More than half the nation’s waters — ranging from neighborhood creeks and fishing holes to entire drinking water supplies — could lose federal protection if either of two current attacks on the Clean Water Act is successful. Tomorrow, June 10th, a subcommittee of the Senate Environment and Public Works Committee will hold a hearing on the Bush administration’s effort to exclude from federal protection the majority of America’s streams and wetlands. Later this week, three environmental groups will move to intervene in an oil industry lawsuit that could potentially lead to a major reduction in the scope of the Clean Water Act.
Administration Seeks to Weaken Clean Water Protection
At Tuesday’s hearing, witnesses will testify about the need to ensure that the strength of the 30-year old Clean Water Act is not undermined by a sweeping redefinition of the nation’s protected waters. Also to be discussed is bi-partisan legislation reaffirming the protective scope of the Clean Water Act. (Search for bill S 473 at "The Clean Water Authority Restoration Act of 2003".)
In the first assault earlier this year, the U.S. Environmental Protection Agency initiated a process to rewrite Clean Water Act rules to illegally limit the scope of the law. At least 60 percent of our nation’s streams and 20 percent of our wetlands would lose federal protection under the Bush administration proposal. Polluters could then dump wastes into these waterways without a permit, without notifying the public, and without fear of reprisals. Unregulated contamination of these waters from sewage, oil, hazardous chemicals and other pollutants would be disastrous for our drinking water supplies, wildlife habitat, and flood control. (More details on how the Clean Water Act proposal would affect U.S. waters.)
The first phase of this process began on January 15, when the administration announced an "advanced notice of proposed rulemaking" in which it solicited public input on how to narrow the scope of the law by identifying which of the nation’s waters they will no longer protect under the Act. The EPA received more than 137,000 public comments, the vast majority of which opposed the proposal, with resource agencies in 35 states (including 14 with Republican governors) opposing the administration’s plan. (Read a sampling of state comments.)
"When 35 of 37 states — including Texas and Florida — agree with citizens that the Clean Water Act shouldn’t be weakened, you have to wonder whose interests the Bush administration is trying to protect," said Carl Pope, Executive Director of the Sierra Club. "For 30 years, the Clean Water Act has safeguarded and cleaned up our streams, ponds and wetlands. The Bush administration should strengthen clean water protections instead of creating loopholes for polluters."
The current definition of the waters protected by the Clean Water Act has been in place for more than 25 years, and has been repeatedly upheld by Congress and the courts. Just in the last two years, the U.S. Department of Justice has filed briefs in two dozen cases arguing that the existing regulatory definition of "waters of the United States" is not only legally valid, but that the goal of the Clean Water Act — to eliminate pollution at its source — cannot be met without this broad definition. (More information on the Justice Department’s position.)
Oil and Water Don’t Mix
In the second attack, President Bush’s biggest booster — the oil industry — is also getting into the act, filing lawsuits challenging the EPA’s authority to enforce rules that prevent oil spills from contaminating the nation’s waters. Because it does not take much spilled oil to harm the environment, the Clean Water Act outlines measures to prevent "discharges of oil or hazardous substances into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone" (CWA, Section 311). Under the law, industries that store large amounts of oil must undertake spill planning, prevention and cleanup measures.
In their lawsuits, the oil industry is arguing that most of the nation’s waters are not protected under the Clean Water Act. If the industry cases are successful, every polluting industry – not just the oil industry – could win the right to dump pollution directly into creeks and streams, including those that feed directly into major waterways.
"The oil industry believes that the majority of America’s waters, including streams and creeks running through our neighborhoods, do not deserve to be protected from pollution," said Jennifer Kefer, an attorney at Earthjustice. "If that argument wins the day, either in court or under the administration’s proposal, Americans can say goodbye to their favorite swimming holes and fishing spots, and start worrying about their drinking water."
In light of the administration’s present rulemaking proposal, and its penchant for quickly and quietly settling lawsuits on terms favorable to polluting industries, environmentalists are concerned that the government will not aggressively defend the Clean Water Act from the oil industry’s legal challenge. In fact, Bush administration officials are already in closed-door settlement discussions with the oil industry over this lawsuit. Therefore, Earthjustice will file papers later this week to intervene in the oil industry lawsuits on behalf of the Natural Resources Defense Council (NRDC) and Sierra Club.
"Oil and water mix about as well as the Bush administration and environmental protection," said Natural Resources Defense Council attorney Daniel Rosenberg. The White House’s "sue-and-settle" strategy has produced several court settlements between the federal government and industry groups that have relaxed rules to boost logging in national forests, scaled back wildlife habitat protections to allow development, and overturned bans on the use of snowmobiles in national parks. "We’re now forced to step in to defend the Clean Water Act," said Rosenberg, "because the sad truth is we can’t trust the Bush administration to protect our waters from polluters."
(More information on oil spills and the Clean Water Act.)
(Read the Federal Register notice on the Bush administration’s rulemaking proposal.)