Statement of The Honorable James L. Oberstar
October 15, 2009
Good morning and welcome to today’s hearing. This hearing, held to mark the 37th year since passage of the Clean Water Act, is an appropriate time to reflect on the progress that has been made, and also provides us with an opportunity to evaluate the shortcomings of the Act. Our charge today is to examine the implementation and effectiveness of the Clean Water Act as it stands in 2009. In doing so, we must distinguish between those goals met and unmet – and explore the reasons why.
Nearly two years ago, we gathered in this room to celebrate the 35th Anniversary of the Clean Water Act. That was a hearing of great personal significance to me. As many of you know, I was a staffer on the Committee on Public Works and Transportation when Congress overrode President Nixon’s veto to pass the Clean Water Act into law in 1972. During the 2007 hearing I applauded the steps that had been made in improving our nation’s water quality.
However, the 35th Anniversary hearing was not entirely a celebration. I noted then that nearly two-thirds of our nation’s waters met water quality goals as established by the Act, but that, sadly, 35 years after adoption of the Act, one-third of the nation’s waters remained impaired. This was not an acceptable assessment then, and I regret to inform you that the assessment for today’s hearing is even more alarming.
Stories of success achieved through the Act are abundant. However, these successes came at a time when our nation’s waters were bubbling with phenols and untreated sewage and their impairment was much more evident. The challenges facing us today are very different than those of the past.
No longer is there a threat of the Cuyahoga River bursting into flames. No longer do we see the Tidal Basin, merely a few hundred feet from the Nation’s Capitol, bubbling and foaming over with raw sewage and toxic waste. Today, the issues affecting the protection and restoration of our nation’s waters are increasingly difficult to identify and to address – but still malevolent in their effects on the Act’s public health and environmental goals.
The Act’s effectiveness rests on three distinct elements. First, sound science and technology must guide the establishment of national discharge standards that are sufficient to protect water quality. Second, adequate funding must be dedicated to the implementation of clean water technologies and provide for strong State clean water programs. Finally, a strong enforcement program is necessary to ensure consistent and effective implementation of the Act.
In order to effectively implement this framework, the EPA and the states must work in close partnership.
Regrettably, we are faced today with a situation where these elements are incomplete and eroding, and as one might expect, it appears that we are losing ground with respect to the water quality goals of the Clean Water Act.
Over the past decade I have expressed concern that progress in improving overall water quality has slowed. However, it is becoming clearer that the actions of the Bush Administration completely undermined the nation’s progress in protecting water quality, and has left us with the challenge of rebuilding our Clean Water program from the ground up. Between 2001 and 2009, this Committee issued numerous reports criticizing the prior Administration for cutting Federal and State resources to implement the Clean Water Act, and for the EPA failing to provide a credible Clean Water Act enforcement program.
The Committee documented time and time again numerous cases where reduced funding for Clean Water Act programs directly affected the water quality programs of the States. Similarly, a joint memorandum issued in late 2008 by myself, and Chairman Waxman of the Committee on Oversight and Government reform detailed the drastic deterioration of EPA’s enforcement program during the Bush Administration.
Simply put, the deterioration of the Clean Water Act enforcement program has set back our progress in achieving the central goals of the Clean Water Act.
On September 13th of this year, the New York Times ran a front page story detailing the systemic failure by Federal and State governments to enforce the Clean Water Act. These findings are significant and alarming. The New York Times found “that fewer than 3 percent of Clean Water Act violations resulted in fines or other significant punishments by state officials,” and that “unchecked pollution remains a problem in many states.”
As I said when I was interviewed for this story, “EPA and the states have dropped the ball,” and average Americans are now vulnerable to harmful contaminants as a result.
Administrator Jackson, from whom we will hear greatly anticipated testimony, has promised to right the wrongs of the previous Administration. The Administrator recently issued a memorandum to her staff outlining a framework for the improvement of federal enforcement of the Clean Water Act.
In this memorandum, Administrator Jackson wrote the following: “Data available to EPA shows that, in many parts of country, the level of significant non-compliance with permitting is unacceptably high, and the level of enforcement activity is unacceptably low.”
I, too, find both of these circumstances unacceptable and it is regrettable that the consequences of these failures may have directly contributed to the harms felt by some of our witnesses today.
I assure you, without an effective enforcement program, run by both the states and EPA, we will not fulfill the central goals of the Clean Water Act.
As I noted earlier, resources certainly are an issue. Over the past eight years, funding for both the states and the Agency was slashed. As part of this federal-state partnership we must provide more resources. However, the Clean Water program’s poor enforcement track record cannot just be a reflection of funding cycles. For the sake of public health and the environment, we cannot blithely accept robust enforcement in times that are flush and diminishing responses to violations in times that are lean.
