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Forty years after the Clean Water Act : is it time for the states to implement section 404 permitting? : hearing before the Subcommittee on Water Resources and Environment of the Committee on Transportation and Infrastructure, House of Representatives, One Hundred Twelfth Congress, second session, September 20, 2012.
Forty years after the Clean Water Act : is it time for the states to implement section 404 permitting? : hearing before the Subcommittee on Water Resources and Environment of the Committee on Transportation and Infrastructure, House of Representatives, One Hundred Twelfth Congress, second session, September 20, 2012.
"The fortieth anniversary of the Clean Water Act is an opportunity to look back at the major advances in water pollution control that have been achieved because of the passage of the Clean Water Act. This work will examine the political and scientific developments that led to the Act's construction and passage. This work will also address the continuing problems with controlling water pollution, particularly involving nonpoint source pollution, and new steps that are being taken with the Clean Water Act to control it"--Leaf iv.
In 1972, a bi-partisan Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” Almost fifty years have passed since Congress enacted the law and, during that time, the Supreme Court has played a significant role in the administration and evolution of the law. Since the dawn of the environmental era in the 1970's, the Supreme Court has heard more cases involving the Clean Water Act than any other environmental law. However, the manner in which the Court has analyzed the law has changed substantially over the last half century. This article reviews the shift in the Court's interpretation of the Act ver time. A review of the thirty cases that the Court has heard that involve statutory interpretation of the Clean Water Act show that the Court, during the early years of the law, focused heavily on legislative history and the purpose of the law in Section 101(a) and interpreted the law to carry out that purpose. Over time, though, the Court adopted a more textualist approach to interpreting the Clean Water Act and, beginning with the Rehnquist Court, the Court began to focus on protecting States' rights. In contrast to the Court's early opinions, opinions from the past few decades do not generally discuss the water quality protection purposes of Section 101(a) of the Clean Water Act. Instead, to the limited extent that the Court focuses on purposes of the law, it cites language in Section 101(b) of the law that discusses a Congressional policy to preserve and protect States' rights. A review of the Court's Clean Water Act cases also shows that, as the Court has moved to a more textualist approach to statutory interpretation, it has become more ideologically divided and the outcomes of the cases are more frequently those that could be characterized as anti-environmental. In addition, while early Supreme Court Clean Water Act decisions often adopted a rhetorical tone sympathizing with the government's efforts to advance public rights with limited resources, more recent decisions tend to adopt a tone of skepticism or even hostility toward government regulation.The shift in the Supreme Court's interpretation of the Clean Water Act is troubling because it coincides with Congressional disengagement in oversight of the law. In the first few decades after the Clean Water Act was enacted, Congress was vigilant in responding to Supreme Court and lower court interpretations of the law, and frequently legislated to affirm or overturn those interpretations. That is no longer the case, either for the Clean Water Act or most other environmental laws. If the Supreme Court adopts an interpretation of the law that conflicts with the water quality protection goals and purposes of the law, Congress is no longer likely to step in to correct the Court's mistake. The lack of concern demonstrated by the Supreme Court and Congress toward interpreting and applying the Clean Water Act to meet the Section 101(a) goals to protect water quality could be counterbalanced to some degree by aggressive implementation of the law by EPA and the U.S. Army Corps of Engineers to carry out those goals. Chevron deference to the agencies' interpretations of the law could provide a minor bulwark against the erosion of the law. However, courts are increasingly finding ways to avoid applying Chevron to agency decisions. Even if courts continued to aggressively apply Chevron to agency actions, though, deferring to the actions that the EPA and the Corps have taken over the past few years would not advance the water quality protection goals of the Clean Water Act because the agencies have increasingly emphasized the protection of States' rights policy of the law in Section 101(b) in their decision-making at the expense of the water quality protection goals of Section 101(a). The agencies' recent navigable waters protection rule and EPA's policy reversal regarding discharges to groundwater in the County of Maui, Hawaii v. Hawaii Wildlife Fund case are just a few examples of the agencies' policy shift.
