reduce the pollution draining into the Bay.

Elements of this solution are hinted at in the report. It notes that the Chesapeake Executive Council – which includes the governors of Bay states and the head of the Environmental Protection Agency –identified specific recovery milestones for the six Bay states and the District of Columbia, which it expected to achieve watershed-wide reductions in nitrogen and phosphorus pollution (15.8 million pounds and 1.1 million pounds, respectively) by the end of 2011. These kinds of quantifiable targets are useful, but they need teeth to succeed.

EPA can bare some teeth under existing law. EPA will soon issue a proposed permit for the stormwater system in the District of Columbia, which the agency needs to ensure is a strong model of pollution prevention that can be duplicated elsewhere in the watershed. The best tools to significantly reduce municipal stormwater pollution – a suite of techniques we call “green infrastructure” -- are well-known and must be integrated into stormwater permits. Moreover, EPA is contemplating new rules on polluted runoff from large-scale animal feedlots, an action that will be critical for the Bay’s fate. Strong new approaches to both of these sectors are long overdue.

But we can’t ignore another obvious hurdle to success: cost. Severe budget shortfalls at the federal, state and local levels are forcing hard decisions about where to spend scarce public funds. Despite compelling data that much more is needed to pay for the stormwater upgrades to restore the Bay, finding those funds will be difficult.

That’s one more reason why everyone in the watershed, from local governments, to homeowners, to farmers, should support enhancing the Clean Water Act to require improvements and to provide the tools to accomplish them. Congress is presently considering the Chesapeake Clean Water and Ecosystem Restoration Act, which has been introduced by Senator Cardin and by Congressman Cummings. The bill sets firm, enforceable targets for the key pollutants that degrade the Bay watershed, and institutes timelines for cleaning up the Bay and authorizes significant new federal investment and technical assistance to get there. It also taps the power of an interstate market that will allow sources of pollution to forego expensive controls in one place if others can more affordably make the same reductions elsewhere. A study by the World Resource Institute reports that this interstate trading market could cut stormwater compliance costs while generating $45-300 million a year (depending on different factors) for farmers who implement conservation practices (and sell any leftover credits) to protect water quality.

In recent months, opponents of clean water have been raising a ruckus in opposition to the bill, suggesting that it will lead to a heavy-handed EPA coming in to manage the day-to-day operation of farms and other activities in the watershed. This is absurd. But, because the idea of enforceable rules is daunting to some folks who have grown accustomed to voluntary compliance, it is easy to scare people about what this bill will do. In fact, the bill charges local authorities with the responsibility for meeting pollution reduction goals in the ways that make the most sense for their particular states. The Bay Barometer reminds us once again that we can’t afford to wait to get this effort underway in earnest.

Blind Justices

2010-03-01T18:02:12Z

When I was applying to law schools, I remember writing that I wanted to become a lawyer, rather than a scientist, because that’s where the action was – lawyers would actually make environmental policy. This was ridiculously small-minded of me, and over the course of my career I have come to learn that the worlds of science and policy are inextricably linked. Unfortunately, not everyone learned this lesson -- today’s New York Times has a compelling story of what happens when a bunch of lawyers (in this case, five members of the United States Supreme Court) ignore science.

As I have written here, here, here, here, here, and here, the Clean Water Act – our country’s chief safeguard against water pollution – has been broken by a pair of Supreme Court decisions that suggest the law as it is currently written cannot protect certain kinds of water bodies. The decisions upset the longstanding rule that protected water bodies broadly, including wetlands and other “non-navigable” water bodies that are not connected to other surface waters, as well as a host of small streams (such as ones that do not flow year-round).

That principle was based on basic science -- so basic, in fact, that when I told my then 7- or 8-year-old son what I was working on, he was dumbstruck by the idea that it would be okay to pollute smaller headwaters, given their obvious relationship to the rest of the watershed. Scientists tell us that wetlands, even so-called “isolated” ones, curtail flooding, filter polluted runoff, provide critical habitat for a host of critters, and recharge underground drinking water sources. The smaller streams in the upper reaches of watersheds perform similar functions, and their destruction or pollution has predictable results for downstream waters.

