Watered Down
Here’s a ten-year old piece from Fly Rod & Reel about Clean Water “guidance” from the George W. Bush administration. What Bush did to the act Obama undid. Now Trump has reverted to the Bush philosophy--clean up mainstem rivers but let polluters foul tribs.
Americans haven’t figured out that pollution control is an expensive investment that prevents far greater expenses. And with the fish, wildlife, recreational opportunities, and health benefits that come with pollution control, it’s a huge money earner. We all want clean water; we just don’t want it enough to pay for it.
by Ted Williams
In 1972 Congress enacted the Clean Water Act, bold legislation that was going to make all waters of the United States “fishable [safe for fish eating] and swimmable” by 1983, then end all pollution by 1985.
The law was born of frustration. Pollution control by state wasn’t working. Municipalities were resisting modernizing their sewage-treatment plants, arguing that major investment was pointless until industrial sources were controlled. And industry declined to act on grounds that sewage pollution would render such expenditure a waste. In 1969 reported fish kills, each accounting for hundreds or thousands of fish, reached a record of 99,100. The same year Cleveland’s Cuyahoga River caught fire, providing Randy Newman with the lyrics to his memorable song, “Burn on Big River.” About 65 percent of the waters in the contiguous states were neither fishable nor swimmable.
The Clean Water Act authorized the EPA to set limits on pollution by awarding discharge “permits.” Under the “polluter pays” concept industry was required to pick up the tab for treating its waste, but municipalities got huge grants to upgrade sewage plants from primary (removing solids) to secondary (substantially reducing biological content).
Few Americans--least of all Congress, which passed the Clean Water Act over President Nixon’s veto--understood water pollution in 1972, hence the law’s naïve goals and, even after amendments in 1977, 1981 and 1987, its thoroughly inadequate prescriptions for “non-point sources” such as runoff from streets, animal feedlots, and cropland. Still, federal regulation and appropriations got things moving. For something like two and a half decades successes were dramatic. The Cuyahoga, for example, ceased being a fire hazard and, instead, became a recreational attraction even providing spawning and nursery habitat for steelhead trout. But sometime around the mid- or maybe late 1990s national progress ceased. Today about 40 percent of our waters flunk federal quality standards; and, as our population increases, we’re backsliding.
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There is no better case study of what the Clean Water Act has and hasn’t done than the fluctuating fortunes of the Blackstone River, which rises under the streets of Worcester, Massachusetts and runs 46 miles to Rhode Island’s Narragansett Bay. Because its fast current gave birth to America’s industrial revolution it became the nation’s first and worst polluted river. In 1986 Congress designated most of the watershed a national heritage corridor to be administered with federal appropriations by a commission comprised of representatives from the National Park Service, state agencies, elected officials, and communities. Since then the “John H. Chafee Blackstone River Valley National Heritage Corridor,” as it is ponderously called, has been effectively protecting and restoring open space, historic buildings, and other cultural and environmental resources. In 1998, after frenetic lobbying by the Massachusetts and Rhode Island congressional delegations, the EPA named the Blackstone one of 14 “American Heritage Rivers.”
In my November-December 1995 Incite column--basically a response to the House Republicans’ effort to disappear the Clean Water Act--I noted that the cleanup of the Blackstone River “isn’t finished.” But with our title, “The Blackstone Now Runs Blue,” we may have gotten a bit carried away with the law’s early success. When the sun is out and you’re not standing in or floating on the river it looks blue. But blue doesn’t mean healthy. The Blackstone was sick in 1995; and because of increased urban runoff and inadequate sewage treatment, it’s just as sick today.
Still, long-term recovery of aquatic ecosystems has been astonishing. When my wife and I settled beside the river in 1970 one species of fish--the white sucker--survived in the mainstem. That year our insurance agent’s dog frolicked in the Blackstone and died as a result; since 1995 our dogs have frolicked in it and only smelled worse (or occasionally, depending on previous activities, better). Where we had encountered only sludge worms in the 1970s and 80s, we’ve been seeing crayfish and turtles since the mid-1990s. Today the mainstem sustains 19 species of non-migratory fish; and because sea-run species such as blueback herring, alewives, and American shad can finally spawn again, fish ladders are going in at the lower four dams.
But, like so many other urban and suburban rivers across America, the Blackstone isn’t anywhere near swimmable; and while it offers superb angling, especially in its lower sections after it has been aerated by myriad waterfalls, you wouldn’t want to eat a resident Blackstone River fish.
