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Obama Likely to Boost Water Quality Rules After Years of Lax Regulation

By Kent Garber

The Obama administration and the next Congress are being urged, by a growing number of academics, environmentalists, and lawmakers, to address the country's water problems, including its dwindling supplies, inadequate environmental protections, and stalled cleanup efforts.

the past decade, a potent combination of Supreme Court decisions, Bush administration regulatory actions, and congressional inaction—coupled with recent droughts and the specter of more pronounced problems from climate change—has helped breed crises of both water quality and water availability, they say.

At the top of their priority list: reviving federal laws—particularly the Clean Water Act—that have been weakened or narrowly interpreted in recent years; boosting funding for the nation's faltering and aging water infrastructure; and strengthening the Environmental Protection Agency's regulation of water pollution from industry and power plants.

Many of these priorities appear to align with those of Barack Obama. In his remarks about a stimulus package last week, Obama stressed the need for infrastructure improvement. During the campaign, he touted his support for water protection in battleground states like Florida, pledging to help protect and restore the Florida Everglades. His campaign advisers, meantime, say he will support legislation to restore the full scope of environmental laws that were weakened under the current administration.

Environmentalists want him to start by rejuvenating the Clean Water Act—the main water-pollution control act in the United States. Passed in 1972, the law was interpreted by both Congress and the courts for nearly 30 years as protecting virtually all federal waters. But in 2001, and again in 2006, the Supreme Court handed down rulings that served, in effect, to limit the law's reach.

Now, more than 20 million acres of wetlands, along with more than half of the country's steams and rivers, are more vulnerable to pollution as a result of the court's decisions and EPA rules that have followed. "Clean water enforcement is essentially broken at this point," says Joan Mulhern, senior legislative counsel at Earthjustice, a nonprofit law firm that has prosecuted many of the most high-profile environmental cases of the past decade. Moreover, because of uncertainty resulting from the court's 2006 decision, the EPA has delayed processing hundreds of environmental violations.

To return the Clean Water Act to its original standing, environmentalists are asking Congress to pass legislation clarifying that the law applies not just to main waterways or waterways closely linked to main waterways, as some justices on the Supreme Court have argued, but to all types of federal waters. Such a bill already has been proposed by Senate Environment and Public Works Committee Chair Barbara Boxer and has been endorsed in principle by Obama. "I would not be surprised if that actually got passed within the first few years of the Obama administration," says Florida State law Prof. Robin Craig, one of the nation's top experts on water law.

Another concern is the condition of the nation's sewage systems and water treatment facilities. There is bipartisan consensus that the nation's water infrastructure is in urgent need of repair. "The nation's sewage infrastructure for the 21st century is in abominable shape," says Mulhern.

In June, presaging an argument he made last week supporting a second stimulus package, Obama told a crowd in Flint, Mich., "If we want to keep up with China or Europe, we can't settle for crumbling roads and bridges, aging water and sewer pipes. It's gotten so bad that the American Society of Civil Engineers gave our national infrastructure a D. " Environmentalists are hopeful that any stimulus package Obama assembles will include at least $10 billion for water treatment systems and water-related projects. They note that the Clean Water Act at one point provided $1.35 billion a year for infrastructure improvements. Because of recent budget strains, that amount has been cut by more than half.

And as Craig and others point out, water quality is only half the battle. Water supply is the other half. "We are running out of water, and I do not say that facetiously," she says. Large parts of the United States depend on aquifers—such as the Ogallala aquifer under Texas and Oklahoma—that contain what Craig calls "fossil water" and are unlikely to refill.

Climate change is exacerbating water problems in many regions and water shortages are, in turn, making water quality issues more extreme. "These are not unrelated issues," says Craig. "If you don't have enough water in a river, you make whatever pollutants are there worse because they're more concentrated."
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