Statement of Robert Kennedy, Jr., Oct. 8, 2002

Testimony of Robert F. Kennedy, Jr.

Before the U.S. Senate

Environment and Public Works Committee

In Recognition of the 30^th Anniversary of the Clean Water Act

October 8, 2002

Clean Water Under Attack

Mr. Chairman and Members of the Committee. It is an honor to testify before you today on the anniversary of the passage of the Clean Water Act of 1972. I am Bobby Kennedy and am testifying this morning on behalf of the Natural Resources Defense Council, the Waterkeeper Alliance, and the Clean Water Network. NRDC is a national environmental group that has a long history of working to protect our nation’s waters through the Clean Water Act. Waterkeeper Alliance is a grassroots organization dedicated to preserving and protecting your waters from polluters. The Clean Water Network is a coalition of more than 1,000 groups supporting clean water from around the country.

Our nation is at a crossroads in its efforts to address water pollution, much as we were at a crossroads on Oct. 18, 1972 when the U.S Congress decided to override the veto of a then very popular president in order to protect the waters of the United States. Today, that law, the Clean Water Act, has been in place for exactly thirty years and has been the model for every subsequent environmental law. But the Clean Water Act is not just a model of an excellent environmental statute, its results have been demonstrated in improved water quality in rivers, lakes, and coastal waters across this country. It is ironic that we are celebrating the successes of the Clean Water Act today because at the same time we are trumpeting its environmental achievements, the Bush administration is taking away the tools that made it successful. The Bush administration is proposing or has already weakened requirements for treating raw sewage, cleaning up impaired waters, keeping solid wastes out of waters, protecting wetlands, and even for defining those rivers, lakes, wetlands, and other waters that are eligible for federal protection at all. As it was in 1972, the course is clear. Our nation cannot afford to let our most precious resource – our waters – become increasingly polluted and dangerous. We need to reject the Bush administration rollbacks and move ahead with the work of cleaning up our waterways.

Our Nation’s Waters Before the Clean Water Act

“[T]oday, the rivers of this country serve as little more than sewers to the seas. Wastes from cities and towns, from farms and forests, from mining and manufacturing, foul the streams, poison the estuaries, threaten the life of the ocean depths.” These are the words uttered by Senator Edmund Muskie on November 2, 1971, during his introduction of the bill that would become the Federal Clean Water Act.[1] More than a generation has passed since passage of the Act, but it is important for those of you who remember what our waters used to be to pass on that knowledge to your children and grandchildren.

Before the passage of the Clean Water Act in 1972, clean water appeared headed for extinction. [2]

· In March of 1969 there was a blowout at a Union Oil Company located off the coast of Santa Barbara, California. This incident resulted in a release of gallons of oil blanketing more than 400 square miles of water with a six-inch thick layer of crude oil, and covering at least 30 miles of beach. Thousands of sea birds died and almost all of the fishing in the area was wiped out for several weeks;[3]

· There were record fish kills, including 26 million fish killed in Lake Thonotosassa, Florida;

· The annual commercial harvest of shrimp had dropped from more than 6.3 million pounds before 1936 to only 10,000 pounds in 1965;

· Industrial discharges of mercury into the Detroit River were at a rate of between 10 and 20 pounds per day, causing in-stream water quality to exceed by six times the Public Health Service limit for mercury;[4]

· In the 1970's most raw sewage was dumped into our rivers and lakes. At that time only 85 million people were served by any kind of sewage treatment plant.[5]

· Less than 10% of U.S. watersheds were characterized as unpolluted or even moderately polluted; and, utterly shocking,

· The Cuyahoga River in Cleveland, Ohio, burst into flames in June of 1969 fueled by oil and other industrial wastes .

