Republicans Launch Sneak Attack on Clean Water in Budget

Some environmentalists fear that industry lobbyists responsible for weakening the Clean Water Act have successfully convinced the Republican leadership in the U.S. House of Representatives to use this year’s Continuing Resolution budget to further weaken CWA regulations.

The GOP’s CR – the money bill that will keep the government running through September 30 – includes language on page 276, Section 1747, lines 12-18 that would deny funding to the Environmental Protection Agency to implement guidelines needed to enforce the Clean Water Act.

“None of the funds made available by this division or any other Act may be used by the EPA to implement, administer, or enforce a change to a rule or guidance document pertaining to the definition of waters under the jurisdiction of the Federal Water Pollution Control Act.” 

This language was inserted in response to the expected release of guidelines on enforcement of the Clean Water Act by the Office of Management and Budget. The OMB rulemaking is an attempt to restore protections that eroded during the Bush Administration. It is a strategy of last resort by clean water advocates after failing to strengthen the law during the previous, Democratically-controlled Congress.

A handful of recent U.S. Supreme Court decisions limit the authority of the EPA to enforce CWA protections. The most significant of these decisions was Rapanos vs. the United States. In a split decision, the court changed the definition of the type of waters the CWA could protect from waters of the United States to a more narrowly defined “navigable waters.” The 2006 ruling resulted in numerous jurisdictional issues that pro-industry lawyers have used to help their clients avoid CWA permitting regulations regardless of public health or habitat concerns.

New York’s Assistant Commissioner for Water Resources James M. Tierney told The New York Times that the court decision creates a big problem. “There are whole watersheds that feed into New York’s drinking water supply that are, as of now, unprotected.” The EPA says that over 100 million Americans are drinking water that comes from unguarded sources.

Even the Members of Congress cannot use the water fountains on Capitol Hill for fear of contamination – especially lead, according to Natalie Roy, executive director at Clean Water Network.  After the Democrats took control of Congress in 2007 and the White House in 2008, former Rep. Jim Oberstar (D-MN) and former Sen. Russ Feingold (D-WI) introduced legislation to clarify what they said was the original intent of the Clean Water Act – to protect all waters of the United States – (exclusions were made for agriculture and mining) but their efforts never made it into law. “Here is the U.S. Congress, and they can’t pass a bill that would protect the waterways and the headwaters that flow into bigger bodies of water. Common sense calls for them to enforce protections but they are making distinctions because they are being beat up by corporate interests,” Roy said.

Recently, the EPA submitted guidelines to OMB describing which waters should be protected under the CWA in response to inaction on the Hill, a decade of confusing court decisions, and a narrow definition put forth by the Bush White House that forced the EPA to abandon hundreds of pollution investigations and fines. According to a U.S. Congressional investigation, the Bush-era language may have been written with a lawyer-lobbyist representing industry, Virginia Albrecht, to better benefit her clients. “Documents produced to the Committee indicate that the White House significantly weakened guidance issued by the Administration to implement the Supreme Court’s decision in the Rapanos case. These actions appear to have been taken at the behest of J.P. Woodley, the Assistant Secretary of the Army for Civil Works, and Virginia Albrecht, the lobbyist who intervened in the case involving the Santa Cruz River.”