Clean Water Act enforcement has declined, two House committee chairmen say

Enforcement of the federal Clean Water Act has deteriorated badly under the Bush administration, two US House committee chairman charged on Dec. 16. Violations involving oil spills make up nearly half of the CWA violations which have been detected but not addressed, they added.

Henry A. Waxman (D-Calif.), who chairs the Oversight and Government Reform Committee, and James L. Oberstar (D-Minn.), who chairs the Transportation and Infrastructure Committee, said that new internal documents their committees have received reveal that hundreds of CWA violations have not been pursued with enforcement actions.

A memorandum outlining the results of an investigation by the committees' majority staff said that a June 2006 US Supreme Court ruling in the case Rapanos vs. United States and the Bush administration's 2007 implementation of the decision effectively narrowed the CWA's jurisdiction.

The decision required federal agencies in many cases to go through a time-consuming and resource-intensive process of demonstrating a "significant nexus" to "traditional navigable waters" before they could assert jurisdiction under the CWA, Waxman and Oberstar said in a letter to President-elect Barack H. Obama.

It said that documents obtained by the committees show that multiple US Environmental Protection Agency field offices have reported that their CWA enforcement programs are deteriorating rapidly since that time.

The memorandum cited a Jan. 10, 2008, message to headquarters from EPA's Dallas field office that at least 76 oil spill cases had been confirmed without any follow-up penalties or correction action sought "due to difficulties asserting jurisdiction post-Rapanos."

It said that EPA's Dallas field office further noted that "companies have elected to discontinue [spill prevention, control and counter-measure] protections at multiple locations based on their contention that there is no threat to jurisdictional waterways . . . Certain spill responses that would have merited EPA response action have not been acted upon."

The memorandum also cited an e-mail message to headquarters from EPA's Denver regional office from an official who warned: "We literally have hundreds of [Oil Pollution Act] cases in our 'no further action' file due to the Rapanos decision, most of which are oil spill cases . . . Again, we do have a file with well over 100 cases held due to Rapanos."

The actual problems may be worse than messages from those and other EPA regional offices describe, Waxman and Oberstar said. EPA withheld hundreds of documents from the committees and redacted the identifies of every corporation or individual as well as specific affected waters in material that the agency supplied, the two House committee chairmen said.

"As you assemble your new environmental team and develop your agenda for next year, we would like to work with you in a cooperative manner to restore the integrity and effectiveness of a program that is vital to the health and environment of the American people," they told Obama.

Contact Nick Snow at nicks@pennwell.com

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