Senate Panel Debates State Role in Clean Water Efforts

WASHINGTON (CN) – A Senate panel on Wednesday debated whether it should do away with 30-year-old groundwater standards, and what role states should play going forward in regulating contamination.

Under the Clean Water Act, it is illegal to discharge pollution into any “waters of the United States” without first seeking a permit from the Environmental Protection Agency.

Last month, the Ninth Circuit, in deciding  Hawai’i Wildlife Fund v. County of Maui, upheld the EPA’s authority to regulate groundwater pollution.

The underlying case challenged Maui’s practice of injecting up to 5 million gallons of sewage water into the ground each day. The appeals court found that because the injected wastewater flowed underground into the Pacific Ocean, the injection required compliance with the Clean Water Act.

The decision rankled Senate Republicans, many of whom have indicated they want to dramatically curtail the EPA’s authority over such issues.

Among the most vocal on Wednesday was Sen. John Barrasso, R-Wyo., who characterized the Ninth Circuit ruling as an example of federal overreach and not, so-called “cooperative federalism,” an ideology espoused by EPA Administrator Scott Pruitt.

As described by Pruitt in several public speeches, as he strives to reduce the size and scope of the EPA’s responsibilities, “cooperative federalism” would allow states and local governments to take a larger role in regulating pollution.

Barrasso said the Ninth Circuit ruling flies in the case of that philosophy and was based on a “misguided theory.”

By the court’s reasoning, the senator said, any American with a septic tank in their backyard could require a federal discharge permit.

“That isn’t what Congress intended,” Barrasso said. “The need for permits could jump up more than 200,000-percent [in a place like Arizona]. That’s 282,870 septic systems in that state that could become federally regulated.”

But relying on this hypothetical does a disservice to legislation that has been largely and successfully enforced since 1972, said Sen. Tom Carper, a Delaware Democrat.

What his Republican colleagues really want, Carper said, is to pare back the language of the Clean Water Act, and allow polluters to act with impunity.

“The rules have been perfectly clear. Crystal clear,” he said. “If pollution travels from a defined point source, like a coal ash pond, to surface water, through groundwater, then the Clean Water Act regulates that pollution. Even [Supreme Court Justice Antonin Scalia] agreed in Rapanos v. United States.

In Rapanos, Scalia found that the Clean Water Act “does not forbid the addition of any pollutant directly to navigable water to any point source but rather the addition of any pollutant to navigable waters.”

Scalia also found that discharge into “intermittent channels of any pollution that naturally washes downstream violates [the Clean Water Act] even if the pollutants discharge from a point source does not emit directly into covered waters but pass through conveyances.”

“If the EPA is willing to rely on Scalia’s majority opinion about what constitutes the waters of the United States,” Carper said, “The EPA should surely agree with [Scalia] on this point too. This is not a real legal struggle when the law is so clear.”

Amanda Waters, general counsel for the National Association of Clean Water Agencies, sided with committee Republicans Wednesday.

Like, Barasso, Waters said the Clean Water Act is flawed, and better legislation, such as the Safe Drinking Water Act, already exists.

But Capers said the Clean Water Act is far more comprehensive, and is supported by decades of case law.

Since his appointment, EPA administrator Scott Pruitt has actively attempted to limit the scope of the Clean Water Act, but but Frank Holleman III, the senior attorney at the Southern Environmental Law Center, told the committee Pruitt “can’t change the law” on his own, and the law has been clear since the Carter administration.

“He would be acting lawlessly if he did anything otherwise,” Holleman said.

Legal challenges to the Clean Water Rule are already sapping resources of states and cities that choose to go up against big polluters, he explained.

Believing enforcement of the Clean Water Rule, when left to states alone, would result in better outcomes or cleaner water is foolish, Holleman said.

“States know they don’t have power and resources to go against these big entities with their lawyers and consultants if they get into a real fight. So often times, the big polluters are allowed to continue.  But my cousin, with a gas tank in his back yard, he’ll be sure to have to pull that out of the ground,” he said.

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