Congress Passes the Clean Water Act

The resulting public outrage from these and other terrible incidents of pollution led to the Clean Water Act and paved the way for subsequent legislation. With overwhelming bipartisan margins in both houses of Congress, the Clean Water Act was passed over an initial veto by President Richard M. Nixon on October 18, 1972. In warning the representatives of the dangers of failing to override the President’s veto, Representative Thomas “Tip” O’Neill from Boston stated, “Should we fail to act, future generations of Americans living with dirty, unsafe rivers and lakes would know where to squarely fix the blame with the Congress that refused to override the groundless objections of the President.”[6]

Clean Water Act Begins to Protect our Nation’s Waters

The Clean Water Act is commonly viewed as one of the most successful environmental laws in America. In many ways, the Act truly did turn the tide on water pollution. We drastically reduced the percentage of our waters deemed unsafe for fishing and swimming, invested billions in sewage treatment plants and other technologies, and cut the rate of wetlands loss by three-fourths.

It has been estimated that, in 1972, 60-70% of America’s lakes, rivers and coastal waters were not safe for fishing and swimming.[7] According to the most recent Clean Water Quality Report to Congress, those numbers have dropped to 39% for rivers, 45% for lakes, and 51% for estuaries.[8] Those numbers are still far too high, but without stringent regulation we will be back to 1972 statistics.

The present state of many of our lakes and rivers, when compared to their conditions in 1972, illustrates the Clean Water Act’s effectiveness. For example, Lake Erie was proclaimed dead in 1970. The pollution had reached such high levels in Erie and other waterways in the Great Lakes system that it led to a ban on fishing in certain parts of the system. Now, thirty years after the passage of the Clean Water Act, the fish population of Lake Erie has improved significantly – and the numbers of fish – particularly walleye and bass have increased.[9]

The Hudson River has seen dramatic recovery since the 1960s. Back then, the River was considered an open sewer. Today, it is the only large river in the North Atlantic that retains strong spawning stocks of its entire collection of historical migratory species. These fish support recreational and commercial fisheries along the Atlantic coast worth hundreds of millions of dollars.[10]

During the 60’s and 70’s wastewater and industrial plants were discharging large amounts of harmful pollutants and nitrogen into Tampa Bay. The pollution damaged the bottom sediment and killed many organisms essential to a healthy ecosystem. Since then, thousands of acres of sea grass on the Bay floor have been recovered. An estimated fifteen hundred acres of marsh and mangrove habitats have been restored, including 250 acres of tidal marshes that are critically important for fish.[11]

Dramatic improvement in water quality is readily apparent in Boston Harbor. In the 1970’s sludge was regularly dumped into it and the ecosystem was on the verge of biological death. Now, seals and porpoises swim off South Boston’s Castle Island, lobsters are routinely caught and tourists can even take cruises through it.[12]

Water Pollution Challenges Ahead

While overall water pollution levels have decreased dramatically over the past 30 years, recent data show a more troubling story. EPA just released its biennial survey of the quality of the nation’s assessed waters, which shows for the first time since the passage of the Clean Water Act that water pollution levels are on the rise.[13] Worsening conditions are especially apparent for estuaries – 13% more of which are too polluted to support their uses than just four years ago. Impairment of estuaries has profound ramifications for the environment and for the economy since they are nursery areas for many commercial and recreational fish species and most shellfish populations, including shrimp, oysters, clams, crabs and scallops.[14]

The number of beach closings and advisories is also increasing. In its annual beach report, Testing the Waters, NRDC found the number of beach closings and advisories has increased in 2001 by 19 percent over the previous year: 13,410 in 2001 compared with 11,270 in 2000.[15] Nationally, beach closings and advisories have increased from 2000 in 1991 to more than 13,000 in 2001 – more than six times as many closures and advisories than just 10 years ago.[16] While much of that increase is due to better monitoring of beach water quality, that monitoring has increasingly found unsafe water quality conditions at our nation’s beaches.