The Supreme Court’s contrary approach was wrong on the law – the decisions overturned previously settled understandings that were faithful to the Act and to how Congress intended it to operate, and that prior interpretation had served the nation well for most of three decades. But the decisions were even worse on the facts; when the Court ignored elementary school science in favor of a legalistic reading, it forced pollution control officials to go through a time- and resource-intensive process to prove that a given water body has a significant enough relationship to a “navigable” one before protecting it. The practical result has been that thousands of water bodies have been cast aside as unprotected, as NRDC and a number of other conservation groups described in a pair of reports, available here and here.

Thankfully, as the Times describes today, there is a ready solution. The Supreme Court said that its decisions were based on the language of the Clean Water Act -- language that Congress can change. A bill called the Clean Water Restoration Act is pending in Congress right now; it would restore protections to the kinds of water bodies that the law previously protected and that today are in limbo. A compromise version of the bill has already passed a key Senate committee thanks to the leadership of Chairman Boxer and Senators Baucus and Klobuchar. The House of Representatives needs to act next, and the Chairman of the relevant House committee, Representative James Oberstar of Minnesota, has vowed to move companion legislation to fix the problem. You can help, by telling Chairman Oberstar that you support moving now to finally fix the law, and by getting in touch with your own representative to urge him or her to support a fix. Please do.

We need to make ourselves heard on this because there are powerful political forces working against it. Several industries that historically have been regulated by the Clean Water Act have lined up to oppose the bill, and have orchestrated a scheme to try to convince Congress to ignore the scientific need to correct the legal problem. As the Times reports:

“The game plan is to emphasize the scary possibilities,” said one member of the Waters Advocacy Coalition, which has fought the legislation and is supported by the American Farm Bureau Federation, the National Association of Home Builders and other groups representing industries affected by the Clean Water Act.

“If you can get Glenn Beck to say that government storm troopers are going to invade your property, farmers in the Midwest will light up their congressmen’s switchboards,” said the coalition member, who asked not to be identified because he thought his descriptions would anger other coalition participants. Mr. Beck, a conservative commentator on Fox News, spoke at length against the Clean Water Restoration Act in December.

Let’s hope that our leaders in Congress can see through the scare tactics to the scary scientific fact that failing to protect our critical water bodies will hurt public health and the environment.

New EPA Report Highlights Threats to America's Lakes

2009-12-18T22:15:42Z

Most summers, my family rents a house near Little Sebago Lake in Maine for a week. It’s a fantastic escape from the daily grind – we kayak, we swim, we go tubing, we fish, and I get out and go birding. (This area is home to lots of cool birds, including the common loon. IMHO, it is absolutely impossible to get bored no matter how long you stare at such a bird, and no matter how little it does during that time.)

But most of all, we decompress. Lakes are good for that – they’re often calm and quiet, and they let you be the same.

Unfortunately, there’s some disquieting news about the nation’s lakes. Today, EPA released its draft National Lakes Assessment, an attempt to document the physical, chemical, and biological state of our lake resources, by conducting in-depth sampling at roughly 900 lakes. While I will try to resist lake-based puns about EPA’s conclusions (“not every pond is golden,” “not every lake is great,” you get the idea), my read of the report leads me to conclude that the mental image I have when someone mentions the word “lake” – a clear, pristine water body – might often be wrong.

The agency and its partners (a host of state and tribal resource agencies) deserve our thanks for completing this survey. After all, knowing what our problems are will help us identify solutions. And the report does this well – a couple of important stressors to lakes emerge from the information presented, and fortunately there are ready solutions to these problems.