In addition, there is simply too much variation in enforcement responses – or the lack thereof – towards the most serious of violations. Some states and EPA regions have abysmal records of significant non-compliance, and a lack of effective response to these. Administrator Jackson, I look to you to begin taking the management steps necessary to protect our water, our public health, and our environment by improving oversight of the states, and reducing the surprising variance of noncompliance region by region.
For me, there are three major questions that I would like to have answered during this hearing: Are we effectively using the tools given to us by the Clean Water Act to achieve our water quality goals? Do we currently have a credible state and federal enforcement program that will help us protect the environment and public health? And, is there a level playing field for environmental compliance – both to ensure fair treatment of facilities covered under the Clean Water Act, as well as to ensure consistent protection of the nation’s waters and public health.
If dischargers are allowed to violate permits and the threat of enforcement remains only a threat, the tools are not being used in an efficient manner. Similarly, if the reality is that federal and state agencies cannot be everywhere at all times, then we must have a credible, systematic, risk-based system to ensure consistent, equitable, and transparent compliance and enforcement. Today presents an opportunity to reevaluate our approach to protecting the nation’s waters from unchecked dischargers and new sources of threats.
I look forward to this day as being an opportunity by which EPA, the states, and this Congress may begin again to use the tools offered us by the Clean Water Act to guard our precious waters – and thereby protect the environment and public health.
Statement of The Honorable Eddie Bernice Johnson
Committee on Transportation and Infrastructure
Subcommittee on Water Resources and Environment
Hearing on “The Clean Water Act after 37 Years”
October 15, 2009
Thank you, Mr. Chairman, for holding this hearing in honor of the 37th anniversary of the Clean Water Act. I believe that this hearing presents us with an important opportunity to assess our progress towards meeting the goals of this Act.
The Clean Water Act was passed in 1972 to eliminate pollution to the nation’s waters, with a goal to make all waters safe for fishing and swimming. Since the passage of the Act, significant progress has been made to control the largest point sources of pollution to our waterways. As a result, our waters are both cleaner and safer than they were 37 years ago.
However, this hearing comes at a critical time for the health and viability of our nation’s waters. Because of a number of factors, the reality that all of our waters are safe for public health and the environment continues to elude us. In fact, over the last decade, states have reported that progress in improving water quality has slowed, and we may be witnessing a reversal in gains we have already made. According to the U.S. EPA’s National Water Quality Inventory, 44% -- almost half -- of all U.S. waterbodies are currently impaired. In addition, over two-thirds of our lakes are impaired, contaminated by poisons such as mercury, PCBs, and other heavy metals.
This is especially troubling to me because of my former career as a professional nurse. The presence of toxic contaminants and pathogens where families fish and our children play poses a significant health threat to those who unknowingly come in contact with them. There are few public health concerns more serious than the contamination of the public’s water supplies. Yet, the waterbodies in which we discharge our wastes are often the same waters, or are connected to waters, on which we rely for our drinking water. With this in mind, we need to be all the more vigilant in our protection of the nation’s waters from potentially harmful pollutants.
This anniversary of the Clean Water Act gives us the opportunity to reflect upon the successes and remaining challenges in protecting our waters. Over the past three years, the Subcommittee on Water Resources has examined several of these challenges in meeting the goals of the Act, including the challenges of addressing ongoing pollution from nonpoint sources or urban stormwater runoff.
However, today, we are focused on traditional point source discharges, which are specifically targeted in the Clean Water Act, and the concern that these continue to be a significant source of contamination. To examine this issue, we must recognize that the implementation of the Clean Water Act is a partnership between the federal government and the states and Tribes. Today, 46 States have direct responsibility for the operation of their Clean Water Act programs.
However, testimony from today’s witnesses shows that it is nearly impossible to determine the effectiveness of federal and state efforts to protect water quality from point sources of pollution. For example, federal and state data on these efforts are fragmented at best, and completely inadequate at worst.
Unfortunately, if the facilities that have been subject to federal oversight are any indicator of compliance levels, things do not look good. Data from the EPA shows that many major facilities with Clean Water Act permits violate their permits over and over again, apparently with no fear of retribution. In 2005, well over half of all major facilities in this country illegally discharged pollution into our waterways. These facilities reported almost 25,000 instances of such discharges, which included harmful bacteria, pathogens, and heavy metals, such as mercury and arsenic. Yet there are very few enforcement actions on record for any of these facilities.
This is a very troubling state of affairs. These are not new sources of pollution. These are sources that were supposed to be ended under the 1972 Act. And yet, we know that without a robust and accountable enforcement program, these sources of pollution and toxic contamination will continue.
It is time that we take implementation and enforcement of our Clean Water laws seriously. We must hold polluters responsible for their actions and end recurring violations of the Clean Water Act. We must also restore America’s faith that, regardless of where you may travel, the water will be safe. If we do not, we are failing not only to protect the environment, but also failing to protect the public’s health.
Mr. Chairman, I thank you once again for holding this important hearing, and I look forward to the testimony from all of our witnesses here today.
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