Water Activists File Flood Of Suits Environmentalists Forcing States To Enforce Provision Of Federal Act

A wave of lawsuits brought by environmentalists is compelling state and federal authorities to enforce a long-dormant provision of the Clean Water Act, opening a new front in the struggle over pollution and requiring the government to make new assessments of whether water standards are being met.

Environmental advocates, in lawsuits in about half the states, are demanding that regulators move from controlling individual points of pollution - like factories or waste-water treatment plants - to improving the overall quality of larger watersheds.

This river-by-river, stream-by-stream approach on pollution may be a powerful legal tool for environmental advocates to influence many kinds of economic activity - from logging in national forests to spreading manure on cornfields - that were not rigidly controlled before.

“This is like the Tet offensive,” said Oliver Houck, director of the environmental law program at Tulane University’s law school, referring to the 1968 uprising by Communist forces that shocked the American military establishment during the Vietnam War. “All the old assumptions are challenged.”

In a federal court case in Manhattan, plaintiffs are demanding that the Environmental Protection Agency force the state to set pollution limits in upstate watersheds at levels strict enough to protect New York City’s drinking water. The plaintiffs are also demanding that citizens’ groups be allowed to participate in setting pollution limits.

Similar lawsuits involving 13 other states are on the federal dockets, according to the EPA’s count, and more suits are expected in the months ahead.

Already, federal courts have ordered the EPA to establish pollution limits in nine states - Alaska, Arizona, parts of California, Delaware, Georgia, New Mexico, Oregon, Pennsylvania, and West Virginia - if the states themselves do not impose acceptable ones. All but two of those court orders were imposed last year. In only a handful of states have environmental litigants lost in the courts.

The 1972 Clean Water Act required states to issue permits telling polluters what technologies to use to keep from fouling the water at specific discharge points.

But in a provision that has routinely been disregarded, the law also told states to measure the local water quality more broadly in order to determine if the system of permits was working, and to impose across-the-board limits on pollution from all sources until clean water standards were actually met.

But 25 years later, many watersheds are still polluted, often by runoff from farms, cities and enterprises that are not required to have these pollution permits. In about two dozen states, plaintiffs have now sought to force state or federal authorities to list these polluted waters accurately, and to clean them up.

The environmental advocates have embarked upon a new legal strategy in which they ask the federal courts to force the EPA to intervene where state governments have not acted to meet broader pollution standards.

In some states, the courts have ordered profound changes. Last year, Judge Marvin Shoob of the U.S. District Court in Atlanta imposed strict cleanup schedules on Georgia and on federal environmental agencies. He threatened that unless they complied, no new pollution permits could be issued on streams where the new limits were not being enforced.