Court victory: 'Protecting the Clean Water Act itself'
May 29, 2014
Riverkeeper Team
One of Riverkeeper's most far-reaching victories of the year – thanks to our legal partners at Pace Environmental Litigation Clinic – is the defeat of a Clean Water Act exemption that had allowed the polluting of pristine waters by the transfer of water from one waterbody to another.
In an opinion issued on March 28, Judge Kenneth Karas of the Southern District of New York invalidated the Environmental Protection Agency's "Water Transfers Rule." The 2008 rule exempted transfers of water – and with it the unwanted movement of salt water, sediment and agricultural runoff – between water bodies from the requirements of a Clean Water Act discharge permit.
The change will help communities address specific local impacts from such pollution, says Pace Law School Professor Daniel Estrin, one of the supervising attorneys at the Pace clinic. It will help protect natural resources and human health – along with our legal recourses into the future.
“I also see this as protecting the Clean Water Act itself,” Estrin says.
The victory in Catskill Mountains Chapter of Trout Unlimited Inc. vs. U.S. EPA was a long time coming. In the late 1990s, trout fishermen approached Riverkeeper to blow the whistle on discharges of warm, mucky water into cold trout streams. Storms and development in the watershed flushed eroded silt and sediment into Schoharie reservoir, the northernmost part of New York City's water supply. From there, the turbid, warm water was sent down the 18-mile Shandaken tunnel into the Upper Esopus Creek, a trout stream known as one of the birthplaces of dry fly trout fishing. The discharges turned the previously “gin clear” upper Esopus into a brown, mucky mess that the locals now call “Yoo-hoo Creek.”
A successful case brought by Pace determined that the turbid flows amounted to a discharge of pollutants, and therefore New York City needed a permit to regulate the warm water flow and limit the turbidity. A second round of legal action had the same outcome. Still, New York City and other water management agencies argued against the requirement for such permits. The EPA during the Bush Administration was persuaded to provide an exemption that allowed for the pollution of the Esopus, lake Okeechobee in Florida, and hundreds of other waterbodies around the country.
The case was started by Riverkeeper, Waterkeeper Alliance, and local fishing groups, but was joined by the National Wildlife Federation, Environment America, a Native American tribe and others. Twenty states became involved, 10 on each side. Local agencies – water providers in Western states, along with New York City and the state of Florida – fought to keep the permit exemption.
In South Florida, the rule allowed the pumping of agricultural runoff – mainly from growing sugar cane, and containing high levels of pesticides and fertilizer – into Lake Okeechobee, a drinking-water supply.
The case centered on a principle called "Chevron deference," concerning a government agency's leeway in rule-making. In the end, the judge's ruling bolstered the protections in the Clean Water Act.
Ironically, the very successes of the Clean Water Act – the visible improvement of waterways – can diminish the public concern that led to its passage, Estrin said. That leaves openings for opponents of regulations to try to chip away at the act.
Congratulations to the clinic and to the Pace Law students who argued the case over the years. We are all better protected as a result.
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