Thousands of the nation’s largest water polluters are outside the Clean Water Act’s reach because the Supreme Court has left uncertain which waterways are protected by that law, according to interviews with regulators.

As a result, some businesses are declaring that the law no longer applies to them. And pollution rates are rising.

Companies that have spilled oil, carcinogens and dangerous bacteria into lakes, rivers and other waters are not being prosecuted, according to Environmental Protection Agency regulators working on those cases, who estimate that more than 1,500 major pollution investigations have been discontinued or shelved in the last four years.

——————

The Clean Water Act was intended to end dangerous water pollution by regulating every major polluter. But today, regulators may be unable to prosecute as many as half of the nation’s largest known polluters because officials lack jurisdiction or because proving jurisdiction would be overwhelmingly difficult or time consuming, according to midlevel officials.

“We are, in essence, shutting down our Clean Water programs in some states,” said Douglas F. Mundrick, an E.P.A. lawyer in Atlanta. “This is a huge step backward. When companies figure out the cops can’t operate, they start remembering how much cheaper it is to just dump stuff in a nearby creek.”

“This is a huge deal,” James M. Tierney, the New York State assistant commissioner for water resources, said of the new constraints. “There are whole watersheds that feed into New York’s drinking water supply that are, as of now, unprotected.”

The court rulings causing these problems focused on language in the Clean Water Act that limited it to “the discharge of pollutants into the navigable waters” of the United States. For decades, “navigable waters” was broadly interpreted by regulators to include many large wetlands and streams that connected to major rivers.

But the two decisions suggested that waterways that are entirely within one state, creeks that sometimes go dry, and lakes unconnected to larger water systems may not be “navigable waters” and are therefore not covered by the act — even though pollution from such waterways can make its way into sources of drinking water.

Some argue that such decisions help limit overreaching regulatory efforts.

“There is no doubt in my mind that when Congress passed the Clean Water Act in 1972 they intended it to have broad regulatory reach, but they did not intend it to be unlimited,” said Don Parrish, the American Farm Bureau Federation’s senior director of regulatory relations, who has lobbied on Clean Water issues.

But for E.P.A. and state regulators, the decisions have created widespread uncertainty. The court did not define which waterways are regulated, and judicial districts have interpreted the court’s decisions differently. As regulators have struggled to guess how various courts will rule, some E.P.A. lawyers have established unwritten internal guidelines to avoid cases in which proving jurisdiction is too difficult, according to interviews with more than two dozen current and former E.P.A. officials.

The decisions “reduce E.P.A.’s ability to do what the law intends — to protect water quality, the environment and public health,” wrote Peter S. Silva, the E.P.A.’s assistant administrator for the Office of Water, in response to questions.

About 117 million Americans get their drinking water from sources fed by waters that are vulnerable to exclusion from the Clean Water Act, according to E.P.A. reports.

The E.P.A. said in a statement that it did not automatically concede that any significant water body was outside the authority of the Clean Water Act. “Jurisdictional determinations must be made on a case-by-case basis,” the agency wrote. Officials added that they believed that even many streams that go dry for long periods were within the act’s jurisdiction.

But midlevel E.P.A. officials said that internal studies indicated that as many as 45 percent of major polluters might be either outside regulatory reach or in areas where proving jurisdiction is overwhelmingly difficult.

And even in situations in which regulators believe they still have jurisdiction, companies have delayed cases for years by arguing that the ambiguity precludes prosecution. In some instances, regulators have simply dropped enforcement actions.

Some fault Lisa P. Jackson, head of the E.P.A., for not issuing new regulations to clarify jurisdiction of the Clean Water Act.

In the last two years, some members of Congress have tried to limit the impact of the court decisions by introducing legislation known as the Clean Water Restoration Act. It has been approved by a Senate committee but not yet introduced this session in the House. The legislation tries to resolve these problems by, in part, removing the word “navigable” from the law and restoring regulators’ authority over all waters that were regulated before the Supreme Court decisions.

But a broad coalition of industries has often successfully lobbied to prevent the full Congress from voting on such proposals by telling farmers and small-business owners that the new legislation would permit the government to regulate rain puddles and small ponds and layer new regulations on how they dispose of waste.

“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.

The American Land Rights Association, another organization opposed to legislation, wrote last June that people should “Deluge your senators with calls, faxes and e-mails.” A news release the same month from the American Farm Bureau Federation warned that “even rainwater would be regulated.”

“If you erase the word ‘navigable’ from the law, it erases any limitation on the federal government’s reach,” said Mr. Parrish of the American Farm Bureau Federation. “It could be a gutter, a roadside ditch or a rain puddle. But under the new law, the government gets control over it.”

