By James Goodwin, Center for Progressive Reform
This afternoon, the Fisheries, Water, and Wildlife Subcommittee of the Senate Environment and Public Works Committee will convene a hearing on a topic that is fast becoming the congressional conservative equivalent of talking about the weather: the Environmental Protection Agency’s (EPA) Clean Water Rule.
With the provocative title of “Erosion of Exemptions and Expansion of Federal Control – Implementation of the Definition of Waters of the United States,” the hearing is unlikely to provide a sober or thoughtful forum for evaluating the rule’s merits. Nevertheless, Center for Progressive Reform Member Scholar Bill Buzbee, who has been tracking this critical safeguard for several years, will do his best to keep the proceedings grounded in reality by offering testimony that rebuts the many “legally and factually erroneous” attacks that are now frequently made against the rule.
Corporate polluters and their allies in Congress have a knack for conjuring controversy out of thin air, and their campaign against the Clean Water Rule is a prime example. Once all the histrionics and hyperbole have been stripped away, what’s left is a relatively straightforward and uncontroversial act of good government.
Drafted in response to a series of muddled U.S. Supreme Court decisions, the rule seeks to do little more than clarify – based on updated scientific understanding – those water systems that receive automatic protection under the Clean Water Act. For years now, too many critical water systems, including wetlands and smaller water bodies that are integral to the health of larger navigable waters, have been caught in a legal gray area, requiring case-by-case jurisdictional determinations that waste scarce EPA resources and create needless confusion and uncertainty for affected businesses. The rule seeks to narrow that gray area, clearly defining which waters fall within the Clean Water Act and which do not.
Through the political alchemy of twisted facts and perverted logic, the rule’s opponents now seek to misrepresent it as an alarming example of “regulatory overreach and expansion.”
To respond to this misrepresentation, Professor Buzbee’s testimony makes the following six points:
- “The extent of federally protected waters matters to far more than just wetlands regulation and explains the longstanding protective federal bipartisan consensus.”
- “The new ‘waters of the United States’ regulation is an appropriate response to the Supreme Court’s recent cases.”
- “The Clean Water Rule makes newly explicit several categories of activities or waters not subject to federal jurisdiction.”
- “The Army Corps and EPA in the Clean Water Rule deleted the longstanding ‘other waters’ commerce-linked sweep-up provision, instead basing federal jurisdiction on science and thereby limiting federal power.”
- “The Clean Water Rule links to a massive survey of peer-reviewed science about waters’ connectivity, values and function and thereby responds to the most prevalent criticism of ‘waters’ federal jurisdiction and puts all on notice.”
- “Because an unpermitted discharge of a pollutant is a central prerequisite for Clean Water Act liability, not ordinary uses of lands and waters, surprise liability should be rare.”
Professor Buzbee closes his testimony by calling on the subcommittee members to “avoid criticisms rooted in misunderstandings about the law and content of the new Clean Water Rule.” Let’s hope this call is heeded.