EPA Says Water Is A Pollutant?
    By Hank Campbell | August 20th 2012 03:36 PM | 16 comments | Print | E-mail | Track Comments
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    The EPA has declared water, the substance the Clean Water Act was created to protect, a pollutant - and it is getting the federal government dragged into court.

    How so?  They are requiring Fairfax County, Virginia, to artificially control the flow of water in Accotink Creek watershed because that is their solution to managing sediment; too much water is a pollution problem, they claim, and it needs to be fixed.   But the EPA has far overreached itself, local officials claim, and that has created strange bedfellows.  The Democrats on the Board of Supervisors have joined with Republican state Attorney General Ken Cuccinelli, even though they acknowledge that in an election year that is bad form, especially when the EPA is a frequent hot spot in the culture war between science and environmental activism.

    What?  Politicians broke ranks with their party to protect their constituents against intrusive EPA mandates that will improve nothing?  That whooshing sound you hear is half of America moving to Fairfax County, Virginia.

    “When people talk about federal agencies running amok, this is exactly what this looks like,” Supervisor John C. Cook told Fredrick Kunkle at the Washington Post. “The EPA’s overreach is so extreme that the Democrats on the board realized that, even in an election year, they had to do this for the county.”

    The EPA says sediment is the issue and are mandating that Virginia fix it - at a cost of up to $500 million(!). They basically want to stop water from flowing but most worrisome is that the EPA can just hand down a regulation and force the state to buy up private property for new water facilities and it might not even work, meaning more costs in the future

    Wait, doesn't the EPA instead make demands when pollutants go into water?  They control how much water nature produces now too?  This is where it gets a little weird.  It wasn't determined by science, it was determined by another lawsuit.

    In the 1990s, the American Canoe Association sued the EPA because they did not like the Virgina plan for cleaning up 'pollution' in Accotink Creek. The EPA strangely settled and entered into a consent decree which they never showed anyone in Virginia - it simply established a timeline that the state and Fairfax County had to follow. 

    The EPA's environmental rationale was that the creek had "benthic impairment”, a decline in the benthic macroinvertebrate population - not enough worms, crayfish and other critters - due to sediment, which is a pollutant under the Clean Water Act.  How is 'impairment' determined and what does that have to do with canoes?  Virginia's water quality standards specify that surface waters are for "recreational use" (like canoeing) and "aquatic life use" (critters).  All canoe people had to claim was that their canoeing was impaired and they can sue - and get a settlement that is handed down from the EPA. Who determined the benthic impairment baseline level?  The EPA.

    The EPA is not directly saying they want better canoeing, that is not their jurisdiction, they claim this is about pollution - what you and I call water. They claim water is what they discovered when searching "stressor identification" (the pollutant), what causes the creek to exceed the benthic impairment Total Maximum Daily Load (TMDL) allowable. Less water will equal more worms, they believe. And up to $500 million of hassle and cost for local taxpayers.  The problem is that the EPA has no evidence at all that spending the $500 million will actually fix the worm problem, biology does not work that way.

    Not all the politicians in Fairfax County agree with the lawsuit decision. Fairfax County Supervisor John W. Foust (D) doesn't like Cuccinelli, so he put his feelings ahead of his voters and their hundreds of millions of dollars in potential costs so he could stick it to a Republican.  That's more like what we have come to expect from politicians.

    Read a comprehensive overview by Dave Webster: "EPA’s 'Save the Worms' Campaign to Cost Fairfax County Taxpayers Approximately $200M" at Kingstowne-RoseHill Patch

    H/T to John Ewing, whose email made storm water in Virginia sound pretty interesting.


