Clean Water Enforcement: Sharp Eyes Reveal Dull Tools

Chairmen Henry Waxman and James Oberstar have been busy sharpening water protection tools on the Congressional whetstone. In a memorandum to President-elect Obama, Waxman, chair of the House Oversight and Government Reform Committee, and Oberstar, chair of the House Committee on Transportation and Infrastructure, detail serious deterioration of Clean Water Act (CWA) enforcement. The investigation found nearly 500 enforcement cases, brought to protect the nation’s waters, that have been negatively affected as a result of a divided 2006 Supreme Court ruling and subsequent Bush administration guidance. The memo is here.

Among key findings, the memo concluded that:

• The Supreme Court’s 2006 decision in Rapanos v. United States and resulting EPA guidance for regional EPA offices to implement the decision have caused a decline in enforcing hundreds of CWA violations, contrary to sworn statements made by Bush Administration officials that the effects on CWA were “slight, not significant”
• The decline in enforcement cases includes 300 cases in which the EPA consciously decided to not pursue violations, 26 cases in which the civil penalty was reduced, and 80 cases that were significantly delayed; and
• Because of the difficulties in implementing the Rapanos decision and subsequent guidance, fewer financial and staff resources are available to pursue new enforcement actions that prevent water pollution.

The Supreme Court’s 2006 plurality decision in Rapanos focused on which wetlands were covered by the CWA. With no clear majority opinion, most federal courts have adopted the jurisdictional test in Justice Anthony Kennedy’s opinion. This test requires a “significant nexus” between navigable waters and wetlands. Where this nexus or connection exists, the wetlands fall under the jurisdiction of the CWA. However, this test largely ignores science of hydrology and has been disastrously difficult to apply.

Following the Court’s decision, the EPA and the Army Corps of Engineers proposed initial guidelines that would have created broad protection for wetlands by making development activities subject to stricter permit requirements. However, developers’ associations and the agriculture industry protested, taking their complaints to the White House. After review by the White House, the final guidance issued in June 2007 ultimately chose a narrow interpretation of the Supreme Court opinion that diminishes protection for wetlands. This guidance requires a time- and resource-intensive approach to determine the status of a wetland. As a result, the guidance diminishes protection for wetlands by narrowing the coverage of the CWA and further straining limited resources by mandating a case-by-case determination of wetland status.

The investigation reinforces problems identified by CPR Member Scholar Bill Andreen and Policy Analyst Shana Jones in Clean Water Act: A Blueprint for Reform. The Blueprint notes that, despite a robust toolset of administrative, civil, and criminal penalties, “even the strongest tools are rendered ineffective by disuse.” In addition to the deterioration of CWA enforcement, the Blueprint identified enforcement obstacles such as heavy evidentiary burdens in citizen suits and immunity from civil penalties for federal facilities.

Environmental and water advocacy groups welcomed the results of the investigation. Ed Hopkins, Director of the Sierra Club's Environmental Quality Program, said:

The findings released today by Chairmen Waxman and Oberstar are dramatic proof that Congress should pass the Clean Water Restoration Act to re-establish the Clean Water Act's longstanding protections. We urge Congress to act early next year.

Ever since the Rapanos decision, CWA enforcement tools have been cast aside, growing dull with disuse. Now it is a relief to hear the buzz of the congressional whetstone cranking up, ready again to sharpen the tools most needed to protect the nation’s waters.