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.”
Documents obtained by environmental groups through the Freedom of Information Act show that Albrecht wrote the White House in the fall of 2006 expressing concern over the proposed rules and they were then “pulled back in the face of objections from lobbyists and lawyers” for industry groups, according to The New York Times.
The new OMB guidelines are expected to affirm a broader view of what waters and wetlands should be protected, thereby forcing industry to obtain permits to pollute or fill them.
Some environmentalists see Albrecht and her law firm, Hunton & Williams, and the Water’s Advocacy Coalition (WAC) – a lobby group made up mainly of their industry clients who would face stiffer regulatory hurdles – involvement in section 1747 in the CR.
“Gutting the EPA’s ability to enforce one of the most successful water protection programs in the history of this country in the name of fiscal responsibility requires a peek beneath the sheets,” said National Wildlife Federation’s Jeff Skelding. “And what we’re likely to find is an age old story: Lobbyists representing powerful polluters in the same bed as lawmakers in the House of Representatives who know a political opportunity when they see one.”
As the fight to replace the original intent of the Clean Water Act escalated in Congress, associations representing this nation’s leading polluters – the National Mining Association, National Association of Manufacturers, National Cattlemen’s Beef Association, Edison Electric Institute, the American Forest & Paper Association and others – created WAC. The purpose of the coalition is to keep Bush era rollbacks of the CWA protections in place so that industry can avoid the permitting process. WAC has been instrumental in turning what was once a unified effort to clean up and protect the nation’s waterways into a highly partisan issue.
Duke University Professor Bill Chameides recently took issue with WAC’s website that implies the coalition advocates for clean water. He said, “So here’s my question. I don’t have a problem if a business group wants to take a stand for business over protecting the environment — it might be shortsighted, but that’s its prerogative. But why does a pro-business organization see the need to advance its agenda by posing as an environmental advocacy group?
Last week The New York Times wrote about some of the “unseemly” services Hunton & Williams and HBGary Federal offered “to undermine adversaries of Bank of America and the U.S. Chamber of Commerce, like doing background research on their critics and then distributing fake documents to embarrass them.”
Environmental advocates see a long fight ahead. “I think people understand the need for clean water,” said Gildo Tori, director of public policy at Ducks Unlimited. “Water is going to be the oil of this century and as water becomes more important and people realize this we will make gains to regulate and manage that water and protect it. But it isn’t going to come without a fight.”
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