    Fred Phillips
    So we've made no progress since 1981, when Ronald Reagan said trees cause pollution.
    "Trees cause more pollution than automobiles do."
    Well, he was wrong in severity but right in concept. We have the Great Smoky Mountains because terpenes and isoprenes are released more in hot weather - and in 1981 ozone was the big fear, not carbon dioxide. Isoprene is a big catalyst.
    Ronald Reagan was correct. Diseased and stressed trees produce methane a far worse pollutant that CO2 will ever be

    Fred Phillips
    This from AAAS fellow Wallace S. Broecker, who was the first to warn about anthropogenic global warming in a scientific paper:
    AAASIn your paper, you say that only carbon dioxide of atmospheric gasses can be demonstrated to be significant for climate change.  Is this still true?  How about methane, for example?
    Broecker:  Well, methane, sure.  But methane and most other things that we put out into the atmosphere don’t last for very long.  The CO2 that we put out today will last for centuries.  The ocean will eventually take it out, but that will take a thousand years.  So the effects will be with us for a very long time.
    Right. A politician can be rationalized for not understanding that just because methane is 23X worse than CO2 for warming, that doesn't make 5% of methane equivalent as a concern. 

    Almost no one (well, no one sane) denies CO2 as a concern, it is really the feedbacks that get people arguing. 
    Fred Phillips
    What bothers me about environmentalism is the waves of fashion. First, let's get bothered about particulates and soot. Then no, we should worry about ozone-eaters, like chloroflourocarbons. Then oxides of nitrogen. Then about carbon dioxide. Then, maybe if we inject, well, essentially soot, into the atmosphere, it will reflect sunlight and mitigate planetary warming.

    My father, who was instrumental in weaning the appliance industry off of CFCs, tells me that one of the alternative refrigerants then being considered was... carbon dioxide.

    The EPA, too, is right in concept but clumsy in communication. Soil erosion and aquatic habitat are legitimate
    environmental concerns, and fast-flowing water where it did not flow fast before, does cause erosion and habitat degradation. Calling such water a 'pollutant' may statutorily put it within the EPA's authority to regulate, but geez what a public relations boo boo.
    Did the author of the article read the CWA carefully before publishing? I apologize if that sounds snarky, but this article seems to miss the mark on several of its legal interpretations. As of 1968, the EPA actually does have the right to declare address degradation of stream quality, including loss of existing recreational uses. Check out 40 CFR 131.12.

    More to the point, this article really seems to miss the boat when it comes to how TMDLs work, and in doing so, maligns scientists at EPA for no good reason. Volume of flow in streams is often regulated as part of a TMDL without declaring it a pollutant as such. This is done because for decades Americans have been comfortable with the idea of diluting pollution rather than removing it. It is often more scientifically feasible and more economically justifiable to increase stream flow instead of tackling the actual problem. Consider for example stream temperature issues - you could put a giant chiller on the waste water treatment plant, or you could regulate downstream flow to dilute the high temperatures entering the mixing zone more quickly.

    Temperature is a great example for comparison here, actually, because it leads to a better understanding of the real problem. The CWA was designed to address clearly and well point source pollution by chemical discharge, and it has really achieved a lot in that regard. It was not well designed, however, for protecting total stream health and balancing upstream and downstream interests between uses. When you have problems such as the one mentioned in this article or temperature, often times they result from aggregate land use choices that are backed in D.C. by some big interests. If not at the time it was passed, those lobbies certainly prevent the expansion of CWA to deal with these issues today.

    Watershed-scale, land use driven environmental issues are not new. They are just clearer because point source causation has largely been removed from the equation. As it stands, the CWA begs for articles like this one blaming scientists and environmentalists for over-reaching and trying to meddle in the affairs of others. So if we really care about rivers and streams, the reality is that we will probably as a nation need to pass a more effective law that allows us to address this much more complex part of the equation.

    I note in the article that sediment is considered a 'pollutant' by the EPA.  That does not make it right but it misses the two key points.  The macroinvertebrate population was determined by people at the EPA based on...nothing...a guess at historical numbers, and the EPA has done no work to show that making anyone spend $500 million will make the benthic impairment issue disappear.  