In conjunction with the 50th anniversary of the creation of the Environmental Protection Agency, this book brings together leading scholars and EPA veterans to provide a comprehensive assessment of the agency’s key decisions and actions in the various areas of its responsibility. Themes across all chapters include the role of rulemaking, negotiation/compromise, partisan polarization, judicial impacts, relations with the White House and Congress, public opinion, interest group pressures, environmental enforcement, environmental justice, risk assessment, and interagency conflict. As no other book on the market currently discusses EPA with this focus or scope, the authors have set out to provide a comprehensive analysis of the agency’s rich 50-year history for academics, students, professional, and the environmental community.
AS ALEX PRUD’HOMME and his great-aunt Julia Child were completing their collaboration on her memoir, My Life in France, they began to talk about the French obsession with bottled water, which had finally spread to America. From this spark of interest, Prud’homme began what would become an ambitious quest to understand the evolving story of freshwater. What he found was shocking: as the climate warms and world population grows, demand for water has surged, but supplies of freshwater are static or dropping, and new threats to water quality appear every day. The Ripple Effect is Prud’homme’s vivid and engaging inquiry into the fate of freshwater in the twenty-first century. The questions he sought to answer were urgent: Will there be enough water to satisfy demand? What are the threats to its quality? What is the state of our water infrastructure—both the pipes that bring us freshwater and the levees that keep it out? How secure is our water supply from natural disasters and terrorist attacks? Can we create new sources for our water supply through scientific innovation? Is water a right like air or a commodity like oil—and who should control the tap? Will the wars of the twenty-first century be fought over water? Like Daniel Yergin’s classic The Prize: The Epic Quest for Oil, Money & Power, Prud’homme’s The Ripple Effect is a masterwork of investigation and dramatic narrative. With striking instincts for a revelatory story, Prud’homme introduces readers to an array of colorful, obsessive, brilliant—and sometimes shadowy—characters through whom these issues come alive. Prud’homme traversed the country, and he takes readers into the heart of the daily dramas that will determine the future of this essential resource—from the alleged murder of a water scientist in a New Jersey purification plant, to the epic confrontation between salmon fishermen and copper miners in Alaska, to the poisoning of Wisconsin wells, to the epidemic of intersex fish in the Chesapeake Bay, to the wars over fracking for natural gas. Michael Pollan has changed the way we think about the food we eat; Alex Prud’homme will change the way we think about the water we drink. Informative and provocative, The Ripple Effect is a major achievement.
This volume explores the issues associated with the complex subject of water quality protection in an assessment of the successes and failures of the Clean Water Act over the past twenty years. In addition to examining traditional indicators of water quality, the authors consider how health concerns of the public have been addressed, and present a detailed examination of the ecological health of our waters. Taken together, these measures present a far more complete and balanced picture than raw water quality data alone. As well as reviewing past effectiveness, the book includes specific recommendations for the reauthorization of the Act, which is to be considered by Congress in 1995. This balanced and insightful account will surely shape the debate among legislative and policy experts and citizen activists at all levels who are concerned with issues of water quality.
The Mississippi River is, in many ways, the nation's best known and most important river system. Mississippi River water quality is of paramount importance for sustaining the many uses of the river including drinking water, recreational and commercial activities, and support for the river's ecosystems and the environmental goods and services they provide. The Clean Water Act, passed by Congress in 1972, is the cornerstone of surface water quality protection in the United States, employing regulatory and nonregulatory measures designed to reduce direct pollutant discharges into waterways. The Clean Water Act has reduced much pollution in the Mississippi River from "point sources" such as industries and water treatment plants, but problems stemming from urban runoff, agriculture, and other "non-point sources" have proven more difficult to address. This book concludes that too little coordination among the 10 states along the river has left the Mississippi River an "orphan" from a water quality monitoring and assessment perspective. Stronger leadership from the U.S. Environmental Protection Agency (EPA) is needed to address these problems. Specifically, the EPA should establish a water quality data-sharing system for the length of the river, and work with the states to establish and achieve water quality standards. The Mississippi River corridor states also should be more proactive and cooperative in their water quality programs. For this effort, the EPA and the Mississippi River states should draw upon the lengthy experience of federal-interstate cooperation in managing water quality in the Chesapeake Bay.