Sunday’s New York Times article about the neglect of our clean water laws included a shocking example of how a regulatory gap in the Clean Water Act can harm public health. For example, the article referred to water supplies in parts of the Farm Belt that are contaminated by dangerous levels of pesticides, which originate with agricultural runoff and cannot be corrected by enforcement of the Clean Water Act. Although the Act provides a comprehensive regulatory program for point source discharges of pollution — discharges from pipes and other discernible conveyances — it does not directly regulate generalized runoff from farms, forestry activities, overflowing septic tanks, parking lots, and mining operations, something that is generally referred to as nonpoint source water pollution. As a result, nonpoint source pollution, especially from agriculture, has become the chief impediment to achieving national water quality objectives. Water pollution from nonpoint sources dwarfs all other sources by volume and often adds dangerous pesticides, other toxics, and fecal contaminants to our waters.
The Clean Water Act today requires that the states identify those rivers and other waters that are unable to meet water quality standards because of nonpoint source pollution. The states are then directed to develop Best Management Plans (BMPs) to address these nonpoint source problems. This program, unfortunately, has not worked well. One major weakness is that many states have adopted non-regulatory approaches, including voluntary BMPs, to deal with the problem. These voluntary programs have not produced significant progress, and the CWA gives EPA only limited power to deal with such ineffective approaches. EPA can only approve or disapprove of an inadequate state plan; it cannot promulgate a federal plan in lieu of an inadequate state plan. Thus, EPA has been placed in an unenviable position. It can disapprove a state plan and thus withhold the funding that a state needs to make at least some progress in the area, or it can approve an inadequate plan. The result has been predictable.
Congress, therefore, needs to revisit the problem of nonpoint source pollution. States need to review their waters on a regular schedule in order to update the list of those which are impaired due to nonpoint source discharges. The Best Management Plans required by the Act must require enforceable conditions and requirements. If a state fails to include such conditions and requirements, EPA must be empowered to promulgate a federal BMP for the state. Only in this way can EPA ensure that effective nonpoint source controls are established. Finally, Congress must stipulate that the states establish credible enforcement programs for their nonpoint sources and give EPA the authority and resources to backstop these enforcement efforts. It is time to complete the work that Congress undertook in 1972 when the original Act was passed. It is time to fill the gap that has stood as one of the primary impediments to achieving the nation’s dream of actually having fishable and swimmable streams.
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William Andreen | September 16, 2009
Sunday’s New York Times article about the neglect of our clean water laws included a shocking example of how a regulatory gap in the Clean Water Act can harm public health. For example, the article referred to water supplies in parts of the Farm Belt that are contaminated by dangerous levels of pesticides, which originate […]
William Andreen | September 15, 2009
Sunday’s New York Times article about the neglect of our clean water laws came as a timely reminder that, no matter how well articulated our environmental laws may be, it takes consistent, vigorous enforcement to ensure compliance with these statutory regimes. Unfortunately, as the article illustrates, state and federal enforcement of the Clean Water Act […]
Matt Shudtz | September 14, 2009
Granite, like most natural stones, contains radioactive material. While this isn’t much of a concern for a person who spends a few hours in a kitchen with granite countertops every day, new research by David Bernhardt, Linda Kincaid, and Al Gerhart suggests that the workers who fabricate those countertops might have reason to worry. When […]
Kirsten Engel | September 11, 2009
Five State Attorneys General sent a letter to the Senate leadership on August 31st urging the Senate to enact strong climate legislation. The AGs letter is unusual in that states directly lobbying Congress on the details of federal legislation is a fairly infrequent phenomenon in and of itself. The AGs from California, Arizona, Connecticut, Delaware, […]
Holly Doremus | September 11, 2009
This item cross-posted by permission from Legal Planet. EPA today announced that it would review 79 pending applications for Clean Water Act section 404 permits for surface coal mining projects in Appalachia (hat tip: Coal Tattoo). This review is good news, and an indication that EPA may be developing a backbone with respect to the […]
Shana Campbell Jones | September 10, 2009
Today at 12:30pm the Federal Leadership Committee released, pursuant to President Obama’s Chesapeake Bay Protection and Restoration Executive Order, seven draft reports to improve Bay restoration. Each report is about 50 pages, so there’s a lot of information to take in – from strengthening water quality to strengthening storm water management to assessing the impacts […]
Yee Huang | September 10, 2009
On Tuesday the Environmental Working Group (EWG) released a report on the status of state and federal agriculture policies for five Chesapeake Bay watershed states: Delaware, Maryland, Pennsylvania, New York, and Virginia. The report focuses on agriculture policies that impact water quality and highlights a gaping hole in the regulation of animal-based operations. Past and […]
Rena Steinzor | September 10, 2009
After weeks of sustained attack from the right-wing on issues that are marginal to the job the President asked him to do, Cass Sunstein has emerged from the nomination process bloody but apparently unbowed (here's this afternoon's roll call). He is now the nation’s “regulatory czar,” Director of the White House OMB Office of Information and […]
Thomas McGarity | September 9, 2009
Yesterday, the Food and Drug Administration implemented a 2007 food safety statute by promulgating a rule requiring food manufacturers to report instances of foodborne diseases to an electronic database that the agency has just established (the Reportable Food Registry). This long-awaited database will help epidemiologists at the Centers for Disease Control, state health agencies and […]