Too Much of a Good Thing – Nutrient Pollution

First, the data show a serious problem with nutrient pollution into lakes, with important implications for public health and for wildlife. Across the country, 42 percent of lakes are in “fair” or “poor” condition based on phosphorus concentrations, and 46 percent are “fair” or “poor” for nitrogen. Although it may sound like the diet you wish your kids would follow, too many nutrients are no good for aquatic ecosystems As EPA says, “[l]akes with excess nutrients are two-and-a-half-times more likely to have poor biological health.”

Nutrient pollution causes algal blooms which are ugly, can produce harmful toxins, and can rob the water body of oxygen when they die and decompose. So, it should be a bad sign that nearly half the lakes sampled have less than “good” nutrient conditions, and an even worse sign that certain regions have much more serious problems. For example, in the temperate plains region (including parts of IA, ND, SD, MN, MO, KS, NE, OH, IN, IL, and WI), 62 percent of the lakes were rated “fair” or “poor” for phosphorus, and 73 percent for nitrogen. In the northern plains (including parts of ND, SD, MT, WY, and NE), 78 and 91 percent of lakes were “fair” or “poor” for phosphorus and nitrogen, respectively. Not surprisingly, lakes in these areas also posed higher-than-national exposure risks for cyanobacteria, a particular kind of algae that can produce toxins; in the temperate plains, 52 percent of lakes posed a moderate or high exposure risk, while 59 percent of lakes in the northern plains had such risks.

Controlling nutrient pollution would reduce these risks to lakes and also clean up other aquatic ecosystems that are suffering the ill effects of nutrient-induced algal growth and oxygen depletion, such as the Chesapeake Bay and the Gulf of Mexico. There are lots of technologies in use by responsible wastewater treatment plants, stormwater managers, and farmers across the country that effectively reduce nutrient pollution, but those approaches are not being applied consistently enough to protect our waterways. Examples are biological nutrient removal by wastewater treatment plants, use of native plants and other landscaping that needs less fertilization by municipalities, and use of cover crops and stream buffers by farmers.

Maybe Clear-cutting the Lakefront Lot for that Cottage Isn’t the Best Idea – Shoreline Disturbance

Nutrients are actually only the second-worst problem for lakes, according to the EPA draft report. The thing that adversely affects the greatest percentage of lakes nationwide, it says, is degraded lakeshore habitat. When EPA looked at the amount and type of vegetation on the shoreline of the country’s lakes, it found that 54 percent of lakes had “fair” or “poor” lakeshore habitat condition. Relatedly, the agency reported that 65 percent of lakes were moderately or highly disturbed by human activity.

Disturbing natural vegetation and landscapes has well-known harmful effects. The EPA report, for instance, references a Wisconsin Department of Natural Resources estimate that “unbuffered developed sites contribute five times more runoff, seven times more phosphorus and 18 times more sediment to a lake than the naturally forested sites.”

Again, however, there are solutions at hand. The key strategy to dealing with the harms that development can cause to water resources is green infrastructure – the use of techniques like rain gardens, porous pavement, water reuse, green roofs, and more to mimic the natural hydrology of developed sites. EPA’s report even makes specific mention of this idea, saying that green infrastructure, or low impact development, “will contribute to groundwater recharge, improve water quality, reduce flooding, preserve habitat, and protect lake quality.”

Today’s report shows that the health of our lakes depends on taking smart action when we use the land around them and when we allow pollution to be discharged into them. It also shows that we’re not yet doing a good enough job.

Mountaintop, Flat-top . . . Let's Call the Whole Thing Off

2009-08-11T16:18:10Z

One of the great things about our country is that the government often must give the public the opportunity to comment on something it is planning on doing, and then must actually consider those comments in making its final decision. One of those opportunities is presently available and it pertains to a critically important issue.

Mountaintop removal coal mining, which commonly shears off the tops of mountains and dumps the waste in nearby valley streams, is a horrifying industrial practice (as evidenced by the pictures my colleague Rob Perks has posted online). Coal companies conduct mountaintop removal operations today with the blessing of the Army Corps of Engineers, the federal agency responsible for issuing permits for discharges of "fill material" into the nation's waterways.

