The New York Times reports today that Sen. Ben Cardin of Maryland and others in Congress are pushing a Clean Water Restoration Act to try to fix a big loophole in the federal Clean Water Act. The gap in the current law is the focus of the Times’s story, the latest in the paper’s superb “Toxic Waters” series.

What the article by Charles Duhigg and Janet Roberts examines is how Supreme Court decisions in 2001 and 2006 have significantly limited the reach of the Environmental Protection Agency’s crack down on known and water pollution sources. As the writers explain, the key question is what Congress intended when it  used the phrase “the discharge of pollutants into the navigable waters” in the 1972 law. In short, the loophole created by the recent rulings has effectively thwarted EPA regulation of sources of pollution to tributaries of rivers, on the basis that the immediate sources of the pollution (i.e. a ditch, or a stream) are not “navigable.”

“The consequences of the Supreme Court decisions are stark,” the Times reports. “In drier states, some polluters say the act no longer applies to them and are therefore refusing to renew or apply for permits, making it impossible to monitor what they are dumping, say officials.

“Cannon Air Force Base near Clovis, N.M., for instance, recently informed E.P.A. officials that it no longer considered itself subject to the act. It dumps wastewater — containing bacteria and human sewage — into a lake on the base.

“More than 200 oil spill cases were delayed as of 2008, according to a memorandum written by an E.P.A. official and collected by Congressional investigators.”

The Times article also looks at how industry interest groups like the American Farm Bureau Federation are relying upon scare tactics, and Glenn Beck-style messaging to try to thwart the new legislation.

–CFJ