Mr. Chairman, I am pleased to be here today at this oversight hearing evaluating the implications of the Rapanos – Carabell Supreme Court Decision on the jurisdiction of the Clean Water Act.
The Clean Water Act was passed in 1972 to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. It was a landmark statute that completely overhauled the nation’s clean water programs.
We have made significant progress in cleaning up our waters, but we have more work to do. Just a few months ago, the EPA issued its first assessment of the water quality in streams nationwide that are too shallow to support boat traffic and found that 42 percent of them are in poor condition. In the northeast, 51 percent of these streams, many of which are fantastic fishing spots, are in poor condition.
Upon hearing these numbers, my natural reaction is, let’s take action and help these waters recover. I am concerned that this Court decision, which I feel is completely contrary to Congressional intent, could take us in the opposite direction, limiting clean water protections and leading to dirtier water.
For example, last January, the EPA stated in a letter that about 59 percent of the length of shallow streams in this country flow only part of the year. This is one of the categories of waters that could be excluded from Clean Water Act protections under some interpretations of the Supreme Court decision. I ask that the EPA’s letter be entered into the record.
This test would ignore the fact that is patently obvious to any observer – that water flows downstream from small bodies of water to larger ones. Sometimes it rains, sometimes it doesn’t.
Just last week it rained about two inches in the Phoenix, Ariz., area, causing widespread flooding. Some streams in that region recorded a one-foot increase in flow over the course of only a few hours. I am certain that any pollution sitting in those streambeds was washed downstream. This example shows that even if a shallow stream flows only part of the year, pollution will still make its way downstream.
With regard to the Administration’s planned response to this Court decision, I have a few concerns. The EPA depends heavily on the President’s goal of an “overall gain” in wetlands to give reassurance that wetlands will remain protected.
Today I will be sending a letter to the President with several of my colleagues asking some detailed questions about the program. “Overall gain” is a two-sided question – you measure gains and you measure losses, then you balance that equation and figure out how you’re doing. I am concerned that wetland losses may not be included in your calculations, providing an overly optimistic view of the status of these threatened waters nationwide.
Second, I am concerned that the Administration will issue guidance in response to this case that is overly broad, just as they have done in response to previous Supreme Court decisions.
Mr. Chairman, in 1977 my predecessor, Senator Bob Stafford of Vermont, stated, “The 1972 Federal Water Pollution Control Act exercised comprehensive jurisdiction over the nation’s waters to control pollution.”
It is a simple concept that Congress clearly needs to clarify with legislation in the wake of this Supreme Court decision.