Overall, 44% of U.S. estuarine waters are degraded, according to the first National Coastal Condition report, released this past spring by EPA, NOAA, USGS and the U.S. Fish and Wildlife Service.[17] The report also found that the overall score for eutrophic condition of estuarine waters is poor and increasing throughout much of the United States.[18] Eutrophic conditions result from excessive nutrients in the waterbody and is usually expressed in overproducton of algae. Eutrophication depletes the water body of oxygen, making it unsuitable to support fish and other aquatic wildlife, and it kills submerged aquatic vegetation.[19] The National Coastal Condition report projected that eutrophic conditions would worsen for 70% of U.S. estuaries by 2020.[20]

Between 1993 and 2000 the percentage of the nations lake acres and river miles under fish consumption advisories has increased steadily.[21] River miles under advisory have increased from 2% in 1993 to 14% last year. Lake acres under advisory have increased from 8% in 1993 to 28% last year. Twenty-eight states currently have statewide advisories. One hundred percent of the Great Lakes and their connecting waters are under advisory. As of 2001, only one state in the country has no fish consumption advisories in place.[22] There are fish consumption advisories for 71% of the coastline in the contiguous 48 states and for 82% of estuarine square miles.[23] A fish advisory warns the public that high levels of chemical contaminants have been found in local fish and shellfish and that eating the fish, especially in significant quantities, may not be safe.[24]

The U.S. Commission on Ocean Policy, now halfway through an 18-month study, found that around 40,000 acres of coastal wetlands which provide spawning, feeding and nursery areas for three-fourths of U.S. commercial fish catches are disappearing each year.[25]

Clean Water Act’s Effectiveness in Cleaning our Waters

While the Clean Water Act has been one of the most successful environmental laws ever, it has not yet been fully implemented or enforced.[26] It also does not adequately address all sources of water pollution, especially polluted runoff, which remains the largest source of water pollution in the nation.[27] We need full implementation and enforcement of all CWA provisions and strengthening of those provisions that are not doing the job of protecting our waterways.

A key element to the successes achieved to date is that, when it passed the Clean Water Act, Congress adopted a combination of techniques to revive the nation’s waters:

· Protecting a broad range of water resources against despoiling or destruction. This protection applies broadly to rivers, lakes, coastal waters and wetlands.

· Protecting waters from industrial pollution by setting minimum technology-based standards for wastewater treatment that would become increasingly stringent over time.

· Ensuring that waters will be clean and safe to use by determining uses, such as recreation, aquatic habitat, and drinking water, and setting limits on pollutant discharges designed to meet those uses.

· Building municipal wastewater treatment plants to provide secondary treatment for all sewage.

· Requiring all discrete dischargers of pollutants (i.e., point sources) to obtain individual, tailored permits that clearly specify the discharge requirements necessary to prevent degradation of its receiving waters.

· Requiring states to identify all waters that are too polluted to be used safely, to determine how much pollutant loads need to be reduced to clean up those waters, and then to implement a cleanup plan.

Thus, most of the tools needed to effectively clean the nation’s waters and were crafted by Congress 30 years ago. If these provisions are fully implemented as stated in this visionary Act, our nation could achieve the law’s now long overdue goals of making all waters safe for fishing and swimming and ending the discharge of pollutants into waters.

We must fight to maintain adherence to these techniques and to continue to strive for achieving the goals of the Clean Water Act that Congress envisioned in 1972.

Bush Administration Attacks on the Clean Water Act

Unfortunately, each one of these core concepts is under attack by the Bush administration. In each case, the industry or industries that are required to reduce their water pollution discharges have been lobbying the Bush Administration to reduce protection for the environment. They have already been successful in derailing a number of clean water advances, broadening loopholes, and legalizing previously prohibited destructive practices. The rules and policies of the Bush administration are rapidly undoing 30 years of progress and undermining the billions of dollars our country has invested in the effort to clean the waters.

Authorizing Raw Sewage Discharges

We did not have to wait long for the Bush administration attacks on clean water to begin. The first attack came on Inauguration Day when President Bush’s Chief of Staff announced an immediate moratorium on all recently-adopted regulations. A proposed regulation to control raw sewage discharges and to require the public to be notified when overflows occur was withdrawn for further review by EPA. More than a year and a half later, EPA is still reviewing it and considering alternatives to that proposal that would authorize permanent discharges of raw and inadequately treated sewage.