Legislators say these statements are misleading and intended to create panic.

“These claims just aren’t true,” said Senator Benjamin L. Cardin, Democrat of Maryland. He helped push the bill through the Senate Environment and Public Works Committee. “This bill,” he said, “is solely aimed at restoring the law to what it covered before the Supreme Court decisions.”

The consequences of the Supreme Court decisions are stark. In drier states, some polluters say the act no longer applies to them and are therefore refusing to renew or apply for permits, making it impossible to monitor what they are dumping, say officials.

Cannon Air Force Base near Clovis, N.M., for instance, recently informed E.P.A. officials that it no longer considered itself subject to the act. It dumps wastewater — containing bacteria and human sewage — into a lake on the base.

More than 200 oil spill cases were delayed as of 2008, according to a memorandum written by an E.P.A. official and collected by Congressional investigators. And even as the number of facilities violating the Clean Water Act has steadily increased each year, E.P.A. judicial actions against major polluters have fallen by almost half since the Supreme Court rulings, according to an analysis of E.P.A. data by The New York Times.

The Clean Water Act does not directly deal with drinking water. Rather, it was meant to regulate the polluters that contaminated the waterways that supplied many towns and cities with tap water.

The two Supreme Court decisions at issue — Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers in 2001 and Rapanos v. United States in 2006 — focused on the federal government’s jurisdiction over various wetlands. In both cases, dissenting justices warned that limiting the power of the federal government would weaken its ability to combat water pollution.

“Cases now are lost because the company is discharging into a stream that flows into a river, rather than the river itself,” said David M. Uhlmann, a law professor at the University of Michigan who led the environmental crimes section of the Justice Department during the last administration.

In 2007, for instance, after a pipe manufacturer in Alabama, a division of McWane Inc., was convicted and fined millions of dollars for dumping oil, lead, zinc and other chemicals into a large creek, an appellate court overturned that conviction and fine, ruling that the Supreme Court precedent exempted the waterway from the Clean Water Act. The company eventually settled by agreeing to pay a smaller amount and submit to probation.

Some E.P.A. officials say solutions beyond the Clean Water Restoration Act are available. They argue that the agency’s chief, Lisa P. Jackson, could issue regulations that seek to clarify jurisdiction of the Clean Water Act.

Mrs. Jackson has urged Congress to resolve these issues. But she has not issued new regulations.

“E.P.A., with our federal partners, emphasized to Congress in a May 2009 letter that legislation is the best way to restore the Clean Water Act’s effectiveness,” wrote Mr. Silva in a statement to The Times. “E.P.A. and the Army Corps of Engineers will continue to implement our water programs to protect the nation’s waters and the environment as effectively as possible, including consideration of administrative actions to restore the scope of waters protected under the Clean Water Act.”

In the meantime, both state and federal regulators say they are prevented from protecting important waterways.

“We need something to fix these gaps,” said Mr. Tierney, the New York official. “The Clean Water Act worked for over 30 years, and we’re at risk of losing that if we can’t get a new law.”

In the past year, Oregon State University received a federal grant to analyze illicit and legal drugs in municipal sewage. This is the first time this analysis had been performed on raw sewage within the United States to the best of our knowledge. The City of Santa Rosa Utilities Department participated in this study in an effort to guarantee the high quality of its recycled water and support research on these particular analytical methods. The drugs included in the analysis were:

The Coast is under attack and this time, if the proposal to require the Coastal Commission to pay for all legal services previously supplied by the Attorney General is approved, it will leave the Commission with very limited ability to defend itself in a lawsuit or enforce the Coastal Act. This is one of the most serious threats to the continued viability of California’s coastal protection program since the attack on the constitutionality of the Commission in the Marine Forest caseThe commission may be unable to initiate lawsuits to protect public access or other coastal resources. This also effectively means that the Commission would be unable to deny any applicant or to impose any conditions on any proposal that the applicant opposes, based on whether the Commission could afford the cost of litigation.  It means that coastal protection as we have known it is over.  Please read the full discussion below and then take action immediately, since this proposal is supported by Jerry Brown’s Office, the Department of Finance, the LAO and the Committee staff.  This proposal is currently being considered in the Budget sub-committee and will be acted on shortly.

Thanks for your help

Sara Wan

PLEASE HELP BY SENDING A FAX OR CALLING ASAP

Please contact Attorney General, Jerry Brown, and Senator Mark DeSaulnier, Chair of Budget Subcommittee 4, and tell them to EXEMPT THE PUBLIC RIGHTS DIVISION OF DOJ, AND SPECIFICALLY THE COASTAL COMMISSION FROM THE PROPOSED INSIDIOUS LEGAL SERVICES FUNDING SHIFT. Tell them that departments, such as the Commission, whose function is to protect the public’s rights, need to be certain they have legal representation to do so.