Until recently, one mechanism by which the Corps authorized these mines was Nationwide Permit (NWP) 21, a fast-track Clean Water Act permit for "fills" associated with certain coal mining activities. A nationwide permit is one kind of "general" permit, which gives pre-authorization for particular discharges, and which the law says is only supposed to be used when the environmental impacts are minimal. In light of this requirement, using a general permit to authorize mountaintop removal valley fills is simply arbitrary. In March, a federal court said as much, in a case brought by NRDC, Coal River Mountain Watch, and the Ohio Valley Environmental Coalition (thanks to the incredible legal work of Joe Lovett of the Appalachian Center for the Economy and the Environment and Jim Hecker of Public Justice). As a result, the court struck down the permit.

In the wake of that decision, the Corps is asking for public comment on its plan to suspend and then modify NWP 21 to prohibit its use in Appalachia. What that would mean is that the streamlined process for getting Corps' permission to bury headwater streams with coal mine waste would be replaced by an individual, or case-by-case, process. That individual permit process is certainly better - it provides for public input on proposed projects, for instance - but it is nevertheless a mechanism for allowing mountaintop removal to continue.

You can comment on the Corps' proposal by clicking here. Comments must be submitted by Friday, August 14th, so now is the time to weigh in. If you can spare the time to comment and are in the market for suggested points to make to the Corps, here are a couple:

We need to end mountaintop removal. The Corps must stop permitting waste dumps in Appalachian streams and other water bodies. Doing so means reversing the Bush administration's 2002 "fill rule," which classified a host of solid wastes, including mining wastes, as "fill material" that the Corps could allow to be placed in the nation's waters. The Obama administration should begin the process of undoing this terrible rule right away.
In the meantime, the Corps should end the use of NWP 21 altogether. The permit should never have been issued, given the enormity of the impacts and the inability of so-called "mitigation" efforts to reliably ameliorate those harms. It therefore should not be allowed to be used in any fashion; the court ruled that the permit was unlawful, and halting it in Appalachia is only a partial response.

Clean Water Champions Stand Up in the Senate

2009-06-18T20:07:04Z

Today, the Senate Environment and Public Works Committee approved the Clean Water Restoration Act, a landmark bill that will reinstate Clean Water Act protections against umpermitted dumping of pollution, filling, or destruction for a host of water bodies jeopardized by a pair of Supreme Court decisions. It was quite an interesting morning; the meeting at which the Committee debated the bill and proposed amendments can be seen here.

This debate often becomes esoteric, as you'll see from the video. We lawyers tend to talk about the role of the word "navigable" in the statute, the legislative history surrounding the consideration of the law in 1972 and 1977, and the extent to which the Constitution authorizes Congress to enact a strong pollution control program for a wide range of water bodies. But the meeting this morning - called a "mark-up" by Capitol Hill experts - was a great reminder of why we've been working on this so hard for so long. And the person who reminded me was one of the staunchest opponents of the bill there - Senator Barrasso of Wyoming.

Senator Barrasso offered a series of amendments seeking to exclude a variety of water bodies from the bill, including natural lakes, streams, and wetlands. As he offered his amendments, he held up pictures of a number of the features in question, as if to ask whether such a thing ought to be protected by the federal law, and each time, I thought to myself, "heck, yes." Excluding water bodies from the federal law is equivalent to saying that it would be acceptable to destroy those waters or pollute them with untreated sewage or industrial waste. Dropping water bodies from the Clean Water Act does not guarantee they will be polluted, but it is tantamount to saying that they are not important enough to warrant uniform minimum pollution prevention standards to keep them from such a fate.

As I've written before, because of the Supreme Court's decisions, government officials had declared thousands of bodies of waters - including lakes, streams, and wetlands - outside the purview of the Clean Water Act. As a result, the people who rely on those water bodies cannot depend on the Act's safeguards against unregulated industrial pollution and destruction. The Environmental Protection Agency acknowledges that these decisions have undermined the agency's enforcement of the Act. The Obama administration recently told Congress that "[i]t is essential that the Clean Water Act provide broad protection of the Nation's waters, consistent with full Congressional authority under the Constitution."

