Bay Crossings Article

GOP Assaults on Clean Water Act Continue

Jason Flanders, Baykeeper Staff Attorney
From the September 2011 edition of Bay Crossings

As the U.S. House and Senate return from their August recesses, debates over legislation to gut essential Clean Water Act protections will test the environmental leadership of key California legislators, and the President, as never before. Two major bills, H.R. 872 and H.R. 2018, have already passed the House and await a vote in the Senate, while dozens more stealthy appropriations riders may hold the budget process hostage.

The first anti-Clean Water Act bill to pass the House this summer was H.R. 872, a bill promoted by the agri-business and chemical manufacturer lobbies to overturn a major judicial victory by San Francisco Baykeeper to require that pesticides applied directly to water bodies be regulated under the Clean Water Act. Baykeeper filed suit in response to a 2007 U.S. Environmental Protection Agency (EPA) rule that pesticides sprayed into waters were not required to comply with Clean Water Act standards, so long as the pesticides were appropriately labeled, and the label instructions were followed.

The federal court invalidated EPA’s rule, holding that pesticides could not simply be exempt from the Clean Water Act, and requiring that aquatic pesticide applicators obtain a Clean Water Act permit with water quality controls. On the eve of EPA’s new permitting program, agri-business lobbyists managed a legislative end-run. This summer, the U.S. House has passed H.R. 872 to strip aquatic pesticides from the Clean Water Act. But California Senator Barbara Boxer continues to block a companion bill in the Senate, S. 718. The Bay Area’s urban creeks are already listed by the Regional Water Board as impaired by pesticide toxicity, and desperately need the protection of the Clean Water Act for recovery.

Next came H.R. 2018, also known as the euphemistically entitled Clean Water Cooperative Federalism Act of 2011, which would gut EPA’s authority over the Act. The bill passed the House by a vote of 239-184. Primarily written to facilitate mountaintop-removal coal mining in West Virginia, H.R. 2018 would have other far-reaching effects: eliminating minimum standards for waterways that cross state lines; weakening water quality standards for dredging activities; and giving states free reign to loosen water quality standards across the board. In short, H.R. 2018 would revise the Clean Water Act’s fundamental framework of individual state implementation guided by U.S. EPA oversight, a framework that has resulted in cleaner waterways for nearly 40 years. Although the Obama Administration has suggested that the President may veto this bill if passed, it will still be assigned to a Senate committee in September, where senators on both sides will be placed under mounting pressure for environmental rollbacks.

Most recently, a spate of stealthy appropriations riders were attached to major funding bills in the U.S. House, in an assault on Clean Water Act protections of all kinds. The unseemly strategy of attaching these riders to major appropriations bills, including appropriations for the Department of Agriculture, Department of Energy, Department of Homeland Security, and the Department of the Interior, thwarts the democratic process by holding agency funding hostage in order to chip away at regulatory safeguards completely unrelated to the appropriations. For instance, EPA has recently undertaken an effort to clarify which water bodies are and are not waters of the United States, subject to Clean Water Act protection, in response to the U.S. Supreme Court’s muddled and widely criticized decision in Rapanos v. United States. Recently, Baykeeper has been forced to devote considerable resources in litigation to prove that certain Bay Area creeks are protected by the Clean Water Act. But the Interior appropriations bill would preclude EPA’s new guidance, and keep this significant legal issue in limbo. This Interior appropriations bill will soon make its way to the Senate Appropriations Subcommittee on Interior and the Environment, where California Senator Dianne Feinstein will have a major role in its fate.

In short, as the Clean Water Act approaches its 40th Anniversary in 2012, the U.S. House of Representatives has put the Act in its crosshairs, launching a comprehensive attack on water quality. Their efforts would roll back virtually every facet of the Clean Water Act framework in place over the last four decades. And as with the debt ceiling clash this summer, elimination of these long-standing clean water protections is likely to be demanded as a ransom for holding major appropriations hostage. As a result, the environmental integrity of California’s senators and the President will be severely tested. Stay up to date by signing up for monthly e-news at or like San Francisco Baykeeper on Facebook.

Jason Flanders is the Staff Attorney for San Francisco Baykeeper, representing Baykeeper before municipalities, regulatory agencies, and in federal court, on all water quality issues.