The original Ghostbusters film featured a scene wherein an overzealous Environmental Protection Agency (EPA) agent named Walter Peck stormed into Ghostbusters headquarters brandishing a court order. Citing violations to the Environmental Protection Act, a law that never existed, Peck shut down the spectral laser containment unit. Paranormal bedlam ensued, and everyone knew whom
to call.
Now an overzealous EPA is causing problems in real life. Local government officials nationwide grimaced when the agency revealed an ambitious scheme to regulate municipal stormwater under the Clean Water Act. An example of EPA heavy-handedness at its worst, the policy promised to cost local governments a fortune in compliance measures at a time when many California communities just began furloughing teachers.
The strategy finally ran aground in January when a U.S. District Court judge ruled that water that incidentally runs through city or county drains on its way down the watershed isn’t pollution. The decision proved an embarrassing blow for EPA Administrator Lisa Jackson, who targeted tighter stormwater regulations as a hallmark of the Obama EPA’s water pollution reform goals. She resigned within days of the judgment. Jackson’s replacement must decide whether to appeal the ruling as soon as the president selects a person to man the loneliest post in Washington.
Dear Mr. or Ms. Chump Administrator, please don’t.
Stormwater pollution is a serious water quality problem. Jackson admittedly offered up a bold remedy with an enticing payout, but pushed too hard and too fast. In the end, the grassroots brush-back proved as painful to agency leadership as its recent court defeat. Much of the grumbling occurred in the West, where the perceived liberalism of the Ninth Circuit makes an attractive venue for environmental litigation.
One such case pitted environmental groups against Los Angeles County before the U.S. Supreme Court. The lawsuit involved stormwater flowing through improved segments of the Los Angeles and San Gabriel rivers. The Ninth Circuit agreed with the plaintiffs that stormwater in the improved river segments became a discharge of accumulated pollution when the river returned to its unimproved bed. On Jan. 8, the Supreme Court unanimously overturned the decision because no pollution discharge occurred.
Have you been to Los Angeles? Those rivers are comprised of discharge. Paleoecologists will one day call them discharge-dependent ecosystems. In real terms, the Supreme Court ruling is hogwash. However, in Clean Water Act world, the message was clear and logical: The country is not yet ready for stormwater to be a discharge.
Consider the relatively clean city of nearby San Luis Obispo. Water flows from the ridgelines of the Irish Hills and Santa Lucia Range into the city limits where it picks up fertilizers from all the gated communities on the edge of town. Some of it also becomes agricultural runoff. When it rains, petrochemicals left on the roadways from cars, road construction, and the railroad swirl into this nitrogen and potassium cocktail. Finally, it passes through improved segments of San Luis and Brizzolara creeks downtown, where street people add their own personal essence.
Under the Clean Water Act, the EPA can force a lumber mill to clean up water discharges that might include one or two kinds of chemical contaminates. However, municipal stormwater is better traveled and far more voluminous. Application of the Clean Water Act to stormwater would cost western communities an incalculable sum, or at least a sum this writer isn’t willing to calculate.
Coverage of the issue often discusses what judges determined the Clean Water Act says, but here’s a little secret: The statute hardly says anything. The act only prohibits the unregulated discharge of pollutants into the navigable waters of the United States. The courts and administration then negotiate what kind of activity that language covers. For example, the Clean Water Act recently spontaneously expanded to cover the runoff created by the vast network of logging roads criss-crossing the Northwest. The ruling vacated the U.S. Forest Service’s age-old “silvicultural rule” that logging runoff is not a pollution source.
Like many federal agencies, the regulatory conviction of the EPA waxes and wanes with the presidential cycle. Sometimes environmental litigation can last years, so the record for individual cases may show drastic changes in strategy, like drought years preserved in the tree rings of bristlecone pine. The reelection of Barack Obama came as a relief to litigators on the side of environmentalists because they can count on the government to not suddenly abandon the defense of its newer regulations for at least another four years. But change will come, rest assured.
The real problem with the EPA’s stormwater gaff wasn’t ideological but logistical. Since the Clean Water Act says virtually nothing, regime changes build gradually upon previous regime changes. Sudden overhauls threaten to cause the system to collapse on itself like a neutron star, forcing the Congress to get involved. In case you stand unaware, the Congress is not especially proactive.
More importantly, the EPA should move slowly so as not to lose support among progressive communities lacking the funds to overhaul their infrastructures overnight. About the same time that some environmentalists tried to clobber Los Angeles County with the Clean Water Act, county officials hatched their own plan to gradually deal with its significant stormwater pollution problem. The L.A. Board of Supervisors waited to adopt the program on Jan. 15 only after several hundred angry property holders came in to complain about the proposed impact fees to finance construction of the treatment facility.
The fact that L.A. County would even try to clean up its stormwater act so soon after the Supreme Court let it off the hook is a telling development. Southern California counties no doubt want to limit stormwater pollution in the long run because doing so would conserve an economically valuable resource and prevent future Clean Water Act liability. Yes, the Clean Water Act will one day play a role in the regulation of stormwater, whether Congress amends the statute or not.
However, the Clean Water Act wisely doesn’t say stormwater can be federally regulated now. For the EPA to march in heavy-handed bureaucrat regulators with unfunded mandates in tow is a policy that would come back to bite the environmental cause when the Republicans reclaim the White House. Black, white, liberal, conservative, banking executive, or hippie dirt farmer—nobody likes a Walter Peck.
Patrick M. Klemz is a staff writer for New Times, the Sun’s sister paper to the north. He ain’t afraid of no discharge. Contact him at pklemz@newtimesslo.com.
This article appears in Feb 14-21, 2013.