Senator DeSulnier  : 916-445-2527 (fax); 916-651-4077 (phone)

Attorney General Brown: fax: 916-445-6749;  916-324-5437-phone

SAMPLE LETTER

Senator Mark DeSaulnier
Chair, Senate Budget Subcommittee 4

Re4 DOJ Fund Swap

Dear Senator DeSaulnier:

You have always been one of the Legislature’s strongest champions  of environmental protection and public rights. Today I am writing to express my extreme opposition to the Department of Justice (DOJ) proposal to “bill” departments that protect our coast and environment for litigation that defends our natural resources. The Coastal Commission, State Lands Commission, Water Board and other public agencies that protect the public’s rights to clean beaches, clean water and access to public lands should not have to base their decisions on whether or not these rights deserve to be upheld based on case-by-case budget decisions made by the Department of Finance. Funding these legal costs currently comes from the General Fund and are written into the DOJ budget.  This has worked extremely well for nearly forty years. Why change it now and seriously harm coastal and environmental protection?

The State Lands and the Coastal Commission do not control who initiates legal challenges to its actions, whether oil companies, developers, or environmentalists.  They do have discretion over legal actions the bring to enforce the law, and penalties and fines it pursues to deter law breakers and seek compensation for lost public resources.  Under threat of possible legal action, the Commission may have to choose whether or not to deny a project or to impose conditions to bring the project into compliance with the Coastal Act.  By shifting legal costs directly to these Commissions, protection of coastal resources will inevitably be sacrificed.  This funding shift will abandon coastal protection to well-healed anti-protection ideologues and deep-pocket developers who would be encouraged to sue more often knowing the Commission will run out of money and consequently elect to save its operations rather than protection of public rights and resources.

The State will be setting aside 48 million dollars to cover attorney’s fees for all agencies currently being served by the AG’s office.  This is about 60% of what has been needed in the past.  To obtain funds the Commission will have to petition for funds and compete with every other agency, including the Department of Corrections, etc.  The Department of Finance (i.e. the Governor) will decide who gets the money while there are still funds left.  This shift, if approved, will also give unprecedented control over the Commission’s enforcement of coastal protection policies and pursuit of Coastal Act violators to the Governor.  Consider the devastating consequences of an anti-coastal protection Governor having such control.

Please reject this proposal and confine any DOJ billing reform to the Department of Corrections, where the real problem exists.

Thank you for your continued efforts to protect our natural heritage.

YOUR NAME HERE

Group (If you speak for a Group)

The Salmonid Restoration Federation is excited to announce the upcoming 28th Annual Salmonid Restoration Conference. Please share the following information with your constituents. If you are unable to include all of the following information please review Public Service Announcement attached.

28^th Annual Salmonid Restoration Conference March 10-13, 2010 in Redding, CA

In 2010 the Salmonid Restoration Federation and the California-Nevada American Fisheries Society chapter will co-host the 28th Annual Salmonid Restoration Conference and the 44th Annual Cal-Neva AFS Conference in Redding, California. We are truly excited about this new collaborative effort. The theme of the conference is Fisheries Restoration and Science in a Changing Climate. The first two days of the conference will be filled with symposia, full-day workshops continuing education classes, and field tours. A half-day plenary session will be followed by 1.5 days of technical, biological, and policy-related concurrent sessions. This conference will focus on a broad range of salmonid, fisheries, and watershed restoration topics of concern to restoration practitioners, and the scientific fisheries community.

This year the conference will feature workshops on topics including Water Quality and TMDLs, Floodplain Restoration, a Fisheries Engineering and Stream Restoration Symposium and continuing education classes on presentation skills, acoustic tag training, and River 2 D technology. Concurrent sessions include: the State of California Salmonids, Anadromous Salmonid Monitoring, Stream Channel Restoration, Central Valley Salmonid Recovery Planning, Marine and Estuarine Fisheries Research: Conservation and Management, Status, Ecology and Management of Inland Fishes and Anadromous/Migratory Fishes, Water Diversions and Fish Impediments, FERC Relicensing and Restoration Opportunities, Planning, Documenting, and Evaluating Fish Restoration Activities, Instream Flow for Salmonids, and a contributed papers session.

Field Tours will visit restoration projects in Clear Creek, Battle Creek, the Upper Trinity River, the Shasta River, the Upper Sacramento River, and a Redding urban streams tour including Sulphur Creek, Salt Creek, and gravel augmentation projects.

