Pending federal rule may threaten bodies of water
Written by Rochester Democrat Chronicle   
Tuesday, 05 September 2006 12:11

A pending federal rule could open Lake Ontario to the risk of new invasive species, the nutrient pollution that feeds seasonal algae blooms and the bacteria that can make swimmers sick, according to environmentalists and state attorneys general who have formally opposed the change.

"We think it opens up doors for all kinds of mischief," said Jim Tierney, an assistant New York attorney general.

Known as the water transfer rule, the change would give businesses and communities the right to shift water from one body to another without taking the cleanliness of the water into account by applying for federal pollution permits.

The federal Clean Water Act doesn't specifically state that such permits would be required for water transfers, but it doesn't exempt water transfers from the system, either.

Environmentalists worry that water from a contaminated lake or river could serve as a source of pollution for a cleaner body of water.

"People say you're just taking water from one place to another. But a lot of water — in its natural state — is different from other water," Tierney said.

Statistics alone suggest that water transfers would result in the spread of pollution, he said.

"It's appalling, but 34 years after the enactment of the Clean Water Act, about 50 percent of the water bodies in the nation still violate water quality standards," he said.

The federal Environmental Protection Agency argues that water transfers are necessary for flood control, irrigation and drinking water, and that the lengthy permit application and approval process is neither necessary nor required by law.

But in a scathing letter to the EPA, the attorneys general of more than a dozen states — including New York, Vermont, Connecticut, Delaware, Wisconsin, Illinois, Iowa, Kentucky, Minnesota, Missouri and Pennsylvania — said the plan violates the federal Clean Water Act.

The new policy would allow polluted water to be transferred into clean drinking water, salt water into fresh water, warm water into cold habitats, and chemical-laden water into irrigation water used for crops, they said.

"The EPA is supposed to be protecting us, and it's not," said David Guest, an attorney for Earthjustice, a nonprofit environmental group that files lawsuits to enforce laws on air and water pollution.

The attorneys general also argued that invasive species such as zebra mussels — which have starved native fish in the Great Lakes by devouring plankton — could be thrust into waters that are not yet infested.

Asian carp, another plankton-gobbling creature that crowds out native fish, could be dumped into Lake Michigan from the Illinois River under the EPA proposal, warns the Illinois attorney general's office.

"We were frankly astonished that EPA would propose something like this without even looking at the bad things that could happen," Tierney said.

New invasive species introductions in Lake Ontario and the Finger Lakes would likely be the major consequence of the change in western New York, he said.

Local advocates, including Rob Moore of the Albany-based Environmental Advocates of New York, believe all water transfers should be subject to the pollution permit requirement detailed in the federal Clean Water Act.

"Whenever you're moving millions of gallons of water, stuff could get in there that you don't necessarily want shooting out the other end," Moore said.

"The act is pretty clear on what the (permit) standard is. ... If you fail to do that, you're on the hook for whatever problem it may cause."

However, EPA officials say they believe Congress never intended it to have power over water transfers and it has not been their practice to require permits for water transfers except when ordered to do so by a federal court. Requiring a federal permit would be an "unnecessary federal interference" with state water rights, the agency says in its proposed rule.

The EPA decided to take action now because federal courts have given conflicting opinions in recent years about whether federal permits are needed for water transfers, said Ben Grumbles, assistant administrator in the agency's Office of Water.

Environmentalists have won several cases in which they argued that permits were required.

"We're proposing the rule to clarify the scope of the Clean Water Act and to help remove confusion," Grumbles said.

The EPA has the strong support of water agencies in the West, which say having to obtain federal permits would cost them and their customers billions and could shut off water to homes and businesses.

Big water transfers are common in the West for irrigation and to bring drinking water down from the mountains.

"Would it be wonderful in a perfect world to clean up every bit of this water? Sure, but how much money do we have?" said Scott Campbell, chairman of the water quality task force of the National Water Resources Association, which represents water agencies in 17 Western states. "Do people want to be in a position where they can't take a shower or flush the toilet more than once a day? I don't think so."

But critics say routine water transfers that don't involve serious pollution issues could get a quicker and less expensive general permit. And they offer up horror stories of the destruction that states have done to their waterways when they have had no federal oversight.

One of the worst cases, environmentalists say, is Florida's Lake Okeechobee.

The lake, the second-largest in the nation, has become an algae-choked mess as polluted runoff from sugar cane fields and city streets has been pumped into it for decades.

The South Florida Water Management District has maintained that it does not need a federal permit to pump runoff into the lake. Environmentalists are currently awaiting the outcome of a lawsuit in which they argue that the district is wrong.

Herb Zebuth still remembers that sunny September day 52 years ago when he first laid eyes on the lake.

"It was the biggest lake I'd ever seen in my life," said Zebuth, who was 14 when his family visited the 730-square-mile body. "The water was clear and full of swimmers, and the picnic shelters were overflowing. It was a beautiful place to be."

Today, Zebuth said, the lake is so full of mud and muck that he cannot see the tips of his fingers when he sticks his hand in up to his knuckles. People living in the lakeside communities that depend on it for drinking water worry that it may be too polluted to be safe and are considering abandoning it and trying to use groundwater instead.

"I try not to go to the lake anymore; it's too sad," said Zebuth, 66, who lives about 20 miles east of the lake near Royal Palm Beach.

"It's like seeing an old friend die a slow death, bit by bit, piece by piece," he said.

 

 
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