Under pressure from the current presidential administration, the Environmental Protection Agency has embarked on an effort to weaken the Clean Water Act by regulatory fiat.

Washington, DC —When Congress passed the Clean Water Act (CWA) in 1972, it made two things perfectly clear. First, industry is required—at a minimum—to use the best technology it can afford to protect the waterways it uses. Second, outside of a few exceptions, no one may discharge pollutants to a waterway without first obtaining (and complying with) a CWA permit. More than 30 years later, under pressure from a presidential administration that has been largely hostile to environmental regulation, the Environmental Protection Agency (EPA) has embarked on an effort to weaken these rules by regulatory fiat.

In June 2006, EPA issued a notice declining to set standards for cooling water intake structures at existing manufacturing facilities, despite a directive in the CWA to set such standards, and despite the agency’s own findings that such standards would be economically and technologically feasible and would save millions of fish each year.

A few months later, in November 2006, EPA issued a rule that would exempt from the CWA’s permitting requirements the application of pesticides “directly into waters of the United States” or “over, including near, waters of the United States.” This new rule, which represents a wholesale reversal of the position taken by EPA in previous presidential administrations, would allow the discharge of known poisons into the country’s waterways without any CWA oversight.

In both cases, the agency’s justification rests with its own conclusion that the policies mandated by Congress are unwise. In explaining its decision not to issue cooling water standards, for example, EPA cited its desire to avoid “unnecessary regulatory burdens.” This is not EPA’s call to make.

“While the proper scope of surface water regulation clearly is an important policy question,” noted NELC Litigation Director Charles Caldart, “Congress has already answered that question in the Clean Water Act,
and EPA must follow that directive.”

Because of the importance of this issue to the enforcement work to which NELC has long been committed, NELC attorneys have joined with other environmental groups to challenge both of these EPA decisions in court. The cooling water case is now pending before the Fifth Circuit Court of Appeals in New Orleans, while the pesticide case is being heard by the Sixth Circuit Court of Appeals in Cincinnati.

“The key question in each case,” stated NELC’s Caldart, “is whether unelected executive branch appointees may override the legislative policies articulated by the branch of government to whom the Constitution has entrusted the principal responsibility for policymaking. The clear answer, under our system of government, is no.”

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