By Mary Kerr, (202)225-6260
WASHINGTON--The Chairmen of two House Committees are challenging the U.S. Army Corps of Engineers’ narrow interpretation for determining Federal jurisdiction under the Clean Water Act. Recent actions by the Corps appear to be in violation of Federal law, prior legal precedent and agency regulations.
Rep. James L. Oberstar (Minn.), Chairman of the Committee on Transportation and Infrastructure, and Rep. Henry A. Waxman (Calif.), Chairman of the Committee on Oversight and Government Reform, sent a joint letter today to the Assistant Secretary of the Army (Civil Works), John Paul Woodley, Jr., demanding justification for recent determinations that limit the Federal government’s ability to protect the nation’s waters from pollution and contamination. Oberstar issued the following statement:
“The Clean Water Act was enacted in 1972 to simplify the process of protecting water quality throughout the United States. For three decades, it was a highly successful program that made enormous strides in improving the quality of an invaluable and irreplaceable natural resource – the nation’s waters. However, the Bush Administration, acting through the Corps, has chosen to implement the Clean Water Act in a way that has overly complicated what should otherwise be a straightforward notion -- protecting the Nation’s waters from pollution and contamination.
“With no justification and in contravention of Federal law, the administration has reverted to using a 110 year-old definition to determine which waters fall under the scope of the Clean Water Act, rather than the commonly understood, broader definition used by the Corps and the Environmental Protection Agency since 1972. Recent decisions by the Corps suggest that it is using the Rivers and Harbors Appropriations Act of 1899 to determine that only waters that are navigable by commercial vessels fall under Federal jurisdiction. However, Federal law and the Corps’ own regulations specifically prohibit the use of the Rivers and Harbors Act, which calls for very limited Federal jurisdiction, to determine which waters are protected under the Clean Water Act.
“Two recent decisions by the Corps are particularly troubling. In May 2008, the Los Angeles District of the Corps of Engineers issued a final, signed determination that two stretches of the Santa Cruz River in Arizona fall under Federal jurisdiction. Subsequently, the Corps – without explanation -- suspended its ‘final’ determination that the Santa Cruz River should receive Federal protection ‘pending further policy review.’ This action was taken despite the State of Arizona’s concerns that Clean Water Act protections would be lost for 96 percent of the state’s surface waters if the Rivers and Harbors Act’s vessel navigability approach is utilized. In the same time frame, the National Association of Home Builders criticized the Santa Cruz River determination, alleging that the scope of this determination, and by implication the Federal government’s authority under the Clean Water Act, should be limited to waters that are deep enough to float a cargo ship.
“Another decision by the Corps that concerns us is a determination in June 2008 that only two small portions of the Los Angeles River qualify as a basis for Federal protection under the Clean Water Act. As a result of this very narrow determination, the river’s many tributaries and much of the Los Angeles River basin itself may fall victim to corporate polluters who can dump untreated, contaminated materials into the River, because they no longer need to comply with the preeminent Federal law responsible for maintaining water quality.
“These determinations represent a wholesale reversal of Clean Water Act practices over the past 30 years, where all waters were assumed to be jurisdictional – and therefore protected – unless found to be otherwise. The administration has carried out the determinations in an ad hoc manner, seemingly subject to complete reversal or suspension without any clear and objective standards. We – Congress and the American public – are in the dark as to how these determinations were made. The complete lack of a clear and transparent standard for determining the jurisdictional reach of the Clean Water Act erodes the public’s confidence in the Federal government’s ability to maintain a clean water supply. Therefore, Chairman Waxman and I are directing the administration to provide to Congress complete and unredacted copies of all communications relating to its determinations for the Los Angeles River and the Santa Cruz River.
“It is an irrefutable fact that a pollutant deposited in one segment of a river is likely to have an adverse impact on a downstream segment of that river. By asserting Federal jurisdiction only in very narrowly defined circumstances, the Corps’ recent determinations will have dramatic and lasting implications for the Federal government’s ability to prohibit, limit, or protect against discharges of toxic chemicals, raw sewage, and oil into the nation’s waters.
“Not only has the Bush administration made a mockery of the Clean Water Act’s goals to protect the nation’s waters, it has pulled the threads that will completely unravel the gains made over three decades since the Clean Water Act was enacted. Over the past seven years, this administration has repeatedly favored business interests over the environment. I am troubled that recent Corps determinations may be yet another example of the White House exerting undue influence over what should be a transparent and nonpartisan process.”
PDF of letter here >>>
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