Clean water advocates find legal gold in desert stream

By Karl Blankenship

01/20/2009

Advocates for clean waters, from the Chesapeake Bay to mountain streams, may hit the mother lode of legal gold as the result of a battle over pollution in a desert stream.

At first glance the stream, Pinto Creek in Arizona, seems to have little in common with rivers and streams in the East - parts of it are dry much of the year. But, like more than 40 percent of the nation's waterways, Pinto Creek is polluted, the legacy of a century of copper mining.

Nonetheless, the Carlota Copper Company is developing a 3,000-acre open pit mine beside the creek, and sought a permit to allow the mine's stormwater to flow into the creek.

The Environmental Protection Agency granted the permit, but opponents objected, saying the EPA could not allow a discharge containing copper into a creek that was already, in Clean Water Act terminology, "impaired" because it had too much copper. They noted that agency regulations forbid new discharges that "cause or contribute" to the impairment of a waterway.

In response, the EPA revised the permit to require Carlota to offset new copper discharges by controlling pollution from an abandoned mine upstream. That permit was also challenged, but was upheld by the EPA's Environmental Appeals Board which said it would not "cause or contribute" to the impairment of Pinto Creek because new pollution would be more than offset by reductions at the upstream mine.

The Friends of Pinto Creek took the EPA to court. In October 2007, the U.S. Ninth Circuit Court of Appeals ruled that just making the water less dirty is not enough if the creek remained impaired. The goal of the Clean Water Act, the court said, "is not simply to show a lessening of pollution, but to show how the water quality standard will be met if Carlota is allowed to discharge pollutants into the impaired waters."

The court said regulators had to show how an impaired waterway would be cleaned up before a permit could be issued for any new discharge. Polluters would also need a schedule to reduce pollution, and if their actions were not sufficient, other, unregulated sources of pollution, such as runoff, would have to be reduced, the court said.

Carlota appealed to the Supreme Court, which this month chose not to hear the case. By taking a pass, the Supreme Court left the Ninth Circuit's decision intact, meaning it is the law in the 11 western states in the circuit. In the rest of the country it may serve as a precedent to challenge new discharge permits from sewer plants, construction sites, stormwater systems, and large animal feedlots.

Environmentalists and frustrated government officials have discussed the ramifications of using the Pinto Creek decision to put teeth into the lagging Chesapeake Bay cleanup. They call it the "nuclear option."

If applied in the Chesapeake Bay watershed, the Pinto Creek ruling might prohibit any new permits that add nutrients or sediment into waterways until the EPA and the states develop a plan and timetable to guide the cleanup.

The states already have cleanup plans called tributary strategies. But these plans lack a critical element required by the Ninth Circuit -- a realistic implementation schedule showing when and how the cleanup will be completed.

Critics have called the decision a "de facto moratorium" on new discharges into impaired waters. However, Roger Flynn, an attorney handling the case for the Friends of Pinto Creek, disagrees. Flynn says the ruling's meaning is clear: "If you want to pollute more into (an impaired) waterway, come up with a plan to help the stream."

The Clean Air Act shows the threat of severe sanctions can spur actions that states otherwise may not take. Under the act, states face a moratorium on new air permits and a loss of federal highway dollars if they fail to develop and implement realistic plans to meet air quality goals - a threat tough enough to spur legislatures to stiffen regulations. That's why tailpipe emission checks are required in many areas.

Likewise, the Pinto Creek decision could force states to get tough on water pollution, including pollution from farms and other sources of runoff, or face a permit moratorium.

The EPA has said that the Ninth Circuit misinterpreted its regulations and hinted that it could resolve the issue by tweaking them. But the clock ran out on the Bush administration, leaving it to the incoming Obama administration to decide how to react to the Pinto Creek ruling.

Potentially, the decision gives the EPA a powerful tool to fulfill the promise to make the nation's waters "fishable and swimmable," a promise made in the original Clean Water Act 37 years ago. The question is whether the new Obama administration will choose to use it.