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USA's Open Season on Chemical Dumping

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The green promises from last
January
along with renewed faith in science and the government are rotting on the vine.

I woke to this morning's lead story in the New York Times about the Environmental Protection Agency's inability to stop the dumping of toxic chemicals into our nation's waters.

I immediately thought of Richard Russo's 2007 novel Bridge of Sighs, about a character named Louis Charles (aka "Lucy") Lynch from the sleepy hamlet of Thomaston, New York. A sidelight of the story is the life of Thomaston's river, which in Lucy's early years ran a different color each day, depending on the chemical du jour dumped by an upstream tannery. When studies suggest links between the pollution and "alarming cancer statistics," the local rag decries the research as a "Communist plot."

Welcome to Real World Dumping... Not That Different

How quaint. But that's fiction. In real life, we've come a long way since the era of Lynch's fictional boyhood, right?

The 1972 Clean Water Act outlawed unregulated chemical dumping and gave EPA the authority to enforce the restrictions. As a result, U.S. water quality, otherwise weakened or threatened by industry and municipalities, improved. (Wetlands destruction also slowed.)

But lest you think we are still on the right track, read on. You see, the Clean Water Act allows federal protection of "navigable" waters. But in a couple of recent Supreme Court decisions (Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers in 2001, Rapanos v. United States in 2006), the term navigable was interpreted to exclude isolated waters and certain kinds of small streams and wetlands, even those that feed into larger watersheds, including, in many cases, fisheries and drinking water sources.

These rulings do not exempt just a few waterways. Take the examples of just two states.

  • Colorado - More than 70 percent of its stream miles flow intermittently, placing them outside the high court's narrow interpretation of "navigable" waters.
  • Tennessee - Protections are uncertain for more than half of the state's wetlands and 60 percent of its stream miles.

(To learn about drinking water and streams in your state, check out this EPA map.)

As a result of the high court's rulings, there is now, according to the Times, a growing and disturbing trend. More and more companies and industries have begun dumping chemical waste into small creeks and streams with impunity. Some 1,500 cases of chemical dumping have reportedly been dropped or set aside by EPA in the wake of the Supreme Court decisions. The Times quotes Douglass F. Murdock, an EPA attorney, as saying, "We are, in essence, shutting down our clean water programs in some states."

A Congressional Fix Could Protect More Important Drinking Water Sources, but...

It's a classic unintentional loophole. I highly doubt Congress set out to forbid pollution in large waterways but permit it in the smaller waters that feed them.

Fortunately, in our congressional system fixing the problem should be easy. Congress can close the loophole with a straightforward law that more precisely defines what "navigable" covers or that eliminates the word entirely in order to prevent pollution in all waterways, big or small.

In this Congress, such a prospect is easier said than done.

The Clean Water Restoration Act, a bill first introduced in the 110th Congress to, in part, remove the word navigable from the Clean Water Act, is currently stalled. Though it passed out of a Senate committee, it has yet to reach the floor never mind be introduced in the House.

What gives? According to the Times, "a broad coalition of industries has often successfully lobbied... Congress from voting." And it's not just companies. Glenn Beck has taken to the air characterizing the bill as "radical." The Heritage Foundation claims the proposed law is an "invitation for federal regulators (or environmental organizations filing lawsuits) to shut down any use of land that they don't like." And, reminiscent of the "Communist" label applied by the fictional Thomaston newspaper, some in the blogosophere have slapped the "Communist" tag on the proposed U.S. law, while others make outrageous claims that such efforts illustrate how the federal government is out to control "every facet" of "our lives," including our puddles.

EPA estimates that about 117 million Americans (that's one in three!) get their drinking water from sources that fall through the "navigable" loophole. But apparently for many 21st century Americans, protecting our drinking water from toxic pollution is an unconscionable government power grab that must be stopped. And it looks like stop it they will.

With so much progress over the last 50 years, who'd have thunk we may soon be reliving the fictional life of young Lucy Lynch in mid-20th century Thomaston. I am filled with nostalgia at the thought. Too bad we won't be able to fish in the streams -- and, oh yeah, don't drink the water.

Crossposted with www.thegreengrok.com.

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