The Plenary session will feature David Montgomery author of King of Fish: the Thousand Year Run of Salmon and Dirt: the Erosion of Civilization, Larry Brown from the US Geological Survey who will discuss climate change and native fishes in the San Francisco Estuary and watershed, and Dan Bottom from the National Marine Fisheries Service will discuss “Pacific Salmon at the Crossroads and how Resilient are Salmon Ecosystems.” Maria Rea from NOAA will discuss salmonid recovery planning efforts for salmon in California.

SRF and AFS are collaborating to create a dynamic conference agenda that addresses pressing issues that affect salmonid recovery and fisheries throughout the Pacific Northwest. We are also combining some of the unique features of each of our conferences. AFS will host a social at Turtle Bay, a job fair as part of the joint poster session, and a Saturday morning 5K Spawning Run. SRF will feature our annual meeting followed by the Redding premiere of Rivers of Renewal, a poster session and reception, and out annual banquet, awards ceremony, and cabaret and Latin dance band Sambada. For more information about the conference or to see the exciting agenda, please visit www. calsalmon.org.

Best,

Melissa Scott

I have ordered it, but not yet had it in hand…
Brock

Completion and publication of a layperson’s guide to watershed
hydrology and groundwater hydrology.

The book, entitled “Watersheds, Groundwater, and Drinking Water: A Practical
Guide” is geared towards a relatively broad audience with a varied interest
in water and groundwater.

The book will be useful for folks participating in watershed and groundwater
interest groups; for stakeholder groups in industry, agriculture,
environmental organizations, and NGOs; and for water district, irrigation
district, and water utilities personnel without formal college-level
background in hydrology.

It is also useful as a reference in an introductory undergraduate class.

The full-color book is available through UC ANR Communications at
http://anrcatalog.ucdavis.edu/Items/3497.aspx

The book can previewed through Google Books at
http://books.google.com/books/p/anr_publications?id=qfvlzm1A1vMC

The Endowment supported the production of the book with a
contribution of $10,000, which enabled us to print the softcover book
in full color, while keeping the sales prices extremely affordable
($40).

Katy Mamen
Ag Innovations Network
101 Morris St., Suite 212
Sebastopol, CA 95473
Tel: 707.823.6111
Fax: 707.823.6113
katy@aginnovations.org
www.aginnovations.org

The ability of citizens to challenge EIRs is threatened by new
initiatives drive.  I’m not sure if you’ve heard about this, but it should be on your radar.

Four anti-CEQA initiatives have been submitted to the
Attorney General’s office and one or more of them will soon be
circulating for signatures.

The proponent is an Orange County developer and he appears to be trying to keep his options open by submitting four separate measures for a ballot title and summary.
DANGER: All the measures would prohibit anyone but the Attorney General from challenging an EIR. Some go further and prohibit even the AG from challenging the adequacy of climate change analysis in EIRs. And two of the versions purport to apply retroactively. We’ve attached copies.

They are titled: “California Jobs and Housing Act (Version 1, 2, 3, 4)” Submitted for Title and Summary on February 03, 2010.

In part the initiatives read:…”Giving the Attorney General of California the exclusive right to challenge certified EIRs will put an end to hundreds of frivolous lawsuits, which stall job creation and drive up housing prices for California families.” …”Notwithstanding any provision of this division to the contrary, no individual or entity, including without limitation any person as that tenn is defined in Section 21066, other than the Attorney General may commence and maintain any such action or proceeding authorized by this subdivision (c).”

We are hearing that it is important for environmental groups to get involved immediately. Groups can get involved in at least two ways:You can request a meeting with the Legislative Analyst’s Office, which will review the initiatives for potential fiscal impact. You can also contact the Government Section of the AG’s office, which prepares the initiative’s title & summary. We are told these agencies do want public input.

–California Legislative Analyist
(916) 445-4656
925 L Street, Suite 1000
Sacramento, CA 95814
http://www.lao.ca.gov/laoapp/LAOMenus/lao_menu_contact.aspx
<http://www.lao.ca.gov/laoapp/LAOMenus/lao_menu_contact.aspx>
– Initiative Coordinator, California Office of the Attorney
General
P.O. Box 944255 Sacramento, CA 94244-2550 (916) 445-4752
http://ag.ca.gov/initiatives/contact.php
<http://ag.ca.gov/initiatives/contact.php>
– Attorney General’s Office California Department of Justice
Attn: Public Inquiry Unit P.O. Box 944255 Sacramento, CA
94244-2550

In the meantime, we will be reviewing the measures to assess
possible legal vulnerabilities. Stay tuned.

—- from Friends of the Eel River.

