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This is a highlight story from the current issue of WaterWeek, a weekly e-newsletter provided as a benefit of Utility Membership. Complete issues are accessed via e-mails sent to qualified readers. Waxman, Oberstar assail CWA enforcementTwo house committees lambasted US Environmental Protection Agency over what they called the agency’s failure to adequately pursue clean-water enforcement in the wake of the Rapanos decision and pressed for stronger enforcement in the new administration. In a Dec. 16 letter to President-elect Barack Obama, Oversight and Government Reform Committee Chairman Henry Waxman (D-Calif.) and Transportation and Infrastructure Committee Chairman James Oberstar (D-Minn.) said that their investigation found a dramatic decline in enforcement activity. Citing a review of more than 20,000 pages of USEPA and US Army Corps of Engineers documents, the chairmen said that dozens of pending enforcement actions have become informal responses, with reduced civil penalties and significant delays. Also, many violations are going undetected because of a reduction in investigations, the letter said. “Our investigation reveals that the clean water program has been decimated as hundreds of enforcement cases have been dropped, downgraded, delayed or never brought in the first place,” Waxman said in a statement. “We need to work with the new administration to restore the effectiveness and integrity to this vital program.” The committees also found that concerns from regional USEPA staff went unheeded as unaddressed violations piled up. “In numerous e-mails, memos and other documents, [USEPA] field offices across the country have expressed serious concerns about this negative trend, warning that they are no longer able to ensure the safety and health of the nation's waters,” the letter to Obama said. The chairmen said their investigation indicated that the enforcement decline began with the US Supreme Court's 2006 Rapanos v. United States decision. In that case, the court failed to agree on federal jurisdiction over wetlands under the Clean Water Act, ruling that the Act applies only to “navigable waters.” Acting on that ruling, the chairmen said, the Bush Administration curtailed its Clean Water Act enforcement by defining its jurisdiction more narrowly and ignoring some areas, particularly in the Southwest, where water only flows seasonally. Many of those areas had previously been protected under the act. Waxman and Oberstar first requested and then subpoenaed documents from USEPA and the COE relating to the Clean Water Act enforcement program last summer, after hearing that the Rapanos decision and the administration’s interpretation of it was hurting agency enforcement actions. In the letter to Obama, however, the pair said many of the subpoenaed documents arrived “heavily redacted,” concealing the identities of alleged polluters as well as the specific areas affected. They also accused USEPA of withholding documents in violation of the subpoena. USEPA and the Corps were also taken to task by the chairmen for a revised guidance, issued Dec. 3, which said water bodies would be considered “navigable” only if they are, have been or may be used for commercial navigation. The guidance made exceptions for some waters considered navigable under the Rivers and Harbors Act and waters determined to be navigable by federal court. USEPA officials took exception to the assertions made in the letter. In a statement, Office of Water chief Benjamin Grumbles and Assistant Administrator for Enforcement and Compliance Granta Nakayama said the investigation failed to take into account “the many EPA initiatives underway to provide aggressive enforcement of our Clean Water Act programs.” Their statement also pointed out that in 2008 the agency secured agreements with violators to invest an estimated $3 billion in pollution controls.
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