EPW Hearing Statement: The Appropriate Role of States and the Federal Government in Protecting Groundwater

WASHINGTON – Today, the U.S. Senate Environment and Public Works Committee held the hearing, “The Appropriate Role of States and the Federal Government in Protecting Groundwater.” Below is the opening statement of Ranking Member Tom Carper (D-Del.), as prepared for delivery:

Mr. Chairman, The purpose of this hearing is to determine ‘the appropriate role of States and the Federal Government in protecting groundwater.’ Frankly, I didn’t know the roles of states and the federal government were in question. For over 40 years, as far as I know, it’s been perfectly clear what Congress intended. In part, that’s because the language in the Clean Water Act is crystal clear.

“The bottom line is this: if pollution travels from a defined point source, like a coal ash pond, to surface water by way of a direct hydrological connection, like groundwater, then the Clean Water Act regulates that pollution.

“This isn’t just me speaking. Justice Scalia agreed in his opinion in the now-famous Rapanos decision. Justice Scalia wrote, and I quote: 

‘“The Act does not forbid the ‘addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’ Thus, from the time of the Clean Water Act’s enactment, lower courts have held that the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates section 1311(a), even if the pollutants discharged from a point source do not emit ‘directly into’ covered waters, but pass ‘through conveyances’ in between.’”

“It seems to me that if EPA is willing to rely on Justice Scalia’s majority opinion about what constitutes the ‘waters of the United States,’ EPA should surely agree with him on this point. Justice Scalia also correctly noted the nearly unanimous agreement amongst the lower courts. Of course, it’s not a real legal struggle when the law is so clear. The real role of courts in these cases is to parse the facts in each unique situation they face to determine whether the hydrologic connection of point source with navigable water is clear enough for the Clean Water Act to apply.

“It is not hard for me to understand why some industries—such as oil and gas, utilities and mining—might be interested in trying to inject some uncertainty into the question of whether or not to regulate pollution that flows from their leaky ponds and lagoons into the waters we depend on for drinking water, fisheries and recreation.

“Citizens whose health and property values have been hurt by petroleum products, arsenic, mercury, lead and other toxic materials seeping into their waterways have exercised their invaluable right to sue under the Clean Water Act when state agencies and EPA have failed to protect them adequately. And they are winning.

“Why? Because the law is clear, and they have the right to be heard. The only way to silence those in the public who have been harmed is if we—in Congress—choose to weaken the Clean Water Act and strip them of this ultimate tool to protect themselves. I cannot, and will not support any such effort.

“Let me also add here that EPA cannot unilaterally change the law, no matter how passionately its leaders may wish to do so. Any change in EPA’s 40-year-old position that groundwater pollution can reach and contaminate surface water would be arbitrary and the change would likely be overturned by the courts.

“Mr. Chairman, I’m happy to welcome our witnesses here today. I look forward to hearing their testimonies and to the opportunity to discuss with them and our colleagues this important issue. Having said that, though, we should be aware that EPA is currently taking public comment on an important environmental issue that has been regarded as a matter of settled law for decades. That law essentially says, ‘If you are responsible for polluting our rivers, streams, lakes and oceans by spilling, injecting or leaking contaminants into groundwater and that groundwater is hydrologically connected to surface water, then you are liable for that pollution.’ Period. That law should not change. Thank you, Mr. Chairman.”