LID (low impact development) is an alternative method of land development that seeks to maintain the natural hydrologic character of the site or region. The natural hydrology, or movement of water through a watershed, is shaped over centuries under location-specific conditions to form a balanced and efficient system. When hardened surfaces such as roads, parking lots and rooftops are constructed, the movement of water is altered; in particular, the amount of runoff increases and infiltration decreases. This results in increased peak flow rate and volume, and pollution levels in stormwater runoff. LID designs with nature in mind: working with the natural landscape and hydrology to minimize these changes. LID accomplishes this through source control, retaining more water on the site where it falls, rather than using traditional methods of funneling water via pipes into local waterways. Both improved site design and specific management measures are used in LID designs. LID has been applied to government, residential and commercial development and redevelopment, and has proven to be a cost-efficient and effective method for managing runoff and protecting the environment.

ScienceDaily (Jan. 23, 2010) – Researchers have discovered that some of the most fundamental assumptions about how water moves through soil in a seasonally dry climate such as the Pacific Northwest are incorrect — and that a century of research based on those assumptions will have to be reconsidered.

A new study by scientists from Oregon State University and the Environmental Protection Agency showed — much to the surprise of the researchers — that soil clings tenaciously to the first precipitation after a dry summer, and holds it so tightly that it almost never mixes with other water.

The finding is so significant, researchers said, that they aren’t even sure yet what it may mean. But it could affect our understanding of how pollutants move through soils, how nutrients get transported from soils to streams, how streams function and even how vegetation might respond to climate change.

The research was just published online in Nature Geoscience, a professional journal.

“Water in mountains such as the Cascade Range of Oregon and Washington basically exists in two separate worlds,” said Jeff McDonnell, an OSU distinguished professor and holder of the Richardson Chair in Watershed Science in the OSU College of Forestry. “We used to believe that when new precipitation entered the soil, it mixed well with other water and eventually moved to streams. We just found out that isn’t true.”

“This could have enormous implications for our understanding of watershed function,” he said. “It challenges about 100 years of conventional thinking.”

What actually happens, the study showed, is that the small pores around plant roots fill with water that gets held there until it’s eventually used up in plant transpiration back to the atmosphere. Then new water becomes available with the return of fall rains, replenishes these small localized reservoirs near the plants and repeats the process. But all the other water moving through larger pores is essentially separate and almost never intermingles with that used by plants during the dry summer.

The study found in one test, for instance, that after the first large rainstorm in October, only 4 percent of the precipitation entering the soil ended up in the stream — 96 percent was taken up and held tightly by soil around plants to recharge soil moisture. A month later when soil moisture was fully recharged, 55 percent of precipitation went directly into streams. And as winter rains continue to pour moisture into the ground, almost all of the water that originally recharged the soil around plants remains held tightly in the soil — it never moves or mixes.

“This tells us that we have a less complete understanding of how water moves through soils, and is affected by them, than we thought we did,” said Renee Brooks, a research plant physiologist with the EPA and courtesy faculty in the OSU Department of Forest Ecosystems and Society.

“Our mathematical models of ecosystem function are based on certain assumptions about biological processes,” Brooks said. “This changes some of those assumptions. Among the implications is that we may have to reconsider how other things move through soils that we are interested in, such as nutrients or pollutants.”

The new findings were made possible by advances in the speed and efficiency of stable isotope analyses of water, which allowed scientists to essentially “fingerprint” water and tell where it came from and where it moved to. Never before was it possible to make so many isotopic measurements and get a better view of water origin and movement, the researchers said.

The study also points out the incredible ability of plants to take up water that is so tightly bound to the soil, with forces nothing else in nature can match.

The research was conducted in the H.J. Andrews Experimental Forest near Blue River, Ore., a part of the nation’s Long Term Ecological Research, or LTER Program. It was supported by the EPA.

–California Legislative Analyist

(916) 445-4656
925 L Street, Suite 1000
Sacramento, CA 95814
http://www.lao.ca.gov/laoapp/LAOMenus/lao_menu_contact.aspx
<http://www.lao.ca.gov/laoapp/LAOMenus/lao_menu_contact.aspx>
– Initiative Coordinator, California Office of the Attorney
General
P.O. Box 944255 Sacramento, CA 94244-2550 (916) 445-4752
http://ag.ca.gov/initiatives/contact.php
<http://ag.ca.gov/initiatives/contact.php>
– Attorney General’s Office California Department of Justice
Attn: Public Inquiry Unit P.O. Box 944255 Sacramento, CA
94244-2550

In the meantime, we will be reviewing the measures to assess
possible
legal vulnerabilities. Stay tuned.

—- from Friends of the Eel River.