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Bill to Restore Clean Water Act Introduced
Legislation Would Secure Future Protection
Washington, DC (May 22, 2007) – Legislation designed to return crucial Clean Water Act protections to our nation’s bodies of water was introduced today in the U.S. House of Representatives. The bill, called the Clean Water Restoration Act of 2007, was introduced by Representatives James Oberstar (D-Minn.), John Dingell (D-Mich.), and Vernon Ehlers (R-Mich), along with a bipartisan group of more than 150 co-sponsors.
NRDC Clean Water Project Senior Attorney Jon Devine issued the following statement regarding the legislation:
“We commend the introduction of this important bill and hope Congress will act quickly and decisively in passing it.
“For decades, the Clean Water Act has protected America’s water resources from industrial pollution, oil spills, sewage, and outright destruction. Recent interpretations of the law have placed many of the nation’s important water bodies in legal limbo, allowing polluters to discharge into water resources across the country without complying with the Clean Water Act’s intended safeguards.
“This legislation will end this uncertainty and ensure that all of America’s water resources remain protected for future generations.”
Press Contact: Parag Chokshi 202-513-6254 Restoring America’s Clean Water Legacy The 110th Congress Must Pass Legislation to Restore the Scope of the Clean Water Act From the small stream your kids wade in to the marsh where you set up your duck blind, America’s water resources are an invaluable part of our nation and our economy. The creeks, brooks, and streams that make up over half the river miles in the continental United States contribute to the drinking water of roughly 111 million people. Wetlands purify water, reduce the risk of flooding, and provide important wildlife habitat. But the law that has long protected our lakes, rivers, streams and wetlands from unregulated pollution, filling and destruction—the Clean Water Act—has been under assault in recent years. Congress must act to stop the rollback of protections that keep our water clean. Since the passage of the Clean Water Act (CWA) in 1972, we have made great progress in cleaning up our nation’s waters. While much remains to be done, the law has been the bedrock of our improvements. That’s why it’s so troubling that these protections have been rolled back in recent years, and why it’s crucial that Congress act to stop the attacks. Legislation that restores the scope of the CWA is the best and surest solution for restoring our clean water legacy. A History of Clean Water Act Protections The Act safeguards all of the “waters of the United States,” with several basic protections built into the law – the Act’s prohibition on unpermitted point source discharges, the oil spill prevention program, and the impaired waters cleanup program, to name a few. In expanding the law in 1972 to the “waters of the United States,” Congress made clear that it passed the law with the intent that it “be given the broadest possible constitutional interpretation.” The EPA and Army Corps regulations implementing the law have for decades reflected this intent. They cover, among other things, tributaries of various waters, adjacent wetlands, and intrastate waters with linkages to interstate commerce. Unfortunately, SWANCC gave polluters an opening to pressure the EPA and the Corps to consider changing their rules. In response to this scheme, the agencies were inundated by more than 130,000 commenters, including dozens of states, overwhelmingly demanding that the rules be kept intact. This public outcry succeeded when the agencies cancelled the rulemaking process. However, EPA and the Corps kept in place a policy document directing the agencies’ field staff to stop applying CWA protections to many waters unless they first receive permission from headquarters in Washington, D.C. Thousands of waters have been declared unprotected since the policy took effect, and some 20 million acres of wetlands are at risk nationwide because of the policy. Polluters also seized on SWANCC in the courts, saying that it the law was intended to protect only waters that are actually navigable. Though this claim was largely rejected, those opposed to CWA protections were able to convince the Supreme Court to hear another case—Rapanos v. U.S.—which examined whether the law protects non-navigable tributaries and their adjacent wetlands.