To address this crisis, Senator Russ Feingold and 24 other Senators sponsored the Clean Water Restoration Act, which the Committee considered today. The Committee ultimately approved a substitute amendment to the bill championed by Senators Baucus, Klobuchar, and Boxer that adds two exemptions from the law sought by farmers and by wastewater treatment plant operators. It also removes provisions that opponents of comprehensive clean water protections had wrongly suggested expanded the scope of the law, and it specifically directs federal agencies to implement the new law consistent with the historic practice prior to the Supreme Court's decisions.

We are very grateful that the Committee has taken this critical step. Congress cannot fix the Clean Water Act soon enough, and today's action reflects the urgency and importance of the problem. While the bill is definitely a compromise, Senators Baucus, Klobuchar, and Boxer deserve great credit for maintaining the core purpose of the legislation: returning protection to imperiled waters and charting a path forward that responds directly to claims made about the legislation. We also owe thanks to the Senators who joined them in moving the bill onward and opposing the radical amendments offered by Senator Barasso -- Senators Carper, Lautenberg, Cardin, Sanders, Whitehouse, Tom Udall, Merkley, Gillibrand, and Specter.

Good News on the Water Front

2009-04-02T22:17:06Z

It's a good day. Today, Senator Russ Feingold and 23 additional Senators joined to introduce the Clean Water Restoration Act of 2009, a bill that would ensure that the Clean Water Act applies to protect a host of water bodies that previously were covered by the law but now may not be. In 2001 and 2006, Supreme Court issued decisions that have been interpreted to mean that the law - and its programs protecting the Nation's water bodies from unregulated industrial pollution, oil spills, and destruction by filling - might not apply to water bodies that are "isolated" from others, that are located far from "navigable" waterways, or that are dry for portions of the year. NRDC's fact sheet about this legal problem can be found here.

Scientists know that these legal distinctions ignore the critical functions that these resources serve. From replenishing drinking water supplies, to mitigating floods, purifying water, and supporting wildlife habitat, the same wetlands and streams that are at risk because of the Supreme Court's decisions also perform vital services for people and the environment.

Moreover, even perennial, but small, streams such as the one pictured below are not necessarily going to be protected going forward. At least one federal appeals court has said - in a case involving a permanently-flowing Alabama stream - that the government needs to show that a water body has a significant link to some downstream "navigable" one in order to enforce the Clean Water Act's pollution control programs for that water body. Doing so is time-consuming and resource-intensive.

Since the first Supreme Court decision in 2001, government agencies deemed an estimated 15,000 water bodies unprotected by the law. More are losing protection regularly, and the government's ability to enforce the law has been hamstrung by questions about what remains protected.

By clearly outlining what water bodies the law protects, Congress can ensure that the Clean Water Act once again will comprehensively guard against polluted rivers, lakes, and wetlands. And there's reason to hope that this year - finally - Congress will not only consider the Restoration Act, but it will become law; President Obama indicated on the campaign trail that he would support and sign legislation fixing this problem.

For the same reason, you can expect to hear all kinds of attacks launched against the bill. Opponents -- for whom complying with the Clean Water Act can require installing pollution control equipment, minimizing their discharge, or avoiding impacts to the water body altogether -- will squawk. They'll call it a "land grab"; they'll say it intrudes on states' rights; they'll claim it "expands" the Clean Water Act. Challenge these arguments:

Ask them: do you support protecting the water bodies that had been protected before the 2001 decision? If they say "yes," then they need not worry - that is the express intent of the sponsors of this bill. Most likely, they will be forced to acknowledge that they want to weaken historic protections.
Ask them: don't a lot of states support this bill? Last Congress, the Restoration Act was endorsed by 10 governors and a number of state agencies and associations of state officials.
Ask them: what water bodies do you think you should get to pollute without Clean Water Act scrutiny?