I was reminded of this fact on a warm, damp morning this past November as I inhaled the ammonia fumes wafting from the outfall of the Upper Blackstone sewage treatment plant which serves greater Worcester. Standing beside me on the Blackstone River Bikeway (a Heritage Corridor project that will connect Worcester with Providence, Rhode Island) was the leading authority on the river and its most tireless advocate--Donna Williams, the Massachusetts Audubon Society’s conservation advocacy coordinator, president of the 11-group Blackstone River Coalition, and vice chair of the Corridor Commission. Williams, a lifelong valley resident, has been probably my most reliable and certainly most accessible source on water pollution for most of the 39 years we’ve been married.
“Look at all the macrophytes,” she declared, pointing to the treatment-plant effluent entering the river to our left.
“Remind me what those are,” I said. She explained that they’re rooted aquatic weeds, that they shouldn’t be here, and that they’re a symptom of gross man-made fertilization. The main fertilizers (nutrients) issuing from this plant and similar facilities across the nation are phosphorus and nitrogen, and they kill aquatic ecosystems in the way that a massive injection of adrenalin would kill a human. The nutrient cycle slams into fast-forward, vegetation proliferates, and bacteria break it down, exhausting oxygen. In freshwater phosphorus does most of the damage; in saltwater it’s nitrogen. The bilious, undulating mat extended from the outfall as far downriver as we could see, but above the outfall the river bottom was bare gravel.
Sewage treatment plants have done a decent job controlling solids, fecal coliform bacteria, viruses, and heavy metals. But removing phosphorus and nitrogen requires new, expensive equipment. When the EPA was doling out lavish construction grants, municipalities couldn’t wait to renovate their plants. But that enthusiasm dried up in the late 1980s along with Congressional appropriations. “Worcester is no worse than lots of cities,” Williams told me. With that, she drove me to her office at Massachusetts Audubon’s Broad Meadow Brook Wildlife Sanctuary in Worcester and turned me loose on her voluminous files, from which I unearthed a chronology of the Clean Water Act’s fizzle on the Blackstone microcosm.
In 1991 the EPA had issued Worcester’s treatment plant a pollution permit that didn’t cover nutrients. The slightly stricter permit, due in 1997, wasn’t issued until 1999, at which point the city appealed it. After three years of negotiating and compromising, EPA issued a modified version. Although this gave the plant a continued free pass on nitrogen, it did require a modest cap on phosphorus of .75 milligrams per liter, but not until 2009.
In 2008--even as the environmental community scolded the Bush Administration for transmogrifying bizarre Supreme Court decisions into an end run around the Clean Water Act--Bob Varney, administrator of EPA’s New England office, stood tall for fish and wildlife, issuing the Worcester plant yet another permit that required a cut in phosphorus to .1 milligrams per liter and, for the first time, imposed a nitrogen limit (5 milligrams per liter). “There’s no deadline because the city is appealing this permit, too,” Williams said. “I wouldn’t expect this second set of upgrades to be online before 2020.”
Or maybe never, if outraged city fathers prevail. “It’s totally illogical to impose more stringent limits when we are only halfway through the [first] upgrade,” public works commissioner, Bob Moylan, told the Worcester Telegram and Gazette, neglecting to point out that the reason they were only halfway through the first upgrade was because they’d fought it. And city manager Michael O’Brien chimed in with: “Enough is enough. This cannot be passed on to the Worcester taxpayer.” Why not? one might ask. The average Massachusetts household pays $440 a year for sewer services while the average Worcester household pays $381.
As Moylan correctly observes in prefacing long “but” clauses, “everyone wants clean water.” It’s just that in Worcester, as in many cities and towns across America, they don’t want it enough to pay for it. And what’s truly unfair is that who pays the costs of this misfeasance are downstream communities like greater Providence, Rhode Island--which has embraced Clean Water Act caps on nitrogen at its two sewage treatment plants and has just completed a half-billion-dollar system to catch and treat stormwater runoff.
Also paying for Worcester’s dereliction is Narragansett Bay. It takes the tide almost two weeks to flush the 25-mile-long, 10-mile-wide bay, so nitrogen wreaks havoc in the upper, brackish section that, otherwise, would be the most productive. Salt marshes are dying. Eel grass, important to fish and wildlife, has declined from perhaps 16,000 acres before 1930 to roughly 300 acres. Smelt, shad, herring, flounder, alewives, and eels have been decimated; and dieoffs of shellfish, crabs, and fish have become a summer tradition. This past August, for example, the upper bay rippled with juvenile flounders vainly trying to leap out of the deoxygenated dead zone created by nitrogen. Soon their rotting carcasses lined the scum-crusted shore.
