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Center Scholar Dave Owen Defends the Clean Water Act Before Congress

Public Protections Defending Safeguards Water

Yesterday, conservatives in the U.S. House of Representatives began their assault on the Clean Water Act with a hearing aimed at attacking the Biden administration’s rule to more clearly define the law’s scope of protections. Center for Progressive Reform Member Scholar Dave Owen, a law professor at the University of California College of the Law in San Francisco, was the only witness invited to fend off these dangerous attacks.

For the last several decades, conservative lawmakers and their industry allies have pursued a coordinated strategy aimed at reducing the reach of the Clean Water Act’s protections as much as possible (which, in turn, would give recalcitrant states unchecked power to allow more and more water sources to be exploited and polluted). In response, progressives have pushed for a clear regulatory definition that is grounded in science and advances the law’s full protective objectives.

This fight has resulted two sets of confused opinions from the U.S. Supreme Court and has prompted a series of competing rules stretching back to the George W. Bush administration. The U.S. Environmental Protection Agency, at the direction of President Joe Biden, has sought once more to clear up this issue with a final rule it issued in December. As the agency explains:

This rule establishes a durable definition of ‘waters of the United States’ that is grounded in the authority provided by Congress in the Clean Water Act, the best available science, and extensive implementation experience stewarding the nation’s waters. The rule returns to a reasonable and familiar framework founded on the pre-2015 definition with updates to reflect existing Supreme Court decisions, the latest science, and the agencies’ technical expertise. It establishes limits that appropriately draw the boundary of waters subject to federal protection.

Conservative Attacks

Predictably, the rule sparked strong conservative attacks, including yesterday’s hearing, which is likely to be the first of many on the rule. Conservative members of Congress have already initiated a Congressional Review Act resolution to repeal the rule. Using these hearings as a springboard, they will likely explore other avenues of blocking the rule, either through traditional legislation or even appropriations riders.

As Owen testified, however, the rule is “necessary to protect water quality.”

Owen began his testimony explaining why the act is so important and why Congress must continue to support it. “Around the nation, rivers that once were open sewers now are treasured community resources, even as this nation has experienced sustained economic growth,” he testified.

The act’s work is not yet finished, he continued. “Protecting these achievements, and fulfilling the Clean Water Act’s promise, will require continued support from this Congress, as well as continued implementation efforts by the United States Army Corps of Engineers and the U.S. Environmental Protection Agency,” Owen said in his written testimony.

In defending the Biden administration’s Waters of the United States rule, Owen made four broad points. The rule, he said:

  1. Is consistent with the act’s text and with decades of nearly uninterrupted agency interpretations and practice.

  2. Improves upon past efforts to define the act’s scope by appropriately accounting for the latest developments in hydrologic science.

  3. Is necessary to support the long-term health of our economy.

  4. Fully aligns with our constitutional system of cooperative federalism and respects state’s proper role in protecting natural resources.

Owen concluded by declaring that the new regulations should be “welcomed by this Congress.” He makes a compelling argument. Let’s hope congressional conservatives are listening.

Public Protections Defending Safeguards Water

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