The result was a messy split decision: The Court did not invalidate the existing rules, but the various opinions suggested different tests. Justice Kennedy would require the agencies to show a physical, biological, or chemical linkage—a “significant nexus”—between a water body and an actually navigable one to protect it. Four other justices would require most water bodies to be continuously flowing or standing, and would require wetlands to have a continuous surface connection to such waters. Current Law Is in Disarray
The 2003 policy directive remains in place, despite criticism by the Government Accountability Office and a strong bipartisan May 2006 vote in the House to block the implementation of the directive. Under this policy, waters continue to be declared unprotected, and 20 million acres of wetlands are at risk of pollution or destruction. Polluters are urging the agencies to write off whole categories of water bodies because of the rulings, even though there was no such directive from the Court and even though as a matter of science, tributaries, and wetlands surely have a “significant nexus” to the traditional navigable waters in their watersheds. The agencies are overdue in issuing promised guidance on Rapanos. Even if the guidance comes out soon and rejects the polluters’ push, it will surely depend on the “significant nexus” concept, which will likely be difficult, time consuming, and expensive to implement in practice. Numerous suits have been filed challenging CWA protections over tributaries and wetlands, and the court decisions thus far have dealt with the new decision inconsistently. One court even held that the law didn’t apply to an oil spill into a small tributary. An industry funded legal foundation has filed a legal petition arguing that Rapanos generally requires -the agencies to deny protection to waters unless they are continuously flowing or standing, and only protect those wetlands “indistinguishable” from other waters, based on the opinion of four Supreme Court justices that was rejected by a majority of the Court. Legislation Is the Best and Surest Solution A statutory fix will prevent the political agency heads from using the court decision as an excuse to exclude certain kinds of waters from protection at the urging of polluters. Four Supreme Court Justices support a radical rewriting of the law, one which would exclude approximately 2 million miles of streams from protection, along with countless acres of wetlands. Specifying the waters that Congress means to protect will guard against judicial over-reaching. Not restoring the law risks years of litigation and inconsistent decisions. More importantly, it means that numerous waters will be destroyed or polluted. Designing a Legislative Solution To restore the traditional scope of protection intended by Congress and to achieve the goal of restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters, legislation must: Define protected “waters of the United States” based on the decades-old definition in Corps and EPA regulations; Delete the word “navigable” from the Act to clarify that the Clean Water Act is principally intended to protect the nation’s waters from pollution, and not just maintain navigability; Explain the basis for Congress’s assertion of constitutional authority over the nation’s waters, as defined in the Act, including smaller water bodies and so-called “isolated” waters.
An example of legislation that would achieve these goals was introduced in the 109th Congress—the Clean Water Authority Restoration Act (H.R. 1356/S. 912). When an equivalent bill is introduced in this Congress, please support it.
For more information: Jon Devine: 202-289-2361
What's on Tap? This June 2003 NRDC study of drinking water quality in 19 U.S. cities finds that pollution and deteriorating, out-of-date plumbing are sometimes delivering drinking water that might pose health risks to some residents -- and unless steps are taken now, tap water will get worse. The report issues grades to each municipal water system studied in three problem areas -- water quality and compliance, source water protection, and right-to-know compliance -- and outlines a plan for protecting the nation's drinking water supply. Study Finds Safety of Drinking Water in U.S. Cities at Risk
We often take the purity of our tap water for granted -- and we shouldn't. NRDC's What's on Tap?, a carefully researched, documented and peer-reviewed study of the drinking water systems of 19 U.S. cities, found that pollution and deteriorating, out-of-date plumbing are sometimes delivering drinking water that might pose health risks to some residents. Many cities around the country rely on pre-World War I-era water delivery systems and treatment technology. Aging pipes can break, leach contaminants into the water they carry and breed bacteria -- all potential prescriptions for illness. And old-fashioned water treatment -- built to filter out particles in the water and kill some parasites and bacteria -- generally fails to remove 21st-century contaminants like pesticides, industrial chemicals and arsenic. What's on Tap? found one overarching truth: If steps are not taken now, our drinking water will get worse. Recent actions by the Bush administration are making the problem worse instead of better. Seemingly more concerned about protecting corporate polluters than protecting public health, the administration is campaigning to hobble existing laws, thwart efforts to strengthen current pollution standards and cut funds for programs that protect tap water. Government -- whether city, state or federal -- should be doing all it can to ensure that citizens get clean, safe drinking water every time they turn on a faucet or stop at a public water fountain. And an informed, involved citizenry is the key to the process; it's our hope that What's on Tap? will encourage all Americans to look into the quality of their city's water supply, and to demand that our elected officials do what's necessary to provide safe tap water. What's on Tap? issues grades for each studied city in three areas: water quality, right-to-know reports, and source water protection.