So begins the vigorous debate on the Clean Water Restoration Act. Like I said, it's a good day.

Safe and Sufficient Water: A Presidential To-Do List

2008-11-25T17:11:13Z

As many of my colleagues are describing today, NRDC and a host of partner groups in the environmental, conservation, and public health community have created a document, called "Transition to Green," which lays out a detailed set of policies that we hope President-Elect Obama will implement. Along with a bunch of other water wonks, I worked on the sections of the document that focus on the Environmental Protection Agency's and Army Corps of Engineers' water portfolios.

Pulling together clean water policy recommendations for a new administration was a daunting experience. Our ideas were too numerous, both because President Bush has presided over the most anti-environmental administration since the adoption of our landmark environmental laws in the 1970s, and because the Nation needs to implement many new initiatives to fulfill the original purpose of the Clean Water Act and to ensure safe and sufficient water for a variety of purposes. There's much to fix, and much to create.

This is no "wish list" -- it is not nearly everything that could be done to repair the damage of the last eight years or everything that should be done to prepare for the years to come. Rather, it represents a determined effort to identify a cohesive set of policies that the new administration should prioritize to demonstrate a real commitment to clean water.

In particular, many of our recommendations reflected a single basic premise: natural aquatic systems should be preserved and enhanced because they are remarkably effective at preventing and mitigating water pollution and flooding, and because they provide important services like wildlife habitat and groundwater recharge. Natural solutions also have an obvious cost advantage - if the ecosystem will clean and store our water for free, we can reduce our need to rely on engineered distribution and treatment systems. So, our document encourages an integrated set of policies:

The administration must first guard against the further loss of headwater streams, wetlands and other waters that comprise and are an integral part of our aquatic systems. It is also necessary to enhance the use of green infrastructure - such as infiltrating stormwater through vegetation and soil to reduce both the pollution carried by runoff and sewer overflows in many urban areas. Additionally, the administration must work to restore natural aquatic ecosystems, like our coastal and other wetland systems, that protect people, wildlife and our economic interests.

In keeping with these principles, we urge both EPA and the Corps to work to restore Clean Water Act protections to a variety of water bodies by pushing for legislation to clarify the law in the wake of a pair of messy Supreme Court decisions and unhelpful Bush administration "guidance," a critical problem I have addressed in prior posts. We also recommend that the agencies undo their destructive 2002 rule change that authorized the disposal of certain kinds of waste - such as the waste generated by the surreal practice of mountaintop removal coal mining - in water bodies. And we identify a number of opportunities that EPA has to integrate green infrastructure into its Clean Water Act programs and plead that the new administration will insist that the Corps makes avoiding - not authorizing -- harm to water bodies its primary clean water mission.

While there are many additional important recommendations, each of which I encourage you to read and hope the President-Elect's transition team will take to heart, we're going to be a lot better off if the new administration recognizes the values Mother Nature provides free of charge, and makes maximizing natural systems the central promise of its clean water policy.

Unless

2007-11-30T16:25:06Z

Recently, I've been thinking a lot about "The Lorax," Dr. Seuss's brilliant and unbelievably forward-thinking book about ecology, pollution, greed, and (ultimately) redemption. You see, my 8-year-old is in his school production of a musical based on the book and, despite my usual distaste for musical theater, I am pleased to report that it is an unqualified triumph. Look for him (as Flippy the Humming-Fish) when the show hits the road following its current run in Arlington, VA.

If you haven't read it, do. I think it's a great gift for any occasion and for anybody. The story is simple: the entrepreneurial Once-ler discovers an unspoiled grove of Truffula trees, a "rippulous pond" full of the aforementioned Humming-Fish, and various other critters cavorting about; the Once-ler chops down the trees to make Thneeds (which, truth be told, sound pretty cool); and the Thneed factory pollutes the air and the pond, driving everything off. In the end, the Once-ler is left in the resulting desolation, and must urge visitors to the place to restore the environment, beginning with one Truffula seed. ("One Little Seed" happens to be the title of the big crescendo number at the end of my kid's play -- it brings down the house. While you're waiting for it to come to your town, you can play an oddly satisfying catch-the-seed game here.)

