Appeals court rules EPA must protect waterways from construction pollution 3

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1. 

   2wheeler Posted 3:48 am
   19 Sep 2008

   misses the pointHeavy metals?  That isn't all that matters here under clean water act requirements.
   Sediment itself from anthropogenic sources (such as construction sites or post-developed urban sites) may be considered a pollutant under the clean water act.  It is well known that excessive sediment loading destroys aquatic habitat for the diverse biotic assemblages that are necessary for healthy rivers. Specifically, the macroinvertebrates (bugs) habitat on the stream bed may be smothered. This affects the entire food chain in the system, including the biodiversity of fish.  
   I may be paraphrasing a bit here, but I believe the Clean Water Act specifies that rivers and streams are to be fishable (as well as drinkable and swimmable).  Loss of fish species may be quantified in terms of an index of "impairment" to define when rivers do not meet the clean water act in a scientific sense.  Loading rates and Clean Water Act permit conditions by the delegated states and US EPA regulators may be structured accordingly to prevent such degradation.
   The state of Ohio rules have defined these related measures in its implementation of the Clean Water Act: Index of Bioloogical Integrity (IBI),  Invertebrate Classification Index (ICI), and Qualitative Habitat Evaluation Index (QHEI).  Numeric scores of each may be utilized to declare objectively whether a stream meets its natural aquatic use criteria.
   In addition there is a defined concept of Best Management Practices for construction site management and erosion control which the US EPA and states are cataloguing and which could easily be mandated according to site specific criteria of what will work best in a given scenario.
   The problem is the construction sites involved which become subject to this regulation are usually those over a certain size area or acres of disturbed ground, rather than by a more appropriate yardstick in terms of the actual or potential loading of pollutants in the site's runoff.  These variables may be dependent on other characteristics such as soil type (sand, silt & clay ratios), site slope, etc.
   I contend that the vast majority of excessive nutrification (algae growth and "dead zones" creation downstream as in the Gulf of Mexico and other receiving lakes) is likely due not to sediment loading from construction sites, but to fertilizer runoff from the industrial farming practices in rural areas-- which, to my knowledge, are still not directly subject to the Clean Water Act except through voluntary programs such as the USDA habitat set aside programs along rivers and wetlands.

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2. 

   guade00 Posted 7:51 am
   19 Sep 2008

   CWA stuffThis is a cool case. I like how the court uses Chevron analysis--which typically is highly deferential to administrative agencies--to slap down the EPA for its insolence.
   The 9th Circuit points out a curious feature of the CWA in that once the EPA includes a source as a "point source" it can not de-list the source, and EPA is compelled to issue effluent guidelines. The EPA tried to do this with construction sites, but the Court said no-no. This is a distinct omission within the CWA statute and makes me wonder if it was an oversight by Congress. At any rate, the more regulated sources the better in my book.
   And 2Wheeler is kinda correct in saying that industrial farming is not subject to CWA: Section 1362(14) specifically excludes agricultural stormwater discharges and return flows from agriculture. However, the 2nd Circuit ruled an irrigation system was a point source where it spewed so much crap onto a field that it flowed into a stream. 34 F.3d 114 (1994). In addition, "rolling stock, concentrated animal feeding operation...from which pollutants are or may be discharged" are point sources, which would implicate many industrial agricultural operations. So, there are ways that EPA can get at dirty farms.
   
   

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3. 

   Wolverine Posted 3:33 am
   20 Sep 2008

   RunoffHere in San Francisco Bay, urban runoff emits far more oil into the Bay than even the Cosco Busan oil spill that made national news.  It is vital to prevent runoff of pollutants considering how substantial that runoff is.  Too bad that agribusiness got an exception, but that's the kind of result you get when you have the best government money can buy.  But oil and other unnatural human pollutants are also very harmful and should be eliminated, or at least greatly reduced.

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