Lynn Thorp, Clean Water Action

Remarks to the AWWA Utility Council

April 5, 2011

Hello. I’m Lynn Thorp and I am the National Campaigns Coordinator for Clean Water Action. Clean Water Action was founded during the passage of the Clean Water Act back in 1972. We work in 14 states on a wide range of resource and health issues, with a focus on water issues. Drinking water is an area where we have devoted particular attention. As you know, few of our colleague organizations do this broadly on an on-going basis. I served two terms on the NDWAC and my colleague Cyndi Roper of Michigan also served a term. I have served on a number of Federal Advisory Committees and NDWAC work groups on regulatory issues as have others on our staff. Most recently, I served on the FAC that considered revision of the Total Coliform Rule.

We at Clean Water Action, and many of our colleagues, have familiarized ourselves with the technical, regulatory and communications challenges that affect the drinking water sector. We are coming to you today to ask for your help. Since late 2002, we have been pushing back against aggressive efforts to roll back the water bodies covered by the Clean Water Act. This is not about winning new protections. This is about going back to the bi-partisan consensus that operated for the first 30 years of Clean Water Act implementation. This is about clearing up confusion created by two narrow Supreme Court decisions and really muddled and expansive executive agency actions. It’s also about the exact issues around which we have found common ground – preventing pollution of drinking water sources rather than waiting to address contamination at our water treatment plants.

The basic background is probably familiar to you now. Two rather limited Supreme Court decisions led to confusing Guidance for EPA and Army Corps of Engineers permitters on the ground. One big problem is that each of the Corps’ Districts have their own and differing interpretation of the Guidance. This backdoor maneuver, long on the agenda of mining, development and agricultural interests, has left open to question the whole range of Clean Water Act protections for many of the nation’s water bodies. Which water bodies are these? EPA’s own analysis shows that it includes the intermittent and ephemeral headwater streams as well as wetlands that are critical to protecting drinking water sources – in western states these streams represent from 80 to 90 percent of those states’ water resources.

Over 90% of source water protection areas contain intermittent, ephemeral or headwater streams. Of the 357,404 stream miles that provide water for Public Water Systems, over 58% may be affected by these policies and subject to destructive and polluting activity without those protections. That’s the drinking water for over 117 million people affected – more than one third of the US population. How does this really affect our drinking water sources? Consider that more than 40% of facilities with NPDES permits discharge into these exact small or intermittent streams and wetlands. What does it mean to drinking water sources if permits and thus limits are no longer required for destructive and polluting activity?

What’s the real world result? Confusion, delay and disarray. Critical water bodies are left without protection. Permitters don’t know what to do, which causes delay in fairly routine project permits. It also turns out that the confusion has trickled down to affect enforcement - actions have been delayed or cancelled and these policies have even been raised as a defense by those subject to Clean Water Act enforcement actions and criminal convictions have been vacated by some Courts In all of this mess, underfunded state agencies are bearing the burden of proving that these waters are connected on a case by case basis. There is much more important work they could be doing.

Clean Water Action has been working to reverse these policies since we first got wind of them in late 2002. Our entire community has worked to pass legislation to clarify the original intent of the Clean Water Act to protect all of our nation’s water bodies. We have also worked to demonstrate the problems caused by the “No Protections” policies. Now, EPA has stepped in to try to close this gap in protection and has drafted Guidance, which is now stuck in the White House/OMB process. What we need right now are diverse stakeholder voices in favor of clarifying this confusion. The debate only begins with the draft Guidance, but it won’t begin at all if the draft isn’t released.

While this can become a highly technical issue, there is also a fundamental principle at stake and that’s where we are asking you to weigh in right now. Those of you who know us know that Clean Water Action has devoted a good deal of its communications efforts around drinking water to making the case for upstream pollution prevention policies. We are frankly sick and tired of seeing destructive activities allowed to run rampant, then watching the public concern, regulatory energy and public water system effort that goes into fixing them. When we know that we need to eliminate or control certain chemicals in wide use, when we allow agricultural practices that lead to nitrate and microbial contamination, when we let hydraulic fracturing go forward without even being subject to the Safe Drinking Water Act – we are essentially taxing communities and their public water systems in order to subsidize activity we know is harmful.

That’s the problem at work here. This is not about expanding the scope or increasing regulation of activities under the Clean Water Act. This is not about regulating bird baths either, in case you have heard that argument. This is also not about various other somewhat controversial or at least sticky Clean Water Act implementation issues we have discussed with some of you. The water bodies at stake are sort of like the capillaries in our bodies; they hydrologically important and this matters for our drinking water quality. This is the ultimate integration of the drinking water/water protection efforts and we could use your help so that we can move forward on the issues that really deserve our attention.

Thank you for considering this issue in what we know is limited time on your agenda. The perspective of our Public Water Systems is important in this debate and we welcome your engagement.

Lynn Thorp, National Campaigns Coordinator
lthorp@cleanwater.org
202-895-0420 x. 109