Polluters redefine the Clean Water Act and endanger our lakes, rivers and streams

Letting polluters off the hook in Alabama

Avondale Creek is a stream in north Birmingham, Alabama, that feeds into Bayview Lake. On the other side of the lake, Locust Fork flows for 20 miles before it reaches the Black Warrior River.

In June, 2005–after one of the longest environmental crimes trials in history–a jury found McWane, Inc., a pipe manufacturer, and company managers guilty of knowingly discharging oil, lead, zinc and grease into Avondale Creek in violation of the Clean Water Act. The district court sentenced McWane to 60 months probation and a fine of $5 million.

The U.S. Department of Justice said the convictions stemmed from “systematic discharges of process waste water into a creek and efforts by company officials to hide these discharges from state and federal regulators.” Health, safety and pollution violations at McWane facilities across the U.S. were serious enough to be profiled in a PBS Frontline documentary, “A Dangerous Business.”

Later these convictions were overturned on appeal because of a recent Supreme Court case that has weakened the Clean Water Act – the 2006 split decision Rapanos v. United States. Using this ruling, the McWane defendants challenged their conviction, claiming that Avondale Creek was not protected by the Clean Water Act.

For over 30 years, the Clean Water Act protected Avondale Creek and countless other waters from pollution. Now, the courts says that the government must show evidence of the effects of Avondale Creek on the Black Warrior River to protect the creek, a long and resource-intensive process never before required by the Clean Water Act.

Minnesota Lakes Ruled Not Worth Protecting

Boyer Lake is a 310-acre lake in Becker County, Minnesota. According to Minnesota’s Department of Natural Resources (DNR), “northern pike, largemouth bass, walleye and panfish are all popular targets of anglers on this lake,” and the DNR stocks the lake with walleye (including, in 2005, with over 400,000 walleye fry). A public boat ramp built on the northwest shore and a boat access from the highway let boaters into Boyer Lake. The DNR website touts, “Boyer is a relatively scenic lake in prairie country with several small islands, bays and peninsulas.”

Bah Lakes, a 70-acre lake, is located about 75 miles northwest of Minneapolis on the border between Grant and Douglas counties. The lake is usually art a depth of ten feet of water. Canoeing, as well as bird-watching, cross-country skiing, hiking, hunting and snow shoeing are some of the activities enjoyed in, on, and around the lake. There is public access to the lake from County Road 19. Ducks Unlimited is working to implement a conservation easement to preserve habitat around Bah Lakes. Several hotels, resorts and campgrounds are nearby.

Despite the use of these waters by boaters, the local office of the Corps of Engineers initially concluded that each of these lakes is an “isolated, non-jurisdictional water with no substantial connection to interstate (or foreign) commerce.” This would have removed Clean Water Act protection for these two lakes.

Oil spills don’t matter when the creek isn’t protected by the Clean Water Act

On August 24, 2000, a pipeline operated by the Chevron Oil Pipeline Company failed, spilling 126,000 gallons of oil into an unnamed, west Texas creek. The creek was dry at the time–almost 60% of US streams are dry for part of the year.

But even dry creeks need Clean Water Act protections. They are part of a larger watershed, and when water flows, they carry pollutants to downstream waters. In this case, the unnamed creek runs into Ennis Creek, which eventually joins the Brazos River eighty-two miles downstream.

These creeks are not dry all the time. “During times of water flow, there is an unbroken surface water tributary connection from the unnamed tributary [where the oil spill occurred]…into the Brazos River,” according to the Justice Department.

For over 30 years, the Clean Water Act protected tributaries like this one and countless other waters from oil spills and other pollution. This protection is essential to meet the basic Clean Water Act goal of restoring and maintaining our nation’s waters. Yet in this case, a federal trial court in Texas ruled that because no water was flowing at the time of the spill, the Clean Water Act did not apply.

One of New Mexico’s largest watersheds NOT protected

The Corps of Engineers has determined that the basin containing the Rio Tularosa, pictured above, is not protected because it is a “closed” basin. Yet, this massive watershed stretches across six counties and is one of the largest watersheds in south-central New Mexico.