By Barbara Kessler
Green Right Now

What happens when regulation takes a holiday? Financial institutions run amok, industry encroaches on national parks, endangered wildlife is left in the lurch, and apparently, too, the nation’s water is put at risk.

This week, two Congressional leaders, Henry Waxman, (D-Calif.) and James Oberstar (D-Minn.) unveiled the results of their joint investigation into the Clean Water Act, which shows that there has been a recent, dangerous lack of enforcement of the Clean Water Act.

In a letter to President Elect Barack Obama, the two lawmakers explained that since a 2006 Supreme Court decision narrowed the scope of the Clean Water Act, making it more difficult to assemble a case against clean water violators, hundreds of enforcement actions have been stalled or sidelined.
All told, the report discovered that some 500 potential clean water cases have been dropped or put on hold since the court’s ruling in Rapanos v. United States, a case that asked whether certain wetlands that empty into a river in Michigan were subject to federal clean water protections. That decline in enforcement represents roughly a halving of enforcement actions.

Not everyone would agree that the curtailment was a problem.

Bush Administration guidance following the case may have constrained federal agencies even beyond the intent of the Supreme Court, according to some critics. That made making cases against alleged polluters more difficult, they say.

Waxman and Oberstar concluded that the new rules were so cumbersome they brought enforcement of the 36-year-old Clean Water Act to a near standstill.

“Our investigation reveals that the clean water program has been decimated as hundreds of enforcement cases have been dropped, downgraded, delayed, or never brought in the first place. We need to work with the new Administration to restore the effectiveness and integrity to this vital program,” Waxman told reporters.

“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,” said Ed Hopkins, director of the Sierra Club’s Environmental Quality Program in a statement following the investigative report’s release.

“Supreme Court decisions and Bush administration policies have truly muddied the waters,” he said.

Across the country, EPA regional offices complained to the Congressional investigators that they could not pursue potential clean water violators because of the new rules and  general lack of federal support for their efforts.

Waxman’s and Oberstar’s letter to Obama noted several of these complaints:

  • The Dallas regional office warned that their “oil pollution enforcement program has been significantly impacted,” dozens of oil spill cases are “on hold,” and “no follow-up for penalties or corrective action has been sought.”
  • The Denver regional office warned that it has “literally hundreds of OPA [Oil Pollution Act] cases in our ‘no further action’ file.”  That office forward to the committees a lengthy list of “violations which we failed to take cases on.”
  • The Atlanta regional office warned of a “resource drain” that “may be preventing us from doing as many enforcement actions” as in the past and informed EPA headquarters of a “downward trend” that was having “significant impacts on enforcement”; concluding that, “we will not be able to pursue the bulk of our water cases.”
  • The Seattle regional office warned that budgets allowed for “little to no site investigation.”

Hundreds of documents released by the EPA to investigators contained redactions, or excised portions, that  kept secret which of the nation’s streams, marshes and creeks have suffered from oil spills and other pollution without penalty.

The Rapanos case made clean water regulation more difficult by decreeing that federal agencies could claim jurisdiction over certain waterways only after going through a “time-consuming and resource-intensive” process, according to the letter from Waxman and Oberstar.

Waxman is chairman of the Committee on Oversight and Government Reform. Oberstar heads the Committee on Transportation and Infrastructure.

The Clean Water Act of 1972 gave Congress the power to regulate pollutants being discharged into U.S. “waters”.

Court cases have arisen at other times over whether the Clean Water Act’s authority is too broad.

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