Help Us Protect Clean Water!!

Protecting America’s Clean Water Legacy

The U.S. Senate Must Reject the Barrasso-Heller Amendment to H.R. 2354.

Clean water matters.  From the small stream your kids wade in to the marsh where you set up your duck blind, America’s water resources are an invaluable part of our nation and our economy, but many of them are threatened today. Headwater and irregularly flowing creeks, brooks, and streams make up over half the river miles in the continental United States and contribute to the drinking water of roughly 117 million people. Wetlands filter polluted water, reduce the risk of flooding, and provide important wildlife habitat. Sadly, the law that has long protected these water bodies from unregulated pollution, filling and destruction—the Clean Water Act—has been under assault in recent years.  The latest such attack is an amendment to be offered by Senators Barrasso (R-WY) and Heller (R-NV) on a spending bill the Senate will consider for the Army Corps of Engineers, which would kill a good government initiative to clear up what kinds of waters the law protects.   The U.S. Senate must act to stop the rollback of protections that keep our water clean and oppose the Barrasso-Heller Amendment to the Fiscal 2012 Energy and Water Appropriations bill (H. R. 2354).


Call your Senator today and tell the to oppose the Barrasso-Heller Amendment to the Fiscal 2012 Energy and Water Appropriations bill (H. R. 2354).

Background
Congress passed the Clean Water Act in 1972, guaranteeing that all of the Nation's waters would be covered by a suite of pollution control programs.  In 2001 and 2006, Supreme Court decisions created uncertainty about whether certain kinds of waters are protected by the law, especially ones that are geographically "isolated" from others or ones that lack permanent flow.  Moreover, agency “guidance” issued under President George W. Bush further limited pollution control officials’ ability to protect waters, making the law difficult, time consuming, and expensive to implement for many waters.
Litigation over whether the CWA protects specific tributaries and wetlands is rampant, and the court decisions thus far have dealt with the new decision inconsistently. Hundreds of enforcement actions have been adversely affected by the legal uncertainty.

The Dirty Water Rider
This intolerable uncertainty is fixable.  The Supreme Court decisions not only allow EPA and the Army Corps of Engineers to clarify the coverage of the law – they encourage it.  These agencies recently attempted to do this by drafting and seeking public input on new guidelines to help clarify whether and under what circumstances the Clean Water Act applies to rivers, lakes, marshes, streams, and more.  The agencies also stated their intentions to develop, via rulemaking, more formal criteria to guide agency decisions.  


The Barrasso/Heller Amendment seeks to block not only the draft agency guidance but any future rulemaking from EPA and the Army Corps on the matter – and it does so indefinitely.  Specifically, the Barrasso/Heller Amendment prohibits any funds from ever being used by the Army Corps of Engineers to “develop, adopt, implement, administer, or enforce a change or supplement to” various rules and guidance documents.   What this means is that unless and until Congress changes the law, the Army Corps would be permanently prohibited from clarifying its rules defining what waters are protected by the Clean Water Act, or changing a pair of policy memoranda that EPA and the Corps issued during the Bush administration – memos that have had the real-world effect of denying Clean Water Act coverage to countless streams and wetlands.  This attack undermines the original intent of the Clean Water Act.  Opposing the EPA and Army Corps efforts for further clarity is no different than opposing the Clean Water Act itself.  Blocking the Army Corps’ and EPA’s efforts risks years of further litigation and inconsistent decisions in the courts.  Such ambiguity means that numerous waters will be destroyed or polluted.  Please oppose the Barrasso/Heller Amendment to H.R. 2354.

By the Numbers: Quantifying the Threat
•    Based on government estimates, roughly 20 percent of the more than 100 million acres of wetlands in the continental U.S. are considered "isolated."  Nearly 60 percent of the stream miles outside of Alaska – just about two million miles – do not flow year-round.
•    EPA conducted an analysis of drinking water supplies that rely on small and non-perennial streams.  It found that approximately 117 million people in the lower 48 states “get some or all of their drinking water from public drinking water systems that rely at least in part on intermittent, ephemeral or headwater streams.”
•    The New York Times reported that, because of the problems unleashed by the Supreme Court, “[c]ompanies that have spilled oil, carcinogens and dangerous bacteria into lakes, rivers and other waters are not being prosecuted, according to Environmental Protection Agency regulators working on those cases, who estimate that more than 1,500 major pollution investigations have been discontinued or shelved in the last four years.”
•    After analyzing available information about important industrial and municipal pollution sources (those with individual permits from the state or EPA), “EPA estimate[d] that over 40% of the 37,000 permits with locational data discharge into either start reaches or intermittent/ ephemeral streams, excluding Alaska.”

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