Clean Water Act: Overreach or Clean Beach?
In the 1960s, the Cuyahoga River caught fire and Lake Erie was pronounced dead. These were just some of the atrocities facing U.S. waters that caused Congress to pass the bipartisan Clean Water Act more than 40 years ago.
The act protects our country’s vast water resources from sewage, pollution, and other toxins and in doing so provides a definition identifying the “waters of the United States” that are protected under law. In 2015, the Obama administration increased Environmental Protection Agency protections in their final rule Clean Water Rule: Definition of Waters of the United States (commonly referred to as WOTUS) .
Advocates see WOTUS as providing additional, needed environmental protections to U.S. waters, while critics describe the rule as a Washington power grab. WOTUS has been highly contentious and hotly debated. The Senate Environment and Public Works Subcommittee on Fisheries, Wildlife and Water continued this debate with a hearing on the implementation of the definition of “waters of the United States.” According to Chairman Dan Sullivan (AK), “We all believe in the need for clean water, and we all believe in the need for clean air,” but he disagreed with the agency expanding its role without congressional approval. Ranking Member Sheldon Whitehouse (RI) showed his approval for WOTUS, noting the environmental successes of the program and wide-spread constituent support. Chairman Sullivan countered that 34 states have sued the U.S. government over the rule, suggesting the support may not be ubiquitous.
Witnesses Mr. Don Parrish (Senior Director, Regulatory Relations, American Farm Bureau Federation), Mr. Damien Schiff (Principal Attorney, Pacific Legal Foundation), and Ms. Valerie L. Wilkinson (Chief Financial Officer, EGS Companies, on behalf of National Association of Homebuilders) shared localized examples of environmental protections afforded under WOTUS hindering building projects. However, law professor William W. Buzbee (Georgetown University Law Center) reminded the committee, “Federal policy should never be based on a story but [rather] on an assessment of how a regulatory program works over all.” He stated that the Clean Water Act and WOTUS are “well grounded in law and science” and suggested that regulations do not significantly hinder building projects, since only one to two percent of building permits submitted to the Army Corps of Engineers are rejected, due to conflicts with waterways. Committee members and witnesses at the hearing did not see eye-to-eye on WOTUS or its implementation, though the Clean Water Act has certainly made giant steps toward ensuring that our nations’ water ways are healthy and safe.