Each year the U.S. experiences about 40,000 overflows of raw sewage and garbage – such as syringes, toxic industrial waste, and contaminated stormwater – into its rivers, lakes, and coastal waters. And each year about 400,000 sewage backups pollute the basements of America’s homes. These overflows expose communities to a host of deadly diseases and could be a particularly virulent means of transmission for a waterborne bioterrorist threat.[28] EPA has estimated that between 1.8 and 3.5 million Americans become sick every year just from swimming in waters contaminated by sanitary sewer overflows.[29] Researchers from the Centers for Disease Control (CDC) have estimated that as many as 940,000 Americans become ill and 900 die from waterborne infections each year, many of which are caused by discharges of raw or inadequately treated sewage.[30] These overflows contaminate drinking water and cause beach closings, fish kills, shellfish bed closures, and gastrointestinal and respiratory illnesses. Sewage-infested waters pose the greatest threat for children, the elderly, and those with weakened immune systems.[31]

Sewer overflows can result in illness and, in extreme cases, death. Such was the case in the small town of Cabool, Missouri in 1990, when an overflow was linked to a pathogenic strain of E. coli that killed four people, hospitalized 32 and caused diarrhea and other problems for 243 more residents.[32] In 1988, sewage overflows in Ocoee, Florida periodically flooded a mobile home park during heavy rains and caused occasional outbreaks of disease, including 39 cases of hepatitis A. Two years ago, a 34-million gallon spill in San Diego continued unabated for a week, unmonitored. By the time it was finally discovered and stopped, solid sewage covered miles of beaches.[33]

The Environmental Protection Agency rule that the administration stayed would help keep bacteria-laden raw sewage discharges out of our streets, waterways and basements, and make public reporting and notification of sewer overflows mandatory. The proposed rule would also help protect the public from getting ill from exposure to raw sewage, would improve capacity, operation and maintenance of sewer systems, and would cost only $1.92 per household per year.

The Association of Metropolitan Sewerage Authorities (AMSA), which represents sewer operators, is lobbying the administration to abandon portions of the rule, despite having already agreed to those provisions in a five-year federal advisory committee process. AMSA favors a rule that would allow its members to continue to discharge raw sewage so long as they implement a capacity, management, operation, and maintenance program. AMSA argues that the Clean Water Act’s requirement that all sewage be treated before it is discharged is too expensive. Congress rejected that argument in 1972, and it has no more basis today. Investment in our sewer systems is a sound investment in cleaner water and better health.

The Bush administration proposal, if ever issued, is likely to be inconsistent with the CWA goal of providing effective treatment for all sewage. While these rules sit on the chopping block, raw sewage continues to flow into our waters, and Americans are still denied even rudimentary public notice of such contamination in the waters from which they drink and where they swim and fish. As the late Senator Edmund S. Muskie said in 1971, “The fact of raw sewage floating in our river outrages us.”[34] Thirty years later, it still outrages us and still endangers us.

New Net Loss of Wetlands

For more than a decade, the cornerstone of America’s approach to wetlands protection has been a policy that calls for “no net loss” of wetlands – a policy that originated with the first Bush administration. However, over the last year, the Bush administration has adopted two major changes to wetlands protection policy that will result in more wetlands being filled and destroyed, and, until reversed, have effectively eliminated the possibility that the nation can achieve the no net loss goal.

In October 2001, with no public notice or opportunity for comment, the Corps of Engineers reversed the long-standing policy no net loss policy by issuing new “guidance” that dramatically weakened standards for wetland “mitigation.” The use of mitigation to try to make up for wetland losses is already a controversial practice that is often misused to justify the destruction of existing wetlands in exchange for a promise to create new wetlands. The new guidance makes this situation much worse by allowing wetlands to be traded off for dry upland areas that do not serve the same functions as wetlands. As our natural wetlands are traded away for uplands, the net loss of wetlands will increase. The result will be the loss of thousands of acres of wetlands each year, resulting in less flood protection, less water cleansing, and less fish and wildlife habitat. Other federal agencies subsequently objected, but no guidance to overturn this misguided Corps guidance has been issued.

