VOLUME 6 NUMBER 7 - JUNE 10, 2001

WATER, WATER, EVERYWHERE....

In the beginning of the current article we quote liberally from ADEM documents, realizing that some readers may get lost in the bureaucratic language. Mid article is a section written by Dave Russell from Crestview Florida. He has first hand experience in dealing with issues that are Facing Alabama. We hope that the complexity of the issue will be made simple through his words.

First a little background on ADEM. ADEM was created by "The Alabama Environmental Management Act (Title 22, Section 22-22A-I et seq., Code of Alabama 1975), which "empowers ADEM to issue orders, notices of violation, certifications, or permits; and to enforce provisions of the Act and the Alabama Water Pollution Control Act through civil actions or administrative orders, including orders with penalties. The Environmental Management Act also authorizes the Environmental Management Commission to hear appeals and to adopt rules and regulations." Alabama Nonpoint Source Management Program page 2 Version 10-01-00 Part I

The Environmental Management Commission "oversight authority consist of seven members of the following disciplines: a licensed physician, a professional engineer, an attorney, a chemist, a member certified by the National Water Well Association, a biologist or ecologist, and a citizen of the state. The EMC provides oversight to the Alabama Department of Environmental Management (ADEM)." Alabama Nonpoint Source Management Program page 5 Version 10-01-00 Part I

"The AWPCA (Alabama Water Pollution Control Act) declares any and all pollution to be a public nuisance, and gives the Alabama Department of Environmental Management the authority and responsibility to implement the Act by:

"4. Requiring that anyone discharging pollutants or desiring to discharge pollutants into waters of the state to apply for and obtain a permit to discharge and to maintain and provide to the Department certain records about the discharge. Anyone who willfully or with gross negligence violates the AWPCA is subject to a criminal penalty of $2,500 to $25,000 per day of violation or imprisonment for not more that one year, or both. A second conviction carries a fine of $5,000 to $50,000 per day of violation and/or imprisonment of 1 or 2 years."

Alabama Code 22-22-9(1)(4) states that: "Any and all pollution is hereby declared to be a public nuisance and, if it creates, or is about to create, a health hazard, shall be subject to immediate control of the commission (ADEM) by order or injunction. Any order issued under this subsection shall be deemed to be final and conclusive for the purposes of this chapter."

'Any and all pollution' includes many things that the average person would never consider, for instance: the bodily functions of the cows grazing in the pasture, tire dust along the road side, fertilizer spread on the lawn, lawn clippings not properly composted, a home along a river bank that allows sewage to be seep into the stream, allowing rainwater to run across you vacant lot is now allowed by permit only (check your property tax notice for a 'Storm Water Runoff Fee'), just to name a few.

Indeed, the definition of pollution, under ADEM criteria, covers everything. Following their rules and regulations will virtually establish state control over every action you may wish to take. This is NOT about pollution, it's about control over the people!

"a. State waters shall be free from substances attributable to sewage, industrial wastes or other wastes that will settle to form bottom deposits which are unsightly, putrescent or interfere directly or indirectly with any classified waters use." Alabama Nonpoint Source Management Program page 3 Version 10-01-00 Part I

'Classified waters' in this case refers to three categories. All water in the State fall under one of the three categories-Tier 1, 2 & 3.

[editor's comment - The definition of tier 1 is as ambiguous as a bureaucrat can make it. One aspect is clear: if water is not covered by Tier 2 & 3 it is covered by Tier 1. Read the 2 quotes defining Tier 1 and decide for yourself.]

