How and Why Clean Water Protections Are Being Weakened

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Since passage of the Clean Water Act in 1972, we have made great progress in cleaning up our nation’s waters. Butover the past decade, longstanding protections have been rolled back and the Clean Water Act, considered one of the country’s most successful environmental laws, is now failing to protect all of America’s waters.

The Clean Water Act, as written in 1972, safeguards all of the "waters of the United States," through a number of programs. The federal Environmental Protection Agency (EPA) and Army Corps of Engineers (ACE) regulations implementing the law have for decades reflected the intent of Congress to protect all of America’s waters. These rules had been upheld by the vast majority of state and federal courts. In 2001, however, a bare majority of the Supreme Court—in a case called Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC)—ruled 5-4 that the presence of a habitat for migratory birds is not sufficient justification for protection of a water that does not flow year round or that is an "isolated" wetland under the Clean Water Act. In 2006, the decision in Rapanos v. United States (Rapanos) further confused how the Clean Water Act was understood and which waters deserved protection under the Clean Water Act.

These two court decisions created an opening for Bush Administration officials to give in to special interests on a decades-long effort to weaken implementation of the law. EPA and the Army Corps rejected overwhelming support for protecting all the waters of the United States and directed their field staff to stop applying Clean Water Act protections to many waters.

Result: America’s Waters At Risk

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Two important "Guidance" documents from EPA and the ACE are the foundation for decisions that continue to threaten many water bodies. The first "Guidance" went into effect in 2003, immediately impacting regional EPA and ACE permitting decisions. The 2004 report, Reckless Abandon: How the Bush Administration is Exposing America’s Waters to Harm, documented how entire water basins, streams, wetlands, rivers and lakes across America have been put at risk. Waters losing Clean Water Act protections include 20 million acres of wetlands, 60 percent of all streams, including headwater, intermittent, and ephemeral streams that supply public drinking water systems that serve 117 million Americans – 5,646 public water supply systems.

More than 40% of facilities (14,800) with Clean Water Act National Pollution Discharge Elimination System (NPDES) permits discharge into small or intermittent streams. Dredging or filling streams, and draining and filling wetlands, can cause or exacerbate flooding downstream with significant public safety and economic implications. A single acre of wetland can store 1 to 1.5 million gallons of flood water. Wetlands in the continental United States save an estimated $30 plus billion in annual flood damage repair costs. EPA reports that it cost $1.5 million annually to replace the natural flood control functions of a 5,000 acre tract of drained Minnesota wetlands.

A March 2008 memorandum from the EPA’s Office of Enforcement and Compliance Assurance (OECA) revealed that enforcement decisions, not just permitting processes, were being affected by the new policies. The memo was revealed during hearings of the House Government Oversight Committee. Hundreds of Clean Water Act enforcement cases have either been dropped completely or made lower priorities.

According to the OECA’s memo, "a significant portion of the Clean Water Act enforcement docket has been adversely affected." Between July 2006 and December 2007, the agency made a conscious decision not to pursue enforcement of more than 300 Clean Water Act violations because of the jurisdictional uncertainty created by the Rapanos decision and the "Guidance". In another 147 cases, the priority of an enforcement action was lowered due to uncertainty about whether the waters remained under the Clean Water Act. On top of that, polluters in enforcement actions raised the lack of Clean Water Act jurisdiction as an affirmative defense in 61 other cases. In sum, over 500 enforcement cases were affected during this time period.

Today: Confusion, Delay and Disarray

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Federal courts are struggling to determine how to implement the Supreme Court’s decisions, resulting in conflicting decisions and uncertain standards in different parts of the country. The Supreme Court recently ducked the government’s request to clarify the applicable standards, notwithstanding one district court judge’s assessment of the Rapanos decision: "I will not compare the ‘decision’ to making sausage because it would excessively demean sausage makers."

Confusion over Clean Water Act jurisdiction has led to delays in permitting decisions. Under new rules put into place by government regulators, permit applicants must complete a 12-page form. To figure out that form, applicants have to study an 86-page instruction booklet. The Corps of Engineers says that this increases the time it takes to get a permit by up to three months. This confusion can cause unnecessary delay and cost for routine projects that require permits.

Solution: Administrative and Congressional Action

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In April 2011, the U.S. EPA and Army Corps of Engineers issued draft guidance to clarify which streams, wetlands and other waters are protected by the Clean Water Act.  The Agencies received over 230,000 public comments on the draft guidance; most of them were overwhelmingly in support of protecting streams, wetlands, rivers, and other waters from pollution and destruction. 

Once finalized, this new guidance will replace the 2003 and 2007 Bush Administration guidelines.  The guidance will also reduce confusion and uncertainty by helping agency staff to more clearly identify and protect small streams and wetlands that are vital parts of our water infrastructure. Because much of the permitting and enforcement confusion has resulted from EPA action in the past, this is a good first step. Clean Water Action supports expedited action by EPA to move this process forward in 2012.

More Information:
Jennifer Peters, National Water Campaigns Coordinator
202-895-0420 ext. 105
Darrell Gerber, Program Coordinator
612-623-3666 ext. 530
Lynn Thorp, National Campaigns Director
202-895-0420 ext. 109