    I am not saying the EPA has not done valuable work - I think Richard Nixon does not get enough credit for being the second most green president in history (another Republican, Teddy Roosevelt, is first) - but when they make stupid rulings, and this one is stupid, they have to be called out.  Lecturing people here about TMDL is pointless, since the TMDL in this case seems to have been made up.  There is no good reason that the EPA settled with the American Canoe Association and mandated this - unless it was a fake lawsuit in the first place.

    The solution is clear if you think this is necessary; raise the $500 million and fix it.  But I am betting when it is your money and your land being stolen by the government to build all that new infrastructure you will change your mind about how much you 'care'.
    Since you wrote this in 'response' to my comment, maybe I should clarify...

    I don't support unconstitutional takings and I absolutely believe that there are some major land use issues to be balanced here.

    But this isn't really about me as a canoeist or environmentalist - the real problem here is between upstream economic interests and downstream economic interests. And it plays out in watersheds nationwide. From forestry in headwaters to agriculture in the valley to municipal drinking water demands and right on through to estuary aquaculture production, EVERYONE depends on stream water quality to make their money. When it comes to sediment transport in particular, you can get multiple economic interests battling it out in the courts and local government even without bringing 'environmentalists' into it.

    So, it doesn't matter if I care or if my money is on the table. It matters if city planners, fishermen, farmers, and foresters care, and how much of their money is ultimately on the table.

    The local people filed the lawsuit - only one member of the Board objected and he only objected because the state Attorney General is a Republican.  So clearly they do not think the EPA is helping the environment - unless we are to believe the people actually living there care less about their environment than out-of-state canoers and bureaucrats.

    And it's not like this is some giant coal-mining business where people will be unemployed so locals have to give in or lose their jobs.  This is no economic interest of any kind.  How are local people supposed to feel ownership for environmental causes when their land is taken under eminent domain to build a project no one can prove they need? Instead, the EPA and environmentalists will be the enemy for the rest of their lives.

    This is the creek we are talking about.  What giant, competing financial interest is this? It looks nice, my family has similar lovely places in Pennsylvania and I love to enjoy them.  But if the EPA told us all we had to spend $500 million because there was too much water for worms, we would laugh at them. And then get very nervous, because the EPA doesn't do as much science as they do enforcing settlements they agree to without any reason.

    Credit and link: Stephen Little flickr
    I am curious how a lawsuit filed by the American Canoe Association turned into an extremely expensive attempt to improve the habitat of invertebrates in a small stream (7 1/2 miles long).

    FWIW, the EPA's report is here:

    There is a fair amount of data presented in the paper. But behind the data is quite a bit of conjecture. A demand for $500 million in improvements should have a lot less conjecture behind it. There should be an independent measurement of the benthic animal density. The EPA should also clearly explain why Catoctin Creek and Buffalo Creek are serving as the baseline for Accotink Creek. How similar are their topographies, soils, etc.? Why were other creeks closer by in NoVA not used (e.g. Pohick Creek and Dogue Creek).

    Keep in mind there are lots of invertebrates in the creek--just not as many as the EPA would like. Also the fish population appears to be doing just fine.

    Based on a quick scanning through of the article and comments thus far, I simply do not understand how water can be made a pollutant by EPA. To me it looks like  another example of lawsuithornies having yet another the USA. :-)
    Bente Lilja Bye is the author of Lilja - A bouquet of stories about the Earth
    They won't call it a pollutant but they call it the culprit in their "stressor identification" - which is a pollutant in every other case.   It seems silly to claim that there are not as many worms now as there should be at some arbitrary point in time they picked and demand a $500 million fix.
    It is about time for the states to claim the 10th Amendment of the US Constitution and tell the Feds to walk East until their hat floats!

    Maybe it is time for NASA to really get on the move and find humans another planet to move to since it seems that we, as american citizens, no longer have control over our own life, land, health, environment. Just let the "bugs" take over!! And leave EPA here to control their habitat.

    Gerhard Adam
    I'll never understand how people can be so unhappy with a government that they have chosen.
    Mundus vult decipi