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Food and Water Watch and Friends of the Earth sued the EPA in 2012, saying it doesn’t have authority under the Clean Water Act to allow water pollution trading because trading enables point sources to violate their discharge permits and emit more pollutants then they’re allowed under the law. The suit was dismissed in December — because, the court said, the groups couldn’t prove the EPA caused “injury” — and now the groups are turning elsewhere.
“We don’t think EPA has the authority under the Clean Water Act to allow trading,” said Food and Water Watch’s Michele Merkel at a briefing for Hill staffers in January. “We need Congress’ help.”
Edwards said in a statement that Congress needs to become educated about how the Clean Water Act is being undermined because of trading, and take steps to end it. Congress could also defund USDA support of trading programs and members of Congress could speak out more or call for hearings, he said.
But the concept of trading appears to be catching on and neither the courts nor regulators seem inclined to impede it. In 2003 the EPA issued guidance for water trading, and in 2010 President Barack Obama issued an executive order calling for the restoration of the Chesapeake, in part by developing markets for water trading. “The new limits on nutrients and sediment to be established in the TMDL will help establish demand for projects that reduce these pollutants and make a market for these reductions viable,” the order read.
Still, only a few farmers actually have participated in water-trading programs so far.
“There’s been way more debate, discussion, policy papers — you name it — than trading,” McGee said. “But the reality is we’re going to add new loads, so we’re going to need practices to offset them.”
As an environmental group, McGee conceded that the foundation’s position might seem contradictory. “It’s not that we’re pushing it,” she said. “It’s that we think it’s inevitable.”