New Report: Clean Water Protections Are Failing

A report released yesterday by Chairmen Henry Waxman and James Oberstar documents the extent of the damage to our waters, highlighting hundreds of Clean Water Act enforcement cases that have been dropped or downgraded by the Environmental Protection Agency (EPA) as a result of divided Supreme Court rulings and unclear Bush administration guidance.

In response, Ed Hopkins, Director of the Sierra Club’s Environmental Quality Program, issued the following statement.

"All Americans deserve clean water. The Sierra Club applauds Chairman Waxman and Chairman Oberstar for their investigation of the EPA’s failures to protect our waters under the Clean Water Act.  Their findings clearly show that policies the Bush administration adopted following the 2006 Supreme Court Rapanos decision are undermining pollution protections for our wetlands, rivers and streams.  Unsurprisingly, polluters and developers played a key role in shaping this policy which has left the EPA unable to ensure the safety of our nation’s waters.

"It is absolutely shocking that more than 35 years after passage of the Clean Water Act the EPA finds itself unable to take action to protect our waters against oil spills, illegal waste discharges and other harmful pollution.  Supreme Court decisions and Bush administration policies have truly muddied the waters.  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."

Background

The Clean Water Act, enacted in 1972, gave Congress the power to regulate discharge of pollutants into waters of the United States. The Rapanos Supreme Court case challenged the broad interpretation of the Clean Water Act, which protects not only lakes and rivers but the tributaries and wetlands that feed into those bodies of water.

The closely divided Rapanos decision, which required protection decisions to be made on a case by case basis, followed by unclear Bush administration policy has hampered efforts to enforce the Clean Water Act, according to the EPA's top enforcement officer. In a leaked March 4, 2008 memo, EPA Assistant Administrator of the Office for Enforcement and Compliance Assistance, Granta Y. Nakayama, told Office of Water Assistant Administrator Benjamin Grumbles that "a significant portion of the CWA [Clean Water Act] enforcement docket has been adversely affected" following the Rapanos decision and  policy guidance.

From July 2006 through December 2007, the confusion about which waters fall within the scope of the Clean Water Act "negatively affected approximately 500 enforcement cases," Nakayama wrote. These cases include oil spills, pollution discharges and wetlands destruction. According to the memo, EPA dropped 305 enforcement cases, most of which involved violations of Oil Pollution Act programs, and lowered the enforcement priority of 147 cases.

This report delves further into these failures to enforce the Clean Water Act. A full copy of the report can be found here.