As Congress Scrutinizes Clean Water Enforcement, Ambiguity About the Law Looms

Nearly 37 years since it was signed into law, the Clean Water Act is at its most vulnerable point. Muddied Supreme Court rulings and a weak interpretation by the previous administration have left headwaters, rivers, wetlands, lakes and streams at risk of completely losing federal protections. Rivers catching on fire inspired the passage of the Clean Water Act 37 years ago this Sunday, but now a new threat looms. A coordinated effort by polluters to dismantle clean water protections must inspire Congress anew to strengthen this law and fix what has been broken.

On October 15, at 10 am Eastern, Chairman James L. Oberstar (D-MN 8th) will hold a hearing in the House of Representatives Transportation and Infrastructure Committee to investigate Clean Water Act enforcement failures of federal and state agencies responsible for protecting our nation’s waters. The committee will also consider the future of clean water protections and how the Obama administration plans to keep our waters clean. EPA Administrator Lisa Jackson is scheduled to testify.

But while enforcing the Clean Water Act remains a great concern for millions of Americans who rely on clean water for drinking, swimming, fishing, boating and recreating, what really is at stake involves judicial activism at the nation’s highest court, which put clean water protections in doubt. Upsetting nearly three decades of settled law, Supreme Court decisions in 2001 and 2006 — cases commonly referred to as SWANCC and Rapanos — created confusion about which waters are protected under the Clean Water Act and limited the law’s application.

Internal EPA documents show that between July 2006 and December 2007, confusion about Clean Water Act jurisdiction resulting from these decisions adversely affected approximately 500 of EPA’s Clean Water Act enforcement cases — almost 40 percent of the agency’s annual docket. In other words, the EPA has dropped hundreds of enforcement cases of alleged violations of the Clean Water Act, lowered the priority of still more cases, and has been forced to fight off attempts to evade enforcement altogether because of muddled jurisdiction issues.

An estimated 59 percent of the nation’s streams and roughly 20 million acres of wetlands in the U.S. could lose Clean Water Act protections as a result of the confusion created by the SWANCC and Rapanos decisions, unless the law is clarified. These water resources supply drinking water to more than 110 million Americans. More than 40% of facilities nationwide (14,800) with Clean Water Act discharge permits discharge into small or intermittent streams, and already several such facilities are arguing that because of Rapanos and SWANCC, they no longer require permits which impose limits on their pollution levels. Enforcing permit pollution limits against these facilities could be made more difficult if the scope of the law remains muddied.

The bottom line: the Clean Water Act cannot be enforced effectively until this problem is fixed. Congress must restore the Clean Water Act’s historic broad scope and ensure the EPA can protect waters from oil spills, waste discharges and wetlands destruction. The Obama administration supports this approach. The Senate Environment and Public Works Committee passed a compromise version of legislation in June that would return the jurisdiction of the Clean Water Act to exactly what it was before the Supreme Court decisions.

This Thursday’s hearing will open up the internal machinations of the EPA and show the agency and the state agencies it oversees were sorely misguided in recent clean water protections. As we look towards the future, we hope that clean water enforcement will once again become a priority to those agencies responsible for protecting our rivers, lakes, streams and wetlands. For this to happen, Congress must recognize the flawed status of one of our nation’s strongest environmental laws. The Transportation and Infrastructure Committee must move quickly to restore the scope and intent of the Clean Water Act.