Despite the President’s Earth Day 2001 pledge to preserve vital wetlands resources, his administration also relaxed a key provision of Clean Water Act regulations that govern development and industrial activity in streams and wetlands, the nationwide permit program. The Corps loosened these permit standards to make it far easier for developers, mining companies, and other industries to destroy more streams and wetlands without any notice or opportunity for the public to comment. EPA and the Fish and Wildlife Service opposed the changes, but the changes were put into place nonetheless. Developers and mining interests that brought suit against the previous set of nationwide permits have been urging the Bush Administration to allow more wetlands destruction for development, mining, and other purposes. So far, their voice appears to have outweighed those of environmental and natural resources experts and the public, which supports strong protections for the nation’s water resources.

Wetlands play a critical role in protection of the environment and public health. They absorb floodwaters, filter pollution, recharge groundwater aquifers and provide habitat for hundreds of plant and animal species, including many that are threatened or endangered.

Since the 1800s, the conterminous U.S. has lost over half of its wetlands, and the nation continues to lose at least 60,000 acres of wetlands each year. This rate of loss will certainly increase as a result of rollbacks of wetland protections by the Bush administration. These changes will mean greater destruction of wetlands, with less opportunity for notice and comment by the public. The inevitable result will be increased flooding, more water pollution, and greater loss of wildlife habitat.

Turning our Waters into Waste Dumps

Allowing masses of industrial wastes to be dumped into streams, lakes, rivers, and wetlands is contrary to the central purpose of the Clean Water Act: to restore and maintain the integrity of the nation’s waters. Nothing is more inconsistent with that goal than allowing industries to bury and permanently destroy waters under huge piles of industrial debris.

Yet, on May 3, 2000 the Bush administration eliminated a 25 year-old Clean Water Act regulation prohibiting the Army Corps of Engineers from allowing wastes to be used to bury and destroy waters of the United States.[35] The rule change was motivated by administration efforts to legalize the practice of mountaintop removal mining, where coal companies blast the tops off of mountains and huge volumes of waste are dumped into nearby valleys, burying streams and wetlands and killing all aquatic life. Already, in West Virginia and Kentucky alone, well over 1000 miles of streams have been authorized for destruction by mountaintop removal waste fills.

As if this were not bad enough, the Bush proposal would not stop at the edge of the Appalachian coal fields, but would allow the Corps to issue permits to all kinds of industries to dump wastes like hardrock mining waste, construction and demolition debris, and other solid industrial wastes to bury wetlands, streams, rivers, coastal waters, and other waterways throughout the country.

The polluters – coal mining companies, gold and copper mining companies, and other industrial polluters – made these rule changes to allow them to dump their wastes in waters a top priority. According to government documents, these industries met with EPA and other Bush administration officials to pressure them to rewrite clean water rules according to industry specifications. The administration acquiesced, and the final rule gives the Corps authority to permit any industry to bury any waterway under piles of coal mining waste, hardrock mining tailings, construction and demolition debris – almost any sort of solid waste.

Allowing waters to be buried under piles of waste permanently destroys those waters. The Clean Water Act was adopted in 1972 to protect our rivers, streams, lakes, wetlands, and coastal waters. The very first sentence of the law declared this goal: “It is the objective of this chapter to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Turning waters into waste dumps is the very kind of act that the Clean Water Act was passed by Congress to prevent.

Derailing Cleanup of Polluted Rivers, Lakes, and Coastal Waters

Thirty years after passage of the Clean Water Act, the overwhelming majority of the population – 218 million Americans – lives within 10 miles of a polluted river, lake, or coastal water.[36] These waters are not safe for fishing, swimming, boating, much less as drinking water sources or for other basic uses. The polluted waters include approximately 270,000 miles of rivers and streams, 7.7 million acres of lakes, and 15,000 square miles of estuaries that have been assessed and found to be impaired – polluted by discharges of sediments, nutrients, and pathogens, as well as pesticides and other toxic chemicals.[37]

In 1972, the drafters of the Clean Water Act created a program to ensure that where the law’s technology requirements limiting pollution from factories, sewage plants, and other “end-of-the-pipe” pollution sources were not enough to result in clean, safe water, additional steps would have to be taken. That program is the “Total Maximum Daily Load” cleanup program. The cleanup program requires that states and EPA identify rivers, lakes, and coastal waters that are not protected enough by the Act’s technology requirements and then develop a clean up plan (known as a TMDL) for each waterbody.