What’s more, the pollution woes of rivers like the Blackstone and estuaries like Narragansett Bay are being magnified by climate change. Precipitation is more frequent and severe, and runoff has increased with the steady spread of asphalt and cement. In the upper Blackstone watershed 25-year floods now send as much polluted water downriver as 100-year floods used to. Global warming is speeding the rate at which bacteria deplete dissolved oxygen; and rising sea level is creating more saltwater intrusion--a death sentence for wetlands, estuaries, and the rich life they sustain. Over the past 50 years the average temperature of Narragansett Bay has increased four degrees. That doesn’t sound like a lot; but it’s huge if you’re a gill-breather.
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Like virtually all rivers, the Blackstone is fed by wetlands and small streams, some of which appear “isolated” and/or dry up in summer. No one even vaguely familiar with flooding and groundwater flow would contend that any are truly isolated from the river. And the fact that some dry up makes them more--not less--important to wildlife. Consider the vernal pool in Sutton, Massachusetts where one spring afternoon Donna Williams showed me wood frogs, spotted salamanders, and a blizzard of fairy shrimp. The frogs, salamanders and shrimp survive because fish, which otherwise would eat them, can’t. Consider also my secret fishing spot in central Massachusetts, a tiny rill I call “Hyla Brook.” You won’t find much of it in high summer because, as Robert Frost wrote of his Hyla Brook, “It’s bed is left a faded paper sheet/ Of dead leaves stuck together by the heat/ A brook to none but who remember long….” But with fall rains gaudy native trout ease up into Hyla Brook to spawn; and it provides them refuge when winter spates and snowmelt send silt and road salt into the perennial Blackstone tributary that collects it.
These types of habitats--half of all stream miles in the contiguous states and about 20 million acres of wetlands--were placed in jeopardy not by the 2001 Supreme Court decision known as SWANCC (for the Solid Waste Agency of Northern Cook County, which sought to discharge into Illinois wetlands) but by the intentional misreading of that decision by the Bush administration. The court had merely ruled that a nonnavigable water completely in one state could not be protected by the Clean Water Act simply because it was used by migratory birds.
But there were other reasons the feds could have protected waters that appear to be isolated. “Those reasons,” reports Audubon’s chief operating officer, Bob Perciasepe, “include holding of floodwater that can cause interstate damage, holding of pollutants that can cause interstate damage, harboring of endangered species which have federal jurisdiction, even the hydrologic cycle [interstate transfer of water via evaporation, precipitation, and ground flow]. During President Clinton’s first term, when Perciasepe served as EPA’s assistant administrator for water, he and his staff wrote the policy memo for the migratory-bird litmus test. “We only chose that one,” he says, “because it was simple and easy to establish.”
Obviously, sewage pumped from honey trucks into the dry bed of Hyla Brook would find its way to the Blackstone with the first big rain. No sane, sober person who wasn’t fronting for special interests would contend that the framers of the Clean Water Act intended to exempt polluters who foul streams or wetlands that, for part or all of the year, feed navigable waters. But with its 2003 “guidance” document the Bush administration essentially instructed EPA and Corps of Engineers enforcement personnel to do exactly this.
The 2006 Supreme Court decision known as Rapanos--involving two Michigan developers who sought to build shopping malls on wetlands--opened the door for more mischief. Four justices contended that the Clean Water Act didn’t apply unless a wetland abutted a non-navigable water body that fed a navigable one; four disagreed; and one divined that there needed to be a “significant nexus” (whatever than meant) between wetland and water body. So, by court precedent, the significant-nexus rule became primary, and the Corps was left to apply it on a case-by-case basis. Today, with no intelligible guidance, the rule festers in fog; and developers have seized it as an excuse to plunder. In an internal memo, leaked to Greenpeace, EPA's assistant administrator for water, Benjamin Grumbles, reported that between July 2006 and December 2007 his agency refused to enforce the Clean Water Act against apparent violators 304 times “because of jurisdictional uncertainty” allegedly created by Rapanos. ]}
As Perciasepe puts it, “a perfect storm of government ambivalence, aggressive polluter activism, and a split Supreme Court have subverted the original intent of the Clean Water Act.” Clearly, Congress needs to insulate from banal and/or malicious misinterpretation its obvious aim of controlling all pollution whether or not waters delivering that pollution can float a boat. The Clean Water Restoration Act, sponsored by Rep. James Oberstar (D-MN) and Sen. Russ Feingold (D-WI), would have done this by specifically including isolated wetlands, headwaters, vernal pools, intermittent and ephemeral streams and--even though the original text never states or implies that cleanup should be limited to navigable waters--deleting the word “navigable.”