But the story's a little dated, right? It was written in 1971, before we had most of the landmark environmental laws we have today. The Once-ler couldn't get away with smogging up the air, de-Truffula-ing the landscape, or mucking up the pond today, could it?

As for the last concern, the answer is that the agencies responsible for implementing the Clean Water Act, the Environmental Protection Agency and the Army Corps of Engineers, may well not apply the Act to the pond. This legal limbo arises in large part because of two confused and confusing Supreme Court rulings, but also significantly because the agencies themselves have backed away from protecting aquatic resources in so-called "guidance" documents that they have issued to their field staff. As I discussed in a previous post, countless water bodies around the country -- principally small streams, the wetlands nearby, and geographically "isolated" waters -- are at risk of losing the protection they previously enjoyed under the Clean Water Act.

That means that the Humming-Fishes' pond is almost certainly not protected by the Act, at least as our agencies see it. After all, it's so isolated that Dr. Seuss tells us that the fish will need to "walk on their fins and get woefully weary in search of some water that isn't so smeary." And the fact of the matter is that when projects are proposed today that will discharge into waters that the Corps finds to be "isolated," the local staff are commonly saying that the Clean Water Act doesn't apply. Don't believe (or want to believe) me? Here's a recent decision finding that a 15-acre lake in Colorado, used by residents for waterskiing, is not covered by the Act. A number of other examples are documented in this report.

And even if the fish lived in a small stream rather than a pond, there's no guarantee that the Thneed factory would be subject to the Clean Water Act. A federal appeals court recently reversed criminal convictions under the Act involving pollution of a small, but continuously flowing, creek because it found that the Supreme Court's latest decision requires some showing that a water body has a significant effect on some downstream, "navigable" water in order to protect it under the Act, and that hadn't been done at trial. A picture of the creek is online here.

EPA and the Corps are presently taking comment on their recent "guidance," which -- combined with the Supreme Court's decisions -- is having the effect of denying Clean Water Act protection for many "isolated" waters and even small streams, and which even exacerbates problems caused by the Supreme Court's opinions. You can tell the agencies whether you think it's important to broadly protect waters by submitting a comment here. It's probably too intemperate, or too obscure an allusion for the agencies, but I'm inclined to tell them that anybody who thinks its okay to fail to protect water bodies to the fullest extent the law allows is full of Gluppity-Glupp.

The Little River That Could

2007-10-16T07:15:37Z

When I was a kid, even though I lived only a couple of miles from the ocean, the most important water body I could imagine was The River. Hardly even a stream, The River was located beyond The Pit in The Field behind my house (my friends and I were obviously uncreative with names), and it marked the outer boundary of my freedom to roam alone.

I expect that you can think of a similar spot -- a small pond, a brook, a marsh. A place where you can fish, skip stones, splash around, or plan assaults on enemy encampments. (Mind you, I had a highly decorated pretend military career.)

Even back then, I probably could've told you that The River was part of a larger system of water bodies and that all of them were valuable and worth protecting, even ones that you couldn't float a boat on. Lucky for me, in 1972 -- a few years before I started exploring The River -- Congress passed the Clean Water Act, guaranteeing that all of the Nation's waters would be protected from unregulated pollution discharges.

Incredibly, today -- nearly 35 years since Congress acted, there is significant uncertainty about what water bodies the Clean Water Act can protect. Two recent Supreme Court decisions have placed numerous water bodies in legal limbo, especially waters that are geographically "isolated" from others or ones that lack permanent flow. In large part, these decisions were based on Congress's use of the term "navigable waters" in the law, but ignored Congressional intent to get away from the limits of navigability in 1972 when it defined "navigable waters" broadly to include "the waters of the United States."

A few examples might help illustrate the problems the Court has unleashed.