The cleanup plan calculates the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, sets a pollution “cap” or load limit, then allocates the total pollutant load reductions among all point and nonpoint dischargers of the pollutant to ensure that the total cumulative amount of the pollutant discharged will not exceed the limit.

Now, the Bush administration has said that it plans to “redesign” the Clean Water Act’s program for cleaning up these polluted waters. On August 7, 2002, the EPA announced that it intends to rewrite the rules of the Act’s cleanup program. Bush administration strategies for crippling the cleanup of polluted waters include proposals to:

· Weaken standards for classifying waterbodies and allow currently polluted waters to be re-defined as clean – at least on paper;

· Allow states to rely upon speculative and unenforceable reductions from nonpoint sources as a basis for classifying waters as "likely to achieve" water quality standardsand, therefore, avoid doing a TMDL clean up plan;

· Allow increased discharges from point sources based upon those same speculative, unenforceable future reductions from nonpoint sources; and

· Curtail EPA's oversight of the states' implementation of this vital program of the Clean Water Act.[38]

Current regulations for implementing the cleanup program were adopted in 1985 by the Reagan administration, then amended in 1992 under the previous Bush administration. These rules have been supplemented by various guidance documents and many federal court opinions interpreting the EPA’s and states’ responsibilities under the cleanup provisions of the statute. If finalized, the Bush administration’s proposal will drastically weaken these longstanding rules and ensure that dirty waters remain polluted – if not become more so – for decades to come.

Rather than rolling back another core Clean Water Act program, the Bush administration should focus on ensuring that the states properly implement the current TMDL cleanup program. Congress established the TMDL program to clean up America’s waterways. It is the duty of the states and EPA to implement this program and restore the nation’s waters for safe use by all Americans. We have no hope of ever attaining this goal under this Administration’s aggressive attack on the Act.

Cutting Tributaries, Streams, and Wetlands Out of the Clean Water Act

If all of these threats were not enough, the Bush administration recently announced the largest potential roll back of CWA protections yet. Instead of demonstrating its commitment to protecting all the waters of the United States and strengthening the effectiveness of this most important law, the administration has instead decided to propose new regulations that could remove many waters from coverage under the Clean Water Act.

Testifying before Congress on September 19 – just a month short of the 30^th anniversary – EPA and U.S. Army Corps of Engineers officials announced that they now “question” whether the Act should apply to non-navigable tributaries of navigable waters, intermittent and ephemeral streams, man-made watercourses connecting these waters, and wetlands adjacent to such waters – waters that have been undeniably protected by federal law for decades. The rules now questioned by the Bush administration have, since 1975, explicitly defined waters of the U.S. broadly in order to implement the Clean Water Act’s goal of restoring and maintaining the “chemical, physical, and biological integrity of the Nation’s waters.” They told the House committee that the administration will initiate a rulemaking to change the regulatory definition of “waters of the United States” because of these questions.

This was a stunning pronouncement. If the administration removes federal Clean Water Act protection for non-navigable tributaries of navigable waters, including intermittent and ephemeral streams, man-made watercourses connecting these waters, or wetlands adjacent to these waters, this proposal would reverse almost thirty years of national policy to protect the nation’s waters and has grave implications for the control of pollution, the health of communities, the protection of habitat and flood control efforts. Reopening the definitions of which waters should be included in the Clean Water Act will undermine many rules and court decisions that have protected our nation’s waters for decades.

Of course, Congress enacted the Clean Water Act, and only Congress can change it, so any attempt to limit the scope of the act by regulation would undoubtedly be the subject of a vigorous legal challenge. But it important to recognize the significance and audacity of what the administration is proposing here. To define certain waters as outside the scope of the Act means those waters would not be subject to any of the law’s protections: the prohibition on discharging pollutants, the requirements to get a permit before discharging effluent or fill material, or the requirement that impaired waters be listed and plans to clean them up written.[39] For these excluded waters, there would be no federal Clean Water Act.

