Friday, October 16, 2009

Recommitting To The Clean Water Act After 37 Years

Oct 15: The House Transportation & Infrastructure Committee, Subcommittee on Water Resources and Environment, Chaired by Representative Eddie Bernice Johnson (D-TX) held a hearing entitled, The Clean Water Act after 37 Years: Recommitting to the Protection of the Nation's Waters. Witnesses testifying at the hearing included: U.S. EPA Administrator Lisa Jackson; and representatives from the: Sandy Hook Waterman’s Alliance; American Nurses Association; Government Accountability Office (GAO); EPA Office of the Inspector General (OIG); Environmental Council of the States; Association of State and Interstate Water Pollution Control Administrators; Environment America; Tulane University and Erb Institute, University of Michigan; Environmental Integrity Project; and a resident of the Town of Luxemburg in Kewaunee County Wisconsin. Full Committee Chair Representative James Oberstar (D-MN) and Representative Johnson both issued opening statements.

Chairman Oberstar opened the hearing stating, "Our charge today is to examine the implementation and effectiveness of the Clean Water Act as it stands in 2009. In doing so, we must distinguish between those goals met and unmet – and explore the reasons why. Nearly two years ago, we gathered in this room to celebrate the 35th Anniversary of the Clean Water Act. That was a hearing of great personal significance to me. As many of you know, I was a staffer on the Committee on Public Works and Transportation when Congress overrode President Nixon’s veto to pass the Clean Water Act into law in 1972."

He continued, "Regrettably, we are faced today with a situation where these elements are incomplete and eroding, and as one might expect, it appears that we are losing ground with respect to the water quality goals of the Clean Water Act. . . I assure you, without an effective enforcement program, run by both the states and EPA, we will not fulfill the central goals of the Clean Water Act."

Representative Oberstar outlined three major questions which he said he would like to have answered: (1) Are we effectively using the tools given to us by the Clean Water Act to achieve our water quality goals? (2) Do we currently have a credible state and federal enforcement program that will help us protect the environment and public health? And, (3) is there a level playing field for environmental compliance – both to ensure fair treatment of facilities covered under the Clean Water Act, as well as to ensure consistent protection of the nation’s waters and public health.

EPA Administrator Jackson used the hearing to announce that the agency is stepping up its efforts on Clean Water Act enforcement. She indicated that the "Clean Water Action Enforcement Plan" is a first step in revamping the compliance and enforcement program. It seeks to improve the protection of the nation’s water quality, raise the bar in Federal and state performance and enhance public transparency. She said, “The safety of the water that we use in our homes -- the water we drink and give to our children -- is of paramount importance to our health and our environment. Having clean and safe water in our communities is a right that should be guaranteed for all Americans. Updating our efforts under the Clean Water Act will promote innovative solutions for 21st century water challenges, build stronger ties between EPA, state, and local actions, and provide the transparency the public rightfully expects.”

EPA's plan outlines how the Agency will strengthen the way it addresses the water pollution challenges of this century. EPA said the challenges include pollution caused by numerous, dispersed sources, such as concentrated animal feeding operations (CAFOs), sewer overflows, contaminated water that flows from industrial facilities, construction sites, and runoff from urban streets. The goals of the plan are to target enforcement to the most significant pollution problems, improve transparency and accountability by providing the public with access to better data on the water quality in their communities, and strengthen enforcement performance at the state and federal levels.

Elements of the plan include the following: (1) Develop more comprehensive approaches to ensure enforcement is targeted to the most serious violations and the most significant sources of pollution. (2) Work with states to ensure greater consistency throughout the country with respect to compliance and water quality. Ensure that states are issuing protective permits and taking enforcement to achieve compliance and remove economic incentives to violate the law. (3) Use 21st century information technology to collect, analyze and use information in new, more efficient ways and to make that information readily accessible to the public. Better tools will help federal and state regulators identify serious compliance problems quickly and take prompt actions to correct them.

Honigman Miller Schwartz and Cohn LLP (Honigman), one of the WIMS Corporate Sponsors, has issued an Environmental Alert providing further details on EPA's Clean Water Action Enforcement Plan. Honigman said, "U.S. EPA’s proposed actions have the potential to change the relationship between state regulators and U.S. EPA, change how permits are written and enforced, and make additional information publicly available." [See link below]

GAO released testimony entitled, Longstanding Issues Impact EPA's and States' Enforcement Efforts (GAO-10-165T, October 15, 2009). GAO said that over the last 9 years it has undertaken a number of reviews of EPA’s environmental enforcement activities, including for the Clean Water Act. GAO said it was asked to summarize the results of five prior reports on the effectiveness of EPA’s enforcement program. Specifically, GAO statement includes information on the (1) factors that cause variations in enforcement activities and lead to inconsistencies across regions, (2) impact that inadequate resources and work force planning has had on enforcement, (3) efforts EPA has taken to improve priority planning, and (4) accuracy and transparency of measures of program effectiveness. GAO said its "prior recommendations have included the need for EPA to collect more complete and reliable data, develop improved guidance, and better performance measures. Although EPA has generally agreed with these recommendations, its implementation has been uneven."

Access the hearing website for an 8-page background document, a webcast and links to all testimony and opening statements (
click here). Access a release from EPA and link to the details of the Clean Water Action Enforcement Plan (click here). Access the Honigman Environmental Law Department website for more information (click here). Access information on becoming a WIMS Corporate Sponsor (click here).