Halloween Trick: Act Now to Stop Two-Headed Senate Monster's Attacks on Clean Water


amir monster.jpgNext week, the U.S. Senate is planning to consider two pieces of legislation that would eviscerate protections for the nation's streams, lakes, and wetlands. Both of these measures target the Clean Water Rule, the Obama administration's landmark initiative to restore safeguards against pollution and destruction for water bodies across the country. Undermining this important protection is bad enough, but both pieces of legislation in the Senate take a terrible idea and make it downright terrifying. Your Senators need to hear from you now that you oppose these measures - here's some information on how to contact them.

What's the Clean Water Rule and why should I care about it?

The Clean Water Rule restores ensures that a variety of water bodies are protected by numerous important safeguards in the Clean Water Act. The Act contains requirements that prevent polluters from destroying water bodies or dumping into them without implementing pollution control measures, that mandate the cleanup of polluted waters, and that insist that oil companies have spill prevention plans, to name a few.

These safeguards once protected a wide range of water bodies. But, protections were eroded after a pair of Supreme Court decisions and by policies the Bush administration adopted, which left many water bodies inadequately protected or lacking the pollution control requirements of the Clean Water Act. These policies affected streams -- including headwater, seasonal, and rain-dependent streams -- that feed downstream waterways. Such streams contribute to the drinking water supply of one in three Americans. The policies also hurt many critical wetlands, which curb flooding, filter pollution, and provide habitat for a wide variety of wildlife, including endangered species and wildfowl and fish prized by hunters and anglers.

Legal uncertainty over whether the Clean Water Act protects many of these waters has particularly hurt law enforcement. Major pollution investigations of companies that have contaminated lakes, rivers, and other waters have not been prosecuted. According to EPA enforcement staff, an estimated total of 489 enforcement cases in just a few-year period were adversely affected. For example, in one case, according to EPA, an operator of a Texas dairy farm discharged around 43,000 gallons of wastewater onto his property, where it flowed to a neighboring property and then entered a creek that flowed into a large, navigable-in-fact waterway. Although EPA spent over 300 hours on determining the legal status of the waters in question, the Assistant U.S. Attorney declined to prosecute the case because of concerns about the government's authority.

Enter the Clean Water Rule. The rule restores historic protections for tributary streams and nearby waters, and gives other water bodies that appear to be more remote but that can have critical effects on downstream water quality a fighting chance at protection. Because of these improvements, the rule will help deliver benefits for public health, hunting and angling, and small business.

Restored clean water protections enjoy broad support. In polling for the American Sustainable Business Council, eighty percent of small business owners -- including 91% of Democrats, 73% of Independents and 78% of Republicans -- said they supported the then-proposed Clean Water Rule. A strong majority, 71%, also said that clean water protections are necessary to ensure economic growth; only six percent said they were bad for growth. Similarly, a bipartisan research team polled hunters and anglers nationwide and discovered that 83% surveyed thought that the Environmental Protection Agency should apply the rules and standards of the Clean Water Act to smaller, headwater streams and wetlands. Support for this policy was strong across the political spectrum, with 77% of Republicans, 79% of Independents and 97% of Democrats in favor.

What are these bills you're talking about and why should I do anything about them?

The first measure the Senate is likely to take up is a bill (S. 1140), misleadingly called the "Federal Water Quality Protection Act," and promoted by Senator John Barrasso (R-WY). I summarized the bill and some of its many flaws when it was considered in committee a few months back. The bill guts the Clean Water Rule, but doesn't stop there. This legislation is an outright assault on pollution protections for a variety of water bodies, is chock full of vague provisions about what can be protected and what can't, throws up a series of procedural obstacles to protecting waters that would make the producers of "American Ninja Warrior" blush, and requires EPA and the Army Corps to undertake analyses that would be time-consuming and costly. In the end, the bill ignores both the legal basis for the rule, and - even more critically - the enormous scientific record on which it is based. In light of these flaws, it's not surprising that a host of law professors [LINK: ltrLawProfs re S1140 pdf.pdf] and scientists [LINK:Scientist Letter Opposing S. 1140.rev.5.28.15.pdf] have urged the Senate to reject this attack.

Oh, and if all that weren't bad enough, it gets worse. Under Senate procedures, if 60 or more Senators vote for the Senate to "proceed" to the bill (which is the action technically to be considered on Tuesday), the entire Clean Water Act is fair game for amendment and attack. That would allow opponents of Clean Water Protection to put forward measures that would repeal the Act's protections against pesticide pollution, as one bill proposes to do; or curtail EPA's authority to stop enormously destructive dumping projects, as another bill would do; or so dramatically roll back the law's coverage that it's barely a law anymore, as yet another Senate bill would do. In other words, it is a Pandora's Box filled with a whole lot of stuff you don't want to be dumping in the nation's waterways.

The second item the Senate will likely consider next week is formally called a "resolution of disapproval," a species of legislation authorized by the Congressional Review Act. This particular one (S.J.Res. 22) was introduced by Senator Joni Ernst (R-IA). Congressional Review Act resolutions target administrative regulations, like the Clean Water Rule, and can move quickly through Congress without being subject to some of the ordinary procedural speedbumps to passage. There are a number of problems with the Dirty Water Resolution, as I like to call it, which are catalogued in a detailed fact sheet [LINK:CWR CRA fact sheet.pdf], but the biggest concern is that because the Congressional Review Act prohibits agencies from doing "a new rule that is substantially the same" as a disapproved rule, that restriction could be read to prohibit EPA and the Army Corps from issuing any rule that establishes protections for waters that the Clean Water Rule protects, like lakes, streams, and wetlands. That would make clarifying the rules - as people on all sides of this issue have urged the agencies to do - essentially impossible.

About the Authors

Jon Devine

Senior Attorney, Water program

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