Environmental Protection

Committee Memo Details Troubles with Rapanos

The House Government Oversight Committee and House Transportation and Infrastructure Committee released a joint memorandum Dec. 16  that highlights the threat to waters posed by a recent Supreme Court decision that has created legal confusion over what waters are protected by the Clean Water Act.

A letter to President-elect Obama accompanying the memorandum concludes that “the federal government’s Clean Water Act enforcement program has been decimated over the last two years, imperiling the health and safety of the nation’s waters.” The memorandum also details a troubling record of behind the scenes industry lobbying to weaken policies that are supposed to protect the nation's waters.

 “This memorandum reveals what we always feared -- the Clean Water Act is being crushed by the current legal uncertainty and our important water resources are suffering,” said Jan Goldman-Carter, Wetlands and Water Resources Counsel for National Wildlife Federation. 

 “It is now beyond question that leaving the status quo in place is a catastrophic choice for our children’s future,” said National Wildlife Federation attorney Jim Murphy. “The new Congress, with vigorous support from the new Administration, must reverse the damage done to the Clean Water Act and put us back on the path to clean water.”

The memorandum reveals in detail that legal uncertainty caused by the recent Supreme Court decision Rapanos v. United States (2006) is undermining Clean Water Act enforcement efforts and causing crippling workloads and low moral in the agencies charged with implementing the Clean Water Act. The memorandum finds that hundreds of polluters have been let off the hook because of legal uncertainty regarding what waters the Clean Water Act protects. These include well over 100 oil spill violation cases in the West that officials state have been put on hold and where no action has been taken.

The congressional committees suggest that the problems they detail might only be the tip of iceberg. They state that EPA has withheld hundreds of documents and significantly redacted many documents that were provided.

The 2006 Rapanos decision concerned protection of wetlands next to non-navigable tributaries of navigable waters. The Court splintered 4-1-4 in the Rapanos decision. Despite the lack of any clear legal standard, the decision has placed protection of many wetlands and tributaries in doubt. In 2007, the Bush Administration issued a “guidance” to field officials purporting to give instructions on implementing Rapanos. This guidance had the effect of even further weakening Clean Water Act protections. The guidance was revised this month with changes that made it less protective than the original.

 Alarmingly, the report found evidence that industry lobbyists and political appointees successfully weakened protections and overruled sound science. The memorandum details successful efforts by industry to weaken the guidance, with the result being an agency directive that fails to protect our waters and is contrary to science and the law. It also found industry and political tampering with an important jurisdictional call regarding the Santa Cruz River that eventually had to be rectified by EPA.

 “Industry has had its way at the expense of clean water,” said Murphy. “It is time to put public health and the future of our resources first and protect America’s waters. We can afford nothing less.”

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