There is no scientific basis for excluding any of these waters from federal protection. In fact, the vast body of scientific evidence teaching us how hydrologic systems function emphasizes the connectivity of waters, how affecting one part of the system affects the whole. Wetlands, intermittent and ephemeral streams, and tributaries are integral parts of watersheds that affect the health of all water systems, even those that are seemingly “isolated.” These waters drain into larger waterbodies and groundwater sources. Pollution or fill dumped into these waters destroys important water resources and eventually ends up in larger lakes and rivers.

Administration officials claim that the proposed rulemaking is a response to a January 2001 Supreme Court decision concerning so-called “isolated” wetlands and subsequent lower court rulings concerning wetlands. However, the Supreme Court ruling at issue, Solid Waste Agency of Northern Cook County vs. Army Corps of Engineers,[40] only struck down the use of a policy under which the Corps of Engineers extended jurisdiction to water bodies based on their use by migratory birds. Neither the Supreme Court ruling nor the majority of lower court rulings have held that any regulatory weakening of the Clean Water Act’s regulatory definition of “waters” is warranted, let alone the sweeping proposal announced by the Bush administration.

In fact, the Department of Justice (DOJ) has argued in nearly two dozen court cases since the Supreme Court’s January 2001 decision that the current definition of “waters of the United States is not only legal and reasonable, but that without broad protection of all waters, the goals of the Clean Water Act cannot be met.

For example, on August 30, 2002 the DOJ filed a brief in the case of U.S. v. Newdunn, on appeal to the Fourth Circuit, which stated:

Federal regulations reasonably construe the [Clean Water Act] term “waters of the United States” to include wetlands adjacent to all tributaries, not just primary tributaries, to traditional navigable waters.

In criticizing the lower court’s ruling, the DOJ’s Newdunn brief argues that any other interpretation of the regulations would be inconsistent with the Act itself:

The court fails to explain why or how Congress could have intended to regulate discharges into all primary tributaries but not secondary tributaries, regardless of their significance to the traditional navigable waters into which they flow, directly or indirectly.

The regulations have consistently construed the Act to encompass wetlands adjacent to tributaries to traditional navigable waters – be they primary, secondary, tertiary, etc. – since 1975, a construction that comports with Congress’s intent to control pollution at its source and broadly protect the integrity of the aquatic environment. (Emphasis added.)

Similarly, a July 2002 brief for the United States in U.S. v. Rapanos before the Sixth Circuit Court of Appeals argues that:

To exclude non-navigable tributaries and their adjacent wetlands from the coverage of the Act would disserve the recognized policies underlying the Act, since pollution of non-navigable tributaries and their adjacent wetlands can have deleterious effects on traditionally navigable waters.

Despite the Justice Department’s arguments, the Bush administration’s response to the narrow loophole created by the SWANCC ruling is to tear open the entire Clean Water Act. No President in the last 30 years – Republican or Democrat – has ever proposed such a significant cutback to Clean Water Act protections.

Conclusion

The administration’s attacks on the Clean Water Act come at a time in our country’s history when national security concerns are at new high. The administration is seizing upon these risks as an excuse to relax the environmental laws – essentially equating environmental protection with increased threats to our security. This administration’s nexus between the environment and our nation’s security could not be further from reality. A country without clean water to drink, without clean water in which to swim, and without healthy fish is a country at grave risk.

Every living creature on this planet depends on water for its survival on water. Thirty years ago, this Congress understood this basis premise of life and bravely stood up to industry opposition and crafted the wisdom of the Clean Water Act. Sound, judicious enforcement of this law has protected our public health and the environment and secured a healthier, safer future for all Americans. This administration has turned its back on that wisdom. If we do not halt this reversal, we will be exposed to long-term threats to the health and welfare of the environment, the citizens of this country and our society.

[1] U.S. Government Printing Office, A Legislative History of the Water Pollution Control Act Amendments of 1972, 1253 (1973).

[2] R. Adler, et al, The Clean Water Act: 20 Years Later (1993).

[3] M. Graham, The Morning After Earth Day: Practical Environmental Politics. pp. 27-28. 1999; http://brookings.nap.edu/books/081573235X/html/index.html.