This reform, filed and spiked every session since 2003, did no better when the Democrats took control of Congress. “The bill couldn’t even get a hearing when the Republicans had the majority,” explains Jan Goldman-Carter, the National Wildlife Federation’s attorney for wetlands and water. “This last session [2007 and 2008] we were finally able to engage in the debate, but because we were having success in getting hearings and the attention of Congress, the Farm Bureau and the homebuilders came out of the woodwork. We feel pretty good about our ability to move the bill in the next [111th] congress.” She went on to note that Obama, through campaign spokesmen, has pledged support for such legislation and that the bill will save money by reducing all the confusion and resulting workload generated by the Bush guidance.
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On the Blackstone River Bikeway, about a mile upstream from the treatment plant, I noticed trash festooning branches at least six feet above the flow. Massachusetts Audubon’s Donna Williams explained that it had been hung there by the October 2005 flood that overwhelmed the facility to the point that 120 million gallons of raw effluent spilled into the river. Aging plants like Worcester’s can’t handle big slugs of stormwater when it overflows into ancient, porous sewage pipes. But the 1987 amendments to the Clean Water Act provide only marginal regulations for urban runoff.
And there are no regulations for agricultural runoff. Ethanol production--a public-financed net energy loss perpetrated by agribusiness [see: “Drunk on Ethanol,” July-August 2004]--is converting wildlife habitat to corn, which requires more fertilizers and pesticides and creates more soil erosion than any other crop. Just as Worcester’s inadequately treated sewage helps create a dead zone in Narragansett Bay, runoff from the cornbelt helps create one in the Gulf of Mexico. This past July the Gulf’s dead zone was the second biggest ever recorded, covering 5.1 million acres.
“The politics of agriculture are baffling,” comments Nancy Stoner, clean water director for the Natural Resources Defense Council. “We have fewer and fewer farmers, but they continue to have enormous political power. Many are good stewards, but groups like the Farm Bureau Federation reduce them to their lowest common denominator. Most pollution controls can easily be incorporated into farm practices without a loss of revenue. It’s very simple stuff--spring fertilization [so nutrients will be taken up by crops instead of needlessly washing into water bodies during fall and winter], stream buffers, fencing cows out of streams…. None of this is required because the Farm Bureau has blocked it for decades. It has even prevented regulation of factory farms which produce about three times as much [sewage] pollution as humans. It’s as if we’re in a third-world country.”
Under the 1987 Clean Water Act amendments the EPA is requiring communities to implement modest bylaws to reduce stormwater. But there’s stiff resistance. My town of Grafton, Massachusetts is typical. It missed its May 2008 deadline to consider a bylaw; and development interests stayed at the October town meeting until 11:45 p.m. to vote it down. Ironically, good stormwater bylaws would save developers money. Curbing, for example, should be eliminated so water can flow into low, vegetated swales instead of storm drains. Cul-de-sac islands should be low and vegetated, the roads one-lane and one-way to reduce runoff. Driveways should be short and narrow. Houses should be clustered, open space maximized. And there is no reason, financial or otherwise, not to require pervious surfacing with crushed stone, concrete blocks or any of the readily available brands of porous cement and asphalt.
But the public shouldn’t expect regulations to take care of everything. Homeowners can do a great deal on their own. For example, one inch of rain sends 832 gallons off the roof of the average American house. Instead of shunting that water down the storm-drain system to foul the nearest stream, you can redirect it to your lawn, woodlot or garden. Cars should be washed on lawns, not driveways. Septic systems should be maintained, no-phosphate soap used in dishwashers, lawn fertilizers and pesticides reduced or eliminated, dogs encouraged to do their business on vegetated surfaces.
After I’d raided Donna Williams’ files, she showed me the Massachusetts Audubon Society’s new rain garden that collects roof runoff. Proliferating in the lowest parts were such water-tolerant species as highbush blueberry, sweet pepperbush, winterberry holly, turtlehead, swamp milkweed, and joe-pye weed. Higher, drier sections grew purple coneflower, bee balm, lowbush blueberry, fall-blooming aster, black-eyed Susan, deutzia, yarrow, sea oats, and redstem dogwood.
Here was a treatment plant anyone can build in a day, one that prevents pollution even as it produces beautiful, native flowers and berries relished by birds. Suddenly I felt the return of the appetite I’d lost as I stood in the ammonia-scented breeze, staring down at the bilious, undulating mat of macrophytes. And I took my wife to lunch.