Clean Water Act beached by Congress

by Paul Blackburn and Kari Gray

he Clean Water Act is the only law that protects all of our coastal waters, wetlands, lakes and rivers from pollution and destruction. It sets limits on what amounts and what types of discharges industry and municipalities can dump in our waterways. It is also the only law that protects wetlands from total destruction. A strong Clean Water Act is crucial to protecting a healthy aquatic environment and a healthy way of life that provides clean water for fishing, swimming and drinking.

In 1972, Congress passed the first Clean Water Act and set out three main goals: zero discharge, fishable and swimmable waters and no toxics in toxic quantities. We have not yet met these goals.
This year, the Clean Water Act is due for "reauthorization." But the news from Congress is bleak. Representative Bud Shuster of Pennsylvania, who chairs the Committee on Transportation and Infrastructure, wants to gut the existing Clean Water Act.

A good reauthorization bill would maintain our current level of protection and improve protection by:

Controlling polluted runoff, the largest remaining source of water pollution.
Strengthening enforcement and citizen's right-to-know. We need "posting" requirements to warn swimmers and anglers away from polluted waters.
Strengthening the National Estuary Program (NEP) so that polluted fisheries can be cleaned up and coastal economies restored.
Phasing out the certain highly toxic chemicals including chemicals that cause reproductive disorders, cancer and birth defects.

But Chairman Shuster has already demonstrated his intent to severely weaken the Clean Water Act: Rep. Shuster and Rep. Hayes of Louisiana wrote a legislative proposal in May 1994 that outlined their intent to stop protecting wetlands and to allow more pollution into our nation's waters.
The Shuster/Hayes proposal would weaken current protection in many ways:

Currently, the level of toxic contamination in a river or lake that is considered "acceptable" is based on public health needs. The Shuster/Hayes bill would allow the EPA and the states to "balance" a polluter's economic situation against public health, thereby giving bureaucrats free reign to play politics with health. Even more alarming - they wouldn't need to warn people who swim or fish in the resulting pollution.

The proposal's watershed planning section could be used to allow point source dischargers, including industries and wastewater treatment facilities, to decrease their efforts to abate pollution.
Wetlands would have almost no real protection from developers and oil companies that want to fill or drain them for profit. Currently, only 3 percent of wetlands development permit applications to the Corps of Engineers are denied. Under this draft, guidelines would be weakened even further, making refusal even more unlikely.

Current enforceable requirements to reduce polluted runoff in coastal areas (under the 1990 Coastal Zone Management Act) would cease to be enforceable.

All take, no give

Through a controversial interpretation of "takings," the bill would make taxpayers pay for the costs of pollution control. In practical effect, this means that the costs of pollution control wouldn't be passed on to the consumer of a good or service, but onto all taxpayers through the log jam of tax-and-spend-bureaucracy.

The Fifth Amendment provides that the government may not "take" private property for public use without "just compensation." Thus, when federal, state or local governments need land to build highways, dams, airports, etc., they must buy such land from private landowners. When the government and the landowner are not in agreement on the purchase, the courts come in to resolve the issue. If it is determined that the government needs the land to protect the public interest, then the government may "take" the land, and the courts determine a fair price to be paid to the landowner.

The U.S. Supreme Court has consistently maintained this position, but has also held that private landowners have a duty to refrain from using their land in a manner which would cause injury to neighboring landowners or the general public. Therefore, "uses" of land can be regulated without constituting a "taking," which must be compensated under the Fifth Amendment.
If this fundamental legal principle is overturned by the Shuster bill, each of the following scenarios become possible:

The Clean Water Act requires a factory to clean up its discharges so downstream property owners do not suffer from the pollution. By the property right's movement's argument, the factory's owners have the right to pollute unless the government is willing to pay them to stop.
A town council passes a zoning code to prevent heavy industry from locating in a residential neighborhood. According to the "takings" advocates, since a property owner might make more money by selling lots for industrial development than for houses, the town would either have to compensate the land-owner for difference in price or invalidate its zoning laws.

A bill to reauthorize the Clean Water Act was introduced by Chairman Shuster (R-PA) the first week of February. Call or write Rep. Shuster by the end of March to let them know that the Clean Water Act needs to be stronger and more enforceable, not another way for polluters to circumnavigate their responsibilities to the planet. Rep. Shuster can be reached at:

Committee on Transportation
and Infrastructure
US House of Representatives
Room 2165 Rayburn House
Office Building
Washington, DC 20525
(202) 624-9357

For more information about the Clean Water Act, contact one of the following organizations:

Clean Water Network
1350 New York Avenue, NW, Suite 300
Washington, DC 20005
(202) 624-9357
The Clean Water Network, a coalition of over 500 environmental, religious and public interest organizations working collectively to strengthen the Clean Water Act.

American Oceans Campaign
725 Arizona Avenue, Suite 102
Santa Monica, CA 90401
(310) 576-6162