[4] 2 Congressional Research Service, Legislative History of the Water Pollution Control Act of 1972 at 1253 (1973)

[5] Congressional Research Service. Oceans & Coastal Resources: A Briefing Book, Congressional Research Service Report 97-588 ENR. http://www.cnie.org/nle/crsreports/briefingbooks/oceans/appendb3.cfm; http://www.mtholyoke.edu/offices/comm/oped/browner.shtml.

[6]92 Cong. House Debates 1972, FWPC72 Leg. Hist. 15, LEXIS CIS Legislative Histories SourceFile.

[7] M. Kremer, Clean Water Act 30th Anniversary, www.surfrider.org.temp-url.com/makingwaves/makingwaves18-1/11.pdf

[8] U.S. EPA, National Water Quality Inventory: 2000 Report, Fact Sheet (Sept. 30, 2002), www.epa.gov/305b/2000report.

[9] From the website of the Joyce Foundation, Cleaning Up Lake Erie, www.joycefdn.org/articles/enviroarticles/9801cleaning.htm (Oct. 3, 2002).

[10] From the website of the Hudson Riverkeeper; www.riverkeeper.org (Oct. 3, 2002).

[13] U.S. EPA, National Water Quality Inventory: 2000 Report, T. Watson, “EPA Report Shows Water Quality May be Stagnating,” USA Today at 5A (Oct. 6, 2002).

[14] U.S. EPA, National Water Quality Inventory: 2000 Report at 25.

[15] S. Chasis and M. Dorfman, Testing the Waters at v (July 2002).

[17] U.S. EPA, National Coastal Condition Report xvi (printed September 2001) (released April 2002) http://www.epa.gov/owow/oceans/nccr/index.html .

[21] www.epa.gov/waterscience/fish/advisories/factsheet.pdf.

[25] J. Heilprin, Panel Finds U.S. Coastal Waters in Trouble. Associated Press, www.nrdc.org/news/newsDetails.asp?nID=769 .

[26] U.S. Public Interest Group, Permit To Pollute: How the Government's Lax Enforcement Of The Clean Water Act Is Poisoning Our Waters (Aug. 6, 2002); http://uspirg.org; U.S. EPA, Office of the Inspector General, Water Report: State Enforcement of Clean Water Act Dischargers Can Be More Effective, ES i-iv (Aug. 2001).

[27] U.S. EPA, 2000 National Water Quality Inventory Report, Executive Summary at 3, http://www.epa.gov/305b/2000report.

[29] U.S. EPA, Notice of Proposed Rulemaking, National Pollutant Discharge Elimination System (NPDES) Permit Requirements for Municipal Sanitary Sewer Collection Systems, Municipal Satellite Collection Systems, and Sanitary Sewer Overflows (Jan. 4, 2001)(note: there are no official page citations available since this proposal was not published).

[30] J. Bennett, et al., Infectious and parasitic diseases, in Closing the gap: the burden of unnecessary illness 102 (Robert Amler & H. Bruce Dull eds., Oxford University Press 1987).

[31] U.S. EPA, Notice of Proposed Rulemaking, National Pollutant Discharge Elimination System (NPDES) Permit Requirements for Municipal Sanitary Sewer Collection Systems, Municipal Satellite Collection Systems, and Sanitary Sewer Overflows (Jan. 4, 2001).

[33] T. Rodgers and S. La Rue, “City Lacks Early Warning System for Spills” at A1, San Diego Union-Tribune (Mar. 1, 2000).

[34] A Legislative History of the Water Pollution Control Act Amendments of 1972 at 1263.

[36] U.S. Environmental Protection Agency, Atlas of America’s Polluted Waters. EPA 840-B-00-002. Washington, DC. 2000.

[37] U.S. EPA, National Water Quality Inventory: 2000 Report, http://www.epa.gov/305b/2000report.

[38] U.S. EPA powerpoint presentation to AMSA (July 19, 2002); U.S. EPA powerpoint presentation to the Association of State and Interstate Water Pollution Control Administrators (March 10, 2002).

[39] 33 U.S.C. §1311, 1342, 1344, and 1313(d).