The first photo below is a pool I saw recently while hiking in an Oregon state park. This spot is uphill and over a ridge from the Columbia River (second photo), an indisputably navigable water body.

Nevertheless, because the pool doesn't have a surface water connection (at least one I could see at that time), it might be considered "isolated" and be at risk of being declared unprotected. That doesn't mean it's unimportant; it could help recharge groundwater, or serve as critical habitat for aquatic organisms. And this is hardly an isolated (ugh, clean water pun) example: based on government estimates, roughly 20 percent of the more than 100 million acres of wetlands in the continental U.S. are considered "isolated."

Similarly, even though federal Clean Water Act rules have long protected wetlands that neighbor all tributaries to protected water bodies, that's no longer a sure bet. Depending on whose interptetation of the latest Supreme Court case you follow, wetlands near non-navigable tributaries could lose protections unless it could be shown -- through a resource- and time-consuming process -- that they have a significant relationship to some downstream actually navigable water. That means that wetlands like the one below may lose Clean Water Act protections the law has historically afforded them.

The area above is less than 100 yards from the West Branch of Perkiomen Creek (pictured below), which flows through a friend's farm in Berks County, Pennsylvania on its way to joining the Schuykill River (an old-fashioned navigable water). He tells me that the creek floods across the pasture to the wetland periodically, and the entire area is rich in wildlife. On our last visit, I saw flycatchers, a Great Blue Heron, a group of Cedar Waxwings, wild turkeys, and an enormous owl I was too slow to identify. The stream, though not fit for boating at this spot, also has substantial fish life and other critters, provides water to my buddy's cattle, and otherwise is a grand spot to splash around.

In other words, this is an important creek, and although wetlands near streams surely provide significant ecological functions for the creeks they neighbor, guaranteeing that the wetland will be protected by the Clean Water Act will likely require an ambiguous evaluation of a number of factors -- water flow, the movement of pollutants to and from the creek, biological connections between the water bodies -- in order to assess whether the wetland and others like it are important enough to some downstream navigable water.

As a final example, the channel pictured below leads directly to Four Mile Run, a tributary to the Potomac River that flows through my neighborhood in Arlington, Virginia. (That's Four Mile Run in the foreground.) Thanks to the Supreme Court's muddy rulings and unhelpful "guidance" from federal agencies, it is far from clear that this feature is protected by the Clean Water Act, even though discharging pollution into such channels or filling them in altogether would have obvious impacts on water quality in the stream.

The current state of affairs is just goofy. Even if you had a Clean Water Act attorney and a professional hydrologist in tow, it's fairly likely that you won't be able to determine whether your local non-navigable water body is covered by the law by visiting it.

Thankfully, there's a bill in Congress -- the Clean Water Restoration Act -- that will get the goofy out of the law. It will simply specify that the various water bodies that had historically been protected by the law will remain so, and get rid of the nettlesome references to navigability. Lots of folks support the effort, including hunters, conservation-minded Republicans , and governors of Western states. I'm also really happy that Congressman Oberstar, who represents a city I once called home -- Duluth, MN -- is the lead sponsor of the bill.

In fact, with the broad support the bill has received, my various hometowns have been well-served; members representing Braintree and Marshfield, MA (Congressmen Lynch and Delahunt), Brunswick, ME (Congressman Allen), Washington, DC (Congresswoman Norton), Atlanta, GA (Congressman Lewis), and Arlington, VA (Congressman Moran) are sponsors of the bill. Only Congressman Walberg (Battle Creek, MI) and Congressman Forbes (Fort Lee, VA) stand between me and a perfect record! I hope they, and other members, stand up for clean water, so that my kids can count on finding a River of their own.

P.S.: If you've read this far and you're still with me, I'd love to hear about the water bodies in your neck of the woods. Do you have a small pond or wetland that is no good for boating, but great for other stuff? Is there a creek that's often dry but flows like nobody's business when it rains? Please tell me, and if you've got pictures up on the web somewhere please include links -- trust me, I'm a nerd, I'll love it.