"Tier 1: Applies to all waters and provides a baseline level of protection. It requires that existing uses of a waterbody (even if not designated in the State/Tribal water quality standards), and the water quality necessary to protect the existing uses, be maintained and protected [40 CFR 131.12(a)(1)]". Alabama Nonpoint Source Management Program page 11 Version 10-01-00 Part I

Tier 1 from the EPA Federal register notice:

"All waterbodies are subject to Tier 1 protection. Generally, Tier 1 waterbodies do not exceed section 101(a)(2) goals or do not have additional assimilative capacity to receive additional amounts of a pollutant without exceeding the existing use. Tier 1 waterbodies are impaired and must be listed if the designated use is not being attained. In some cases, Tier 1 waterbodies may be listed if existing uses have been identified pursuant to 40 CFR 131.3. An existing use is a use that has actually occurred since November 28, 1975 (when the water quality standards regulation was published) or where water quality is suitable to allow such a use to occur. States, Territories and authorized Tribes must incorporate existing uses into their designated uses pursuant to 40 CFR 131.10(i). The water quality standards regulation provides, however, that a demonstration of an existing use different than a designated use may be made to the State, Territory or authorized Tribe. In the case that such a demonstration is made by a member of the public, a waterbody must be listed if the existing use is more protective than the designated use. EPA expects that most Tier 1 waterbodies identified as impaired and listed on the section 303(d) list will be listed on the basis of designated uses." (http://www.epa.gov/fedrgstr/EPA-WATER/1999/August/Day-23/w21416.htm)

Tier 2

'Tier 2 waterbodies are waterbodies for which existing water quality is better than necessary to support propagation of fish, shellfish, wildlife and recreation." (See above link to website)

Tier 3

"Tier 3: This is the highest level of protection and applies to waters identified by the State as outstanding national resource waters (ONRWs) or waters that exhibit and exceptional ecological significance whose characteristics are not easily described by traditional parameters such as wetlands and estuaries. Water quality in ONRWs must be maintained and protected...."Alabama Nonpoint Source Management Program page 11 Version 10-01-00 Part I

[Ed. note: we find ourselves in the middle of some high priced environmental lawyer double-speak. Our interpretation will be offered at the end of this section.]

"In addition, Whenever the commission determines that any person is violating, or is about to violate, any of the provisions of this chapter, or any rule or regulation or order or permit…may notify such person of such determination... within such time as may be specified in such notice, such person shall file with the commission a full report showing steps that have been taken and are being taken to control such pollution. Thereupon, the commission may make such orders as in its opinion are deemed reasonable." (Alabama Administrative Code 22-22-9(e)).

"Enforceable authorities include orders, injunctions, civil actions for damages for pollution including reasonable costs to prevent, minimize, or clean up any damage; costs for restocking of killed fish; civil penalties of $100 to $25,000 per day; and criminal penalties for willful violation or grossly negligent violations [Alabama Administrative Code 22-22-9(i) through (n); 22-22A-5(17) to (19); and 22-22-14.]" Alabama Nonpoint Source Management Program page 3 Version 10-01-00 Part I

The State will determine what standard your water must meet, the time frame will be set by an appointed commission. Failure to comply will be heard in their tribunal. Fines will be set at their discretion. If you wish to claim that your rights have been violated, you may be labeled a 'bad actor.' Read the next quote:

"Consistent and uniformly applied state and federal regulations to target 'bad actors' and preventing 'back-sliding' will usually bolster voluntary compliance and management measure implementation. However, the ADEM is limited by resources and staff and generally relies on citizen complaints to target potential violations. The Code of Alabama (1975) provides ADEM authority under which it can require clean-up when discharges and other activities contribute to water quality degradation. If the voluntary approach [i.e. the carrot] fails, the 'stick' [i.e. compliance inspections and enforcement] is available to make sure problems are appropriately addressed."

"The number of citizen complaints received by ADEM and other agencies is not indicative of the number of environmental problems that may exist, nor whether the combined regulatory/voluntary approach is successful. Measurable success ultimately depends on how well stakeholders and partnerships capitalize on the complimentary effect that can be achieved using a balanced regulatory and voluntary approach. Success of the Alabama Nonpoint Source Management Program will be measured by long-term river basin and watershed specific improvements based on qualitative and quantitative assessments." Alabama Nonpoint Source Management Program page 21 Version 10-01-00 Part I

When you read the last line in the quote from Dave Russell, 'They are not your friends. They are your true enemies.', remember that any individual farmer or city dweller could be the next 'bad actor'.

