Bush Regulatory Record: Transferring Polluted Water

by Holly Doremus

January 20, 2009

Editor's Note: With the Bush Administration's remaining time in office now measured in hours, we asked CPR Member Scholars to remind us of some of the less publicized moments of the Administration's record on environmental issues. Following is the fourth of several entries published before President Bush returns to Texas. In this one, Holly Doremus takes up the issue of exempting water transfers between water bodies from Clean Water Act protections.

 

In its eight years in power, the administration of George W. Bush delivered numerous blows to the environment. One that has not gotten attention in proportion to its environmental importance is a rule issued in June 2008 exempting water transfers from the permitting requirements of the Clean Water Act.

 

Clean Water Act permits, which are required for discharges of pollutants from point sources to the waters of the United States, are supposed to minimize, and if possible over time completely eliminate, water pollution. The water transfer rule declares that canals, pumps, and pipes that carry water from one watershed to another do not require permits, no matter how much pollution they introduce to the receiving waterway. The conflict over Florida pumps illustrates the importance of this issue. A series of massive pumps takes water away from the cities and farm fields of south Florida and to the Everglades. Moving clean water would be a good thing for everyone, reducing the danger of flooding on urban and agricultural lands and supporting the wetlands ecosystems of the Everglades. But moving polluted water creates serious problems. The water that comes out of the pumps is laden with phosphorous from the area’s sugar fields; in the Everglades, that phosphorous promotes the growth of invasive non-native plants. If the Clean Water Act applies, the operators of the pumps will have to meet water quality standards established by the state to protect the Everglades system. If it does not, the water supply for the Everglades can be poisoned without any legal oversight.

 

The water transfer rule is typical of the Bush administration’s approach to environmental law. It ignores the text of the Clean Water Act, which certainly appears to apply to pipes that deliver polluted water to a cleaner water body. It ignores the purpose of the Act, which is to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” It ignores the courts, which had uniformly rejected the “unitary waters” approach (treating all of the nation’s waters as equivalent, so that transfers between water bodies is of no concern) before the rule was adopted. And it ignores the importance of tackling tough problems.

 

Environmental law is most important when it is most difficult to implement. It would require some administrative creativity to make the Clean Water Act’s permit provision, which was designed with factory outfalls in mind, work for pumps and canals. It would require some additional creativity on the parts of the operators of pumps, reservoirs, and the like, to figure out how to reduce pollution in their systems, since they typically are not directly responsible for that pollution. But that’s exactly the kind of creative pressure that’s needed to actually solve environmental problems. Pretending that pumps don’t spread pollution doesn’t make it true. Let’s hope the next administration is much more willing to face up to the challenges of actually addressing environmental problems, instead of sweeping them under the rug.

 

(Other entries in this series include Dan Tarlock and Dale Goble on biodiversity and endangered species issues, and Joe Feller on cattle grazing on public lands.)


 

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Holly Doremus is James H. House and Hiram H. Hurd Professor of Environmental Regulation; Faculty Co-Director, Center for Law, Energy & the Environment; and Director, Environmental Law Program at the University of California, Berkeley.

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