House Votes to Return Clean Water Authority to States

Published August 1, 2011

The U.S. House of Representatives has passed a bill that would make it more difficult for the U.S. Environmental Protection Agency to impose tighter water standards on a state without the state’s consent. Under the bill, which the House passed by a 239-184 vote, EPA could not unilaterally tighten water standards in a state if the agency previously approved the existing state standards.

Federal-State Balance
EPA relies on the Clean Water Act (CWA) for its power to impose state water standards. The objective of the CWA is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. The CWA calls on states to establish quality standards for the water bodies in their states.

The primary mechanism for achieving this objective is the CWA’s prohibition on the discharge into a body of water any pollutant without a National Pollutant Discharge Elimination System (NPDES) permit. The CWA does not contemplate a single, federally led water quality program. Instead, Congress intended the states and EPA to implement the CWA as a federal-state partnership where the states and EPA act as co-regulators.

EPA ‘Abandoned Its Proper Role’
Congressional supporters of the House bill say EPA has overstepped its bounds regarding the Clean Water Act, effectively dictating to the states rather than working cooperatively with them regarding state water issues. The House bill is designed to restore balance between EPA and the states.

EPA has increasingly “abandoned its proper role of approving state programs and ensuring that the standards that states adopt meet the minimum requirements of the CWA,” explained a House Transportation and Infrastructure Committee press release announcing passage of the bill. “Instead, the EPA has decided to get involved in the implementation of state standards, and in second-guessing states with respect to how standards are to be implemented and even second-guessing the EPA’s own prior determinations that a state standard meets the minimum requirements of the CWA.”

EPA has “undermined the system of cooperative federalism established under the CWA in which the primary responsibilities for water pollution control are allocated to the states,” the Committee press release continued, and thus its “actions have created an atmosphere of regulatory uncertainty … and have had a chilling effect on the Nation’s economy and job creation.”

EPA Circumventing Congress
Brett Healy, president of the Wisconsin-based MacIver Institute, echoed the need to restore the federal-state partnership balance.

“Any effort to empower states to work with their residents to care for their resources is a step in the right direction,” Healy said. “Washington bureaucrats have proven they are more concerned about power and control than they are about being good stewards of our environment.”

“Through a series of air and water rules, the EPA is attempting to legislate an agenda that the fringe environmental lobby cannot get passed through Congress,” said Scott Manley, director of environmental and energy policy at Wisconsin Manufacturers and Commerce. “Taken together, these rules will be economically devastating to manufacturing jobs and will significantly hinder our efforts to recover from the current recession.

“Whether intentional or not, the EPA is sending a clear message to American businesses that growth and investment are not welcome here. We need Congress to take action to remind the EPA that lawmakers are responsible for legislating policy—not unelected bureaucrats,” Manley explained.

EPA’s approach “is a blatant attempt to achieve administratively what could not be accomplished by failed legislation authored by former Congressman Jim Oberstar (D-MN) and by former Senator Russ Feingold (D-WI),” said National Water and Conservation Alliance cochairman Don Parmeter.

Voters Punished Activists
Chuck Cushman, executive director of the American Land Rights Association, notes the Oberstar-Feingold legislation “never made it out of Congress, and its two primary sponsors, Rep. Oberstar and Sen. Feingold, were defeated in the last election primarily because of their proposed CWA land grab.”

“We can only hope that the U.S. Senate will see the wisdom of this modest legislation and agree to rein in the EPA and return some of the jurisdiction to where it rightfully belongs,” said Parmeter.

D. Brady Nelson ([email protected]) is a Milwaukee-based economist.