Committee on Environment and Public Works
Subcommittee on Fisheries, Wildlife, and Water
Hearing on the Status of Federal Jurisdiction Over “Navigable Waters” Under the Clean Water Act
June 10, 2003
Mr. Chairman and Senator Graham, thank you for holding this hearing. To me and to the overwhelming majority of Americans, protecting the nation’s waters is of critical importance. That’s the case for a very simple reason. Fresh, clean water is a basic need for people and for the planet. Without it, ecosystems are threatened. Those who use our waters for recreation or business purposes are put in harm’s way. And ultimately, the public health of all Americans is endangered.
The importance of clean water is what forged a bipartisan consensus for more than three decades in support of vigorous enforcement of the federal Clean Water Act. And in my view, President Bush’s plan to eliminate federal Clean Water Act protections for the nation’s isolated waters is just the latest in a series of assaults on this country’s environment, including its water.
It is certainly no secret that I am a vocal critic of this Administration’s poisonous policies toward the environment. Over the last two years, we have seen President Bush launch an unprecedented effort to eliminate numerous environmental, health, and safety protections. We’ve been at the mercy of a rising tide of anti-environmental policy: to allow drilling in the Arctic Refuge; weaken Clean Air Act new source review requirements for old, dirty power plants; weakly manage waste from large-scale concentrated animal feeding operations; exempt the Defense Department from complying with environmental rules and regulations; resist higher fuel economy standards and readily available technology that would reduce America’s dependence on oil; thwart efforts to curb global warming; cut the budgets of Agencies responsible for administering the nation’s environmental and natural resource protection laws; and throw out the core American tenet of “polluter pays”-- to name just a few.
Just last week, we learned of an internal report, prepared by the Environmental Protection Agency (EPA) in February 2003, that provides irrefutable evidence of the Agency’s abject failure to enforce the Clean Water Act. The report details extensive, repeated noncompliance by large industrial facilities, publicly owned treatment works, and federal facilities--noncompliance that puts our nation’s waters and public health at risk--and next to no federal action to curb those rampant violations. According to the report, in fiscal year 2001, these large industrial, municipal, and federal facilities discharged more than double their allowed amounts of toxic pollutants about half of the time. Rather than taking action, in the face of these abuses, government sat on its hands. The federal government took formal enforcement action in fiscal years 1999-2001 against fewer than a quarter of those deemed to be in serious violation on various grounds (the term of art is “significant noncompliance”). And when the federal government did get around to enforcing the law, it was toothlessly: fewer than half of its enforcement actions even resulted in a fine, and the fines that were levied averaged less than $6,000.00. Shockingly, EPA formal enforcement actions declined by 45% between fiscal years 1999 and 2001.
Mr. Chairman, that is a murky record indeed--one that shows Washington relaxing in a polluted riverbed rather than fighting the current and trying to clean our waterways. If the Bush Administration continues at this rate, I fear that before long we will be back to where we started at the beginning of the environmental movement, with our rivers and streams catching fire from pollution, as they did in the 1960’s, before the federal government wakes up to the danger caused by its neglect.
When we look closely at the subject of today’s hearing, we see more disturbing tactics and tendencies on the part of the Bush Administration. In the case of Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the United States Supreme Court ruled that the federal Clean Water Act does not protect isolated waters that are intrastate and non-navigable, where the only basis asserted for such jurisdiction is the actual or potential use of the waters as habitat for migratory birds that cross state lines. This is the specific holding in the case--that the EPA and the Army Corps of Engineers could no longer protect such waterways under the Clean Water Act solely because they are used as a habitat for migratory birds. The court held that the agencies’ reliance on migratory bird usage was contrary to Congressional intent in the Clean Water Act. At the same time, it’s important to note that the court’s legal decision does not invalidate any longstanding regulatory or Constitutional basis for federal protection of non-navigable, isolated, intrastate waters (isolated waters).
An Administration committed to vigorously protecting our environment would read the ruling narrowly and continue to aggressively enforce our environmental laws. But this Administration, predictably, has used the ruling as an excuse. On January 15, 2003, EPA and the Army Corps of Engineers published guidance to their field staff and an advanced notice of proposed rulemaking in response to the SWANCC decision. And not surprisingly, the Bush Administration is considering using the decision as a rationale to push through a much more radical anti-environment agenda than the court decision required.
The guidance, which was effective immediately, directed EPA and Corps staff to stop asserting federal jurisdiction over any isolated waters on any basis without first obtaining EPA Headquarters’ approval to do so. Likewise, the rulemaking sought public comment on what factors should provide a basis for asserting jurisdiction over any isolated waters. In other words, EPA decided to read the court’s ruling in the broadest possible terms--which, conveniently, would require the EPA and the Corps to take as passive a role as possible toward these bodies of water.
Mr. Chairman, I am not a pessimist for looking at this set of facts and thinking that the glass is half empty. With the environmental record of this Administration--with its penchant for bending over backward to protect industry but lifting little more than a finger to protect the environment and public health--that is simply a realistic response.
Fortunately, the American people are wise to this backhanded and, shall we say, backwater attempt to open our waterways to pollution. The federal government has received more than 130,000 comments in response to the rulemaking notice--many, many of which, we understand, object to the Agency’s plans to cut off federal Clean Water Act protections for these waterways. Opposition to the expansive rulemaking comes from citizens, public interest groups, environmental organizations, and such key State organizations as the Environmental Council of the States (Resolution Number 03-6 April 10, 2003) and the Association of State and Interstate Water Pollution Control Administrators (Letter Comment in EPA’s Docket for the Rulemaking).
What is at stake if the Clean Water Act does not protect these waters? A lapse in federal authority could create a void in environmental protection that many states would find difficult to fill in these historically tight budgetary times. This could leave thousands of acres of isolated waters--including what has been estimated to include 30% to 60% of this nation’s remaining wetlands--at risk. Wetlands perform crucial functions for watershed and ecosystem health across the country, including flood risk reduction, water quality improvement, and filtration and recharge of surface and subsurface drinking water supplies.
Also, as I believe we will hear more about in today’s hearing, it is clear that so-called “isolated” waters, including wetlands, are rarely truly isolated because water moves in hydrologic cycles. This means that failure to protect isolated waters may have a significant adverse impact on the overall health of the watershed and ecosystem.
In short, if these waters are left unprotected, the floodgates of pollution could, so to speak, open wide, and that could threaten public health in communities throughout America.
I am keenly interested in the Bush Administration’s rulemaking plans and response to the many public comments urging it to abandon these efforts to narrow the protections of the Clean Water Act. I urge the Administration to withdraw the current guidance and drop these rulemaking plans. Given its shameful record on environmental protection, however, I don’t anticipate that this will happen.
Congress therefore must reestablish the common and commonsense understanding of the Clean Water Act’s scope to protect all the nation’s waters. Earlier this year, I was pleased to join Senator Feingold, along with Senators Jeffords and Boxer, as an original cosponsor of S. 473, the Clean Water Authority Restoration Act. I look forward to working with members of the Senate on a bipartisan basis to enact this bill to restore the integrity of the Clean Water Act if and when it is necessary.
Thank you, Mr. Chairman and Senator Graham.