Water Policy:

Former EPA water administrator previews Supreme Court action on Clean Water Act cases

How will the Supreme Court's hearing of two Clean Water Act cases this fall impact action coming out of U.S. EPA and Congress? During today's OnPoint, Ben Grumbles, president of the Clean Water America Alliance and a former assistant administrator for water at EPA, discusses the political and policy implications of the court's consideration of these two Clean Water Act cases. He also weighs in on why the court has had increased interest in hearing Clean Water Act cases in recent years.

Transcript

Monica Trauzzi: Hello and welcome to OnPoint. I'm Monica Trauzzi. Joining me today is Ben Grumbles, president of Clean Water America Alliance and a former assistant administrator for water at the U.S. EPA. Ben, thanks for coming back on the show.

Ben Grumbles: My pleasure.

Monica Trauzzi: Ben, the Supreme Court has decided to hear two Clean Water Act cases and the first is a dispute over whether to permit storm water washing off logging roads. What are the legal questions in that case?

Ben Grumbles: You know, I think they've been having so much fun with healthcare they want to focus on environmental health care under the Clean Water Act and I think they're taking both of these cases because of the issue of channelized storm water. It's a perfect example of determining the jurisdictional boundaries in a gray area. And so they seem very intrigued by this difficult choice of what is and isn't regulated under the Clean Water Act.

Monica Trauzzi: Right and it does seem that they've been particularly interested, in the last couple of years, in Clean Water Act cases. Why is that?

Ben Grumbles: Well, from a Clean Water Act nerd like myself, it's easy to answer that and that is, as the act is on the verge of celebrating its 40th birthday in October of 2013, well, it's aging and there are some unclear boundaries now on the diffuse areas. The 40th birthday is actually in October of this year, 2012, because in 1972 the Congress enacted the law over the president's veto and laid out very clearly that point source discharges from municipalities and the industries would be subject to this broad new regulatory approach. Well, over the last few years as we all get smarter about diffuse runoff, pollution and how it's a major threat to waters across the country, there's a very legitimate legal question. And the Supreme Court, over the last few years, has really wrestled with what is and isn't covered under the Clean Water Act.

Monica Trauzzi: So, then how does the court taking up these cases affect what we might see coming out of EPA and Congress on these issues?

Ben Grumbles: Yeah, so these decisions are not focused on what is and isn't a water of the United States or what is and isn't a wetland, which the Supreme Court has been very active in and everybody is wrestling over to try to interpret that. This one is what types of discharges of pollutants-are you adding pollutants when you are moving water through logging roads or urban flood control channelized concrete conveyances? EPA understand that this has been a real issue and has a lot of different players involved who don't want to see an expansion, a dramatic expansion of the Clean Water Act permitting program. And the environmental community has been saying, look, the reality is, is that some of these activities are leading to major water quality problems. So, EPA has been trying to address the matter administratively. It hasn't been enough and the litigants have succeeded in getting the Supreme Court to take it up and they seem enthused about this jurisdictional issue.

Monica Trauzzi: So, any chance that we might actually see action from EPA or Congress prior to the court making a decision?

Ben Grumbles: You know, the short answer is yes, although now that the Supreme Court has taken up the logging road case, it's less likely that EPA will move forward swiftly with and finalize a clarifying rule on the so called silvicultural exemption, which has been in their regulation since 1976. But they've started that process and they made a push through the solicitor general for the Supreme Court not to take up the case, that they could solve it administratively. And, you know, now that the Supreme Court has taken that case it's likely that EPA will build a foundation, but need to wait until the decision comes out in the next term.

Monica Trauzzi: So then, specifically, what is the timeline that we would be looking at from the Supreme Court?

Ben Grumbles: So, the Supreme Court has decided to take up this case in their next term, which starts in October of this year, which is, like I was saying, the 40th anniversary of the Clean Water Act, October 18. This may not be one of the first or earliest decisions they make, but it will be sometime before the end of June 2013 that you'll get a decision on this very discreet question of whether or not logging roads should be treated somewhat like industrial pipes and municipal wastewater pipes and trigger a Clean Water Act permitting requirement. And so that's the timeline. And so EPA, who wanted to move forward with clarifying their existing regulation that says these types of road, logging road discharges don't require a Clean Water Act permit, probably will not be able to move forward successfully. They'll need to wait and see what the Supreme Court says sometime between October and June of 2013.

Monica Trauzzi: So, the second case deals with whether the L.A. County Flood Control District is liable for the discharge of polluted storm water into two rivers. How does that sort of play into the politics of what we're seeing coming out of EPA and Congress?

Ben Grumbles: Well, for both of these issues it's really a question of local control or state rights versus a federal EPA permitting program. Now, this case is-it's kind of like a natural outflow of the Miccosukee Indian tribe Supreme Court case where the Supreme Court said, several years ago, we don't think a permit is required when you're simply moving water, when you're transferring it. Although, we're really intrigued by this unitary waters theory and the agencies and the lower courts need to flesh this out as to when a permit is required. The L.A. County storm water flood control case that involves the L.A. River and the San Gabriel River? No, it's a couple rivers, the Supreme Court will only be hearing about two of the rivers, not four of them, San Gabriel I believe. It's really it's a question of is moving water through a concrete channel within the same river, built into the same river, does that trigger a Clean Water Act permitting requirement? Is that the addition of a pollutant that would trigger the permitting requirement? And storm water flood control districts around the country are watching that very carefully and very concerned as our drinking water officials and agencies that this might lead to a dramatic expansion of the scope and universe of the Clean Water Act permitting world, the storm water permits. And so the stakes are really high. From an environmental community standpoint that is precisely where a lot of the metals and pollutants of concern come from. It's from storm water and moving water around. But it's a really important jurisdictional question. It's not going to answer what is and isn't a wetland, but it is going to hopefully add clarity rather than mud to the question of what types of movements of storm water trigger the Clean Water Act permits.

Monica Trauzzi: All right, it will be interesting to watch. Thank you for coming on the show.

Ben Grumbles: Thank you.

Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.

[End of Audio]

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