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Clean Water Act Enforcement Compromised

(Beyond Pesticides, July 11, 2008) According to an internal Environmental Protection Agency (EPA) memorandum, a Supreme Court decision is undermining the agency’s ability to enforce the Clean Water Act (CWA). Two House Committee Chairmen have sent a letter to EPA Administrator Stephen L. Johnson for more information regarding EPA’s enforcement efforts in the wake of the 2006 decision Rapanos et ux., et al. v. United States. The Rapanos decision was split 4-1-4 over the question of Federal protections for waters of the United States, including wetlands, under the Clean Water Act.

In the letter, Chairman James L. Oberstar of the Committee on Transportation and Infrastructure and Chairman Henry A. Waxman of the Committee on Oversight and Reform, explain that information has come to them indicating that enforcement of key clean water programs is faltering.

The memo, obtained by Greenpeace and released by the Congressmen, was sent by EPA Assistant Administrator for Enforcement and Compliance Assurance Granta Y. Nakayama and cites enforcement problems created by the Rapanos case and the subsequent guidance.

In the memorandum, Mr. Nakayama states, “Data collected from the regions shows that a significant portion of the CWA docket has been adversely affected.”

The letter from Congressmen Waxman and Oberstar goes on to quote the Nakayama memo as reporting that some 500 clean water enforcement cases were negatively affected in just nine months as a result of the Rapanos decision and agencies’ guidance, and that EPA dropped enforcement in 300 more cases between July 2006 and December 2007.

“The Committee on Transportation and Infrastructure has held three oversight hearings on the effects of the Supreme Court’s rulings in Rapanos and SWANCC (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 2001),” Rep. Oberstar said. “The Bush Administration has twice testified how it was responding to the uncertainty created by these decisions, but it never once revealed the full extent to which Federal attempts to protect clean water have been undermined. It took the release of an internal EPA document to bring that fact to light.”

“We need vigorous enforcement to protect our nation’s waters,” said Rep. Waxman. “But instead, hundreds of potential violations are being ignored.”

The letter requests that the Administrator provide complete and unredacted copies of all communications relating to the charges presented in the Nakayama memo. The letter further requests answers to a number of questions about EPA’s enforcement processes. It sets a July 21 deadline for the agency’s response.

The Clean Water Act has been an important tool in fighting pesticide poisoning and pollution in the U.S. It has played a roll in a variety of cases, from aerial spraying to mosquito prevention to oyster beds. More recently, EPA has exempted pesticides from CWA’s National Pollution Discharge Elimination System, a decision which was later challenged in a lawsuit.

Source: Washington Post 



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