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EPA polluter enforcements limited by uncertainties in Clean Water Act


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As a result of U.S. Supreme Court decisions since 2001, the U.S. Environmental Protection Agency (EPA) has been limited in its ability to pursue prosecution of polluters of some U.S. waterways, according to a report from the New York Times issued today.

The Clean Water Act of 1972 was intended to stop major polluters from dumping into waterways. Such dumping could impact drinking water and wildlife. The Clean Water Act states that enforcement is limited to the "discharge of pollutants into the navigable waters of the U.S." The key to the uncertainty is what defines "navigable waters."

In their informative article, Charles Duhigg and Janet Roberts reported an analysis of the ongoing impact of these uncertainties in the Clean Water Act.

For decades, the term was broadly interpreted to include many large wetlands and streams, and bodies of water that were fully located in a single state.

But two U.S. Supreme Court decisions limited the interpretation of navigable waters. One case pertained to water in the Chicago region. In the case of Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers in 2001, the court ruled that intrastate waters (bodies of water that are entirely within one state) did not fall under the definition of "navigable waters" and therefore was out of the jurisdiction of the U.S. EPA. Another Supreme Court case in 2006 also limited the power of the federal government to pursue prosecution of polluters because of the uncertainy about "navigable waters."

What does this mean in real life? Pollutants released into the environment and into water ways can impact wildlife and drinking water resources. According to New York Times report, more than 200 oil spill cases have been delayed since 2008, and more than 1,500 major pollution investigations have been discontinued in the last four years. One example is a case in Alabama, where a court decision convicting and fining a pipe manufacturer for dumping oil, lead, zinc, and other chemicals into a large creek was overturned, citing the Supreme Court decisions. That case eventually settled, and the company paid a lesser fine and was placed on probation.

What can be done to change it? Some EPA officials argue that the U.S. EPA chief Lisa P. Jackson could issue regulations that would clarify jursidiction of the Clean Water Act, according to the New York Times article. Some legislators are helping bring a bill through Congress that would limit the impact of the Court decisions. The bill was approved by a Senate committee but has not yet been introduced in the House.

Who is fighting such changes and clarification? A broad coalition of groups including the American Farm Bureau Federation, the National Association of Home Builders, and other industry groups are fighting the legislation. The Times article quoted one member of the Waters Advocacy Coalition as saying, "The game plan is to emphasize the scary possiblities." The group alerts farmers and small business owners that every puddle and creek would be regulated under the new legislation.

Definitely read the article. There are more details and insights on this issue, including more examples of specific cases that have been affected by these uncertainties in the Clean Water Act. The opposing viewpoint is articulated by several different representative of coalition groups. There is also additional information and graphics on trends in  water pollution over time. This New York Times article is part of a series of articles called "Toxic Waters: A series about the worsening pollution in America's water and regulators' responses."

For more info: More data on numbers of U.S. EPA violations by major permit holders as compared to EPA enforcement actions; Clean Water Act; Clean Water Restoration Act; U.S. EPA Office of Water; Waters Advocacy Coalition.

Suggestions, comments, questions? Anything about environmental health that you would like to know about? Email your Chicago Environmental Health Examiner at MarisaNaujokas@gmail.com. Follow me on Twitter @chicagoenviron.

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