Water Quality Watchdogs

When Congress passed the Clean Water Act in 1972, the goal was to force industries to reduce the flow of pollution into the nation’s waterways. Thirty years later, new applications of the law are raising questions. For instance, what happens if the pipe from which the pollution flows is up in the air, attached to a helicopter?

In early October, forest activists in Oregon and Washington won a major victory in that argument. Hoping to halt aerial pesticide spraying designed to kill the native tussock moth, which attacks evergreens (including Christmas trees), activists pointed out that the U.S. Forest Service plan crossed several waterways. If the pesticide—toxic by definition—got into the stream, didn’t the spray nozzle on the helicopter count as a point source of pollution, just like a factory pipe?

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A crop-dusting helicopter lightens its load over Pasco, Washington. Thanks to a U.S. Supreme Court ruling, such spraying near water now requires a special permit.©DOUG WILSON/CORBIS

The 9th U.S. Circuit Court of appeals agreed in 2002, and the Supreme Court in 2003 let that decision stand. So for the West, at least, aerial spraying near streams requires a water-pollution permit. That includes spraying anything that harms water quality on any land—public or private—where there’s water quality to protect.

"This precedent-setting lawsuit allows citizens to contest aerial spraying of any known pollutant that’s harmful to humans and other life forms," says plaintiff Asante Riverwind of the Blue Mountains Biodiversity Project. "Basically it empowers citizens with the rights to protect themselves."

Agencies charged with protecting waterways will have to come up with new rules for a new permitting process, creating one more regulatory hoop for industry.

Mark Morford, a Portland, Oregon-based attorney representing logging interests, says the logic that won in the West failed in the East, setting up a potential conflict the high court may one day need to address. In the meantime, he sees the issue as part of a trend. "The industry views this case as simply part of a series of cases using the Clean Water Act to attack the timber industry," he says.

Also in October, Forest Service Employees for Environmental Ethics sued over aerial spraying of fire retardants in Montana, because the program had not gone through proper public and inter-agency processes to determine the effects on water quality. Outgoing California Governor Gray Davis signed a law allowing state water boards to halt logging that would harm streams listed as having poor water quality—a move affecting 90 percent of waterways along the state’s timber-rich north coast. Also in California, a federal judge ruled that runoff from logging operations can count as a point source of pollution, subject to the same kinds of permits required of factories.

Riverwind, a veteran forest activist, has seen both victories and defeats. "The tussock moths and nature win in this one," he says. "There are moths and butterflies fluttering around that would be dead otherwise. Millions of them."

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