Everyone should be aware of these partnerships. They are preplanned, membership is selective and the agenda is preordained. I have served in such a PARTNERSHIP to recover the Florida Panther, and I can tell you local input is the last thing they want. Any suggestion or idea that doesn't fit into their plan is belittled, made to appear insignificant, and ultimately discarded in the CONSENSUS building process.

Another dangerous aspect of these watershed projects is that they are following the procedures set forth in the American Heritage Rivers initiative. This process was initiated by President Clinton by Presidential Executive Order when he designated 14 rivers under this program in late 1998. There were more than 70 rivers submitted, but he only nominated 14. Yet the environmental groups and their fellow travelers in the local and state government agencies are using the same guidelines that would have applied had they been selected. The basic concept is that a river is designated with a lot of hoopla and claims of severe degradation and there is going to be lots of government money coming into the community to clean up the river. Politicians can't resist the lure of this FREE MONEY. What really happens is that not just the river falls under their control but the ENTIRE WATERSHED, all its streams and tributaries. The entire area is put under the control of 13 federal agencies and a RIVER NAVIGATOR is appointed to pull all the pieces together. Ultimately, local cities and counties are frozen out of the decisions making process, and out of the funding chain of command. These groups soon establish direct contact with state and federal sources of funds, begin developing their own budgets and applying for grants. Property owners will ultimately have to apply for a permit from this River Navigator who will process the request through the 13 federal agencies that have decisions making authority. Some believe this is the first step towards NATIONAL ZONING, leaving cities and counties, and even states out of the equation. These groups will be dominated by STAKEHOLDERS, usually environmental groups such as Sierra Club, Audubon, and Nature Conservancy. The local officials become the ENFORCERS, using their law making authority to pass and enforce the rules and regulations dreamed up by these groups.

Incidentally, the River Navigator is a pretty good job to have. The one for the St. Johns River here in Florida draws $100,000 per year plus expenses.

People should be warned and cautioned to move very slowly with support of these groups. They are not your friends. They are your true enemies.

Dave Russell, CCPR
Crestview, Fl

Alabama is approaching the same incroachment that the west has been experiencing for some time. The state is divided into fourteen 'river basin watersheds'. Each 'Basin' has a 'committee'. The names of the members can be accessed from ADEMs web address: http://www.adem.state.al.us/EnviroProtect/WatershedMan/watman/cleanwat/manplan.htm - this link no longer works 6/22/05. A map of Alabama's watershed can be viewed at ADEMs web address: (http://www.adem.state.al.us/EnviroProtect/WatershedMan/watman/documents/watershed/watershedproj.pdf).

The Black Warrior River Basin Committee, which will meet in Cullman June 6, 2001, at 2: PM in the Regional Medial Center's Weiss Room, has been granted a $600,000.00 grant from the EPA and an additional $125,000+ from other sources. It is expected that the fourteen committees will funnel government grant money into the local areas that will carry out the EPA/UN agenda in each watershed, similar to the way in which MPO (metropolitan Planning Organizations) operate in the urban areas. The enticement of so-called government grant money is irresistible to the average politician.

'Watershed Restoration' is a term that will become increasingly familiar. The meaning is usually left out of discussions. You will find a definition in the Stream Corridor Restoration: Principles, Processes, and Practices, published by the Federal Interagency Stream Restoration Working Group (FISRWG)(15 Federal agencies of the US gov't). GPO Item No. 0120-A; SuDocs No. A 57.6/2:EN3/PT.653. ISBN-0-934213-59-3. Originally published October, 1998. Revised October, 2000.

Simply stated, a restored area will, to the extent possible, prevent human intrusion into the area. How much of Alabama is already mapped for 'restoration' is not known. Slowing the encroachment of this godless dogma is the responsibility of each reader. YOU must join in the effort.