The Bottom Line: Water Quality and Compliance Good drinking water depends on cities getting three things right:
If just one of those three factors goes awry, water quality will suffer. For example, these four cities have fair-to-substandard drinking water:
So what does all this mean in terms of what's actually in your water glass? If your city has a water quality problem, your tap water may at times carry a worrisome collection of contaminants. Tap water can contain a vast array of contaminants, but a handful showed up repeatedly in the water of the cities we studied:
Contaminants like these get into our water from many different sources. A few examples: runoff from sewage systems that overflow after a heavy storm; runoff from contaminant-laden sites like roads, pesticide and fertilizer-rich farms and lawns, and mining sites; wastes from huge animal feedlots; and industrial pollution that leaches into groundwater or is released into surface water. A high level of any of these contaminants in your water represents a failure of your city's "water treatment train" -- a series of steps your water is put through to filter and disinfect it before it is delivered to your tap. By extension, it also represents a failure by your government -- local, state and federal -- to protect your water supply and ensure that pure, safe and good-tasting water is supplied to your home. NRDC's study found that relatively few cities are in outright violation of national standards for contamination of drinking water, but this is more a result of weak standards than it is of low contaminant levels. For example, cancer-causing arsenic is currently present in the drinking water of 22 million Americans at average levels of 5 ppb, well below a new EPA standard for arsenic of 10 ppb that will go into effect in 2006. Yet scientists now know that there is no safe level of arsenic in drinking water. (The EPA found that a standard of 3 ppb would have been feasible, but industry lobbying and concerns over treatment costs prevailed over public safety.) Many cities failed to meet the EPA's "level of concern" for various contaminants that are not yet regulated. Our study yielded another broad truth about the nation's drinking water "treatment trains": many cities show an increase in the frequency of periodic spikes in contaminant levels, indicating that the World War I-era plumbing and water treatment facilities still widely employed may be inadequate to handle contaminant spills or even the basic daily contaminant loads produced by our heavily industrialized, densely populated cities. And spikes above the EPA's standards generally don't trigger a violation; usually only an average level over the standard is considered a violation. The bottom line is this: the tap water in some cities might pose health risks to vulnerable consumers -- people who have serious immune system problems, pregnant women, parents of infants, those with chronic illnesses and the elderly should consult with their health care providers about the safety of tap water. (See this fact sheet from the Campaign for Safe and Affordable Drinking Water for more information on protecting the vulnerable.) And our nation must make a major commitment to upgrading and modernizing water systems and protection of drinking water sources. For more information about our findings regarding drinking water quality, see Chapter 2 of What's On Tap (101k PDF file).
Your Right to Know What's in Your Tap Water The first question that one would logically ask on reading the above is, "How do I find out what's in my water glass?" And according to U.S. law, every citizen is entitled to a straight answer. Every city is required to publish reports about the safety and quality of its drinking water system. The problem, as NRDC found, is that while some cities do a good job with their right-to-know reports, others publish information that is incomplete or misleading:
These right-to-know reports hold enormous promise. In addition to informing citizens about the state of their city's water system, they can also build support for investment and encourage citizens to participate in fixing local problems. They are so important that NRDC decided to grade each city's right-to-know reports as part of this study; we've also included a set of recommendations that cities might adopt in setting goals for their right-to-know publications. For more information about our findings regarding right-to-know reports, see Chapter 3 of What's On Tap (90k PDF file).
Protecting the Source The first line of defense in ensuring the safety and quality of drinking water is to ensure that water sources -- lakes, rivers, streams and aquifers (porous underground formations that hold water) -- are protected from pollution. And as indicated above, there are many ways that contaminants get into source water, among them:
To keep such contaminants out of tap water, a city's first step is identifying where pollution is coming from. Once these sources are known, the water utility, city planners and citizens of a municipality must work together to figure out how to reduce the threat of contamination. Land purchases often prove useful, allowing the water utility to establish a pollution-free zone around source waters. Utilities may also ban boating and other recreational activities on these waters, push for improved pollution controls, or protect wetlands (which replenish and purify source waters). Some cities are doing a fine job of protecting their drinking water supply. Seattle is doing an excellent job of protecting source water; Boston, San Francisco and Denver also get high marks. But many other cities have a long way to go:
An informed, involved public is a water utility's strongest ally in an effort to better protect its water supply. NRDC recommends that citizens urge legislators not to pull the plug on safe water supplies -- the Bush administration's broad assault on Clean Water Act protections should be stopped, and Congress should act to strengthen the laws and contaminant standards we have in place to protect the purity and safety of our drinking water. NRDC Press Releases
Bottled Water
1. Isn't bottled water safer than tap water?
2. Is bottled water actually unsafe?
3. Could the plastic in water bottles pose a health risk?
4. How can I find out where my bottled water comes from?
5. How can I determine if bottled water is really just tap water?
6. What actions can I take to improve bottled water safety?
Members of Congress and governors should also pass legislation providing the resources for the FDA and state regulators to actually enforce the law. To take further action, you can encourage your bottlers and the International Bottled Water Association (a trade organization that includes about 85 percent of water bottlers) to voluntarily make labeling disclosures such as those above. Contact information: FDA
8. If I drink tap water should I use a filter and what types of filters are most effective?
9. How can I obtain test results on my tap water? You also can test your water yourself, though this can be expensive. There are state-certified drinking water laboratories in virtually every state that can test your water. Call your state drinking water program or the EPA Safe Drinking Water Hotline (800 426-4791) for a list of contacts. Standard consumer test packages are available through large commercial labs at a relatively reasonable price. Based on BOTTLED WATER: Pure Drink or Pure Hype? a March 1999 report by the Natural Resources Defense Council. last revised 9.12.07
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