Water:

Former EPA water chief Grumbles discusses push to rewrite Clean Water Act

Should the Clean Water Act be rewritten to give the states more power on wetlands protection decisions? During today's OnPoint, Ben Grumbles, former assistant administrator for water at U.S. EPA and the current president of the Clean Water America Alliance, discusses efforts in the House to shift the power on water. Grumbles also previews the Supreme Court's upcoming consideration of a wetlands regulation case.

Transcript

Monica Trauzzi: Hello, and welcome to On Point. I'm Monica Trauzzi, joining me today is Ben Grumbles former assistant administrator for water at the USEPA and the current president of the Clean Water America Alliance. Ben, thanks for coming back on the show.

Ben Grumbles: My pleasure, thank you.

Monica Trauzzi: Ben, lots of action on wetlands right now in Congress. How are the budget talks affecting the conservation agenda, in particular wetlands discussions?

Ben Grumbles: Well, the budget is a significant tool, leveraging point, to try and influence policy and so there are some far-reaching writers, restrictions, included in the budget process. It's a major way to try to influence executive branch policy and also get very controversial because of restriction zones on different things the EPA could be doing. And it also is significant from a financial standpoint, is there the money to carry out regulatory programs, is there the money for States agencies to carry out their clean water responsibilities? So it's a huge part of the policy discussion.

Monica Trauzzi: And there's also been a big discussion in congress over who should have the final say on wetlands protection decisions. Does the clean water act need to be rewritten as the house has said it should?

Ben Grumbles: The Clean Water Act has been one of the most successful statutes in the history of the country in terms of environmental protection. It's a model for other countries. It's still working in many respects. It does need to be improved and modernized and updated. Current proposals, some make sense, others are far-reaching. This whole question of what is and isn't a wetland has been raging for some time and it's reached a boiling point. And the question of the role of the States versus the Feds, particularly EPA, has reached a boiling point as well. And it's an important, legitimate discussion. Clean Water America Alliance and I, given my background involvement in these issues, feel there is plenty of room for finding middle ground and common ground to protect our countries natural heritage, and the wetlands are at the heart of it.

Monica Trauzzi: So the States should play a larger role?

Ben Grumbles: Absolutely. A couple points on that front. I think over the last decade there's been a lot of discussion about - since one of the criticisms for the Federal Wetlands Regulatory Program is that it is, in many respects, a local land use statute, and therefore, if you delegate authority to the governmental entity that's closest to those that are actually being governed, that's a recipe for success. But for years the Congress and others have debated how do you get States to willingly, knowingly assume the most controversial aspect of it; the Clean Water Act Wetlands Permitting Program. And there's some specific ways to do that, and that's one of the things that I think the Congress really needs to focus on because it may be a key to helping to solve this problem that the loggerheads were at on Feds versus States.

Monica Trauzzi: So does this discussion mark a shift for Congress on water and wetlands issues, or is this something that we've seen before?

Ben Grumbles: Well, we have seen it before. We'll see it again. There's this wave of continuing perspectives on Federal versus State roles. Recent House-passed legislation, cooperative federalism - Clean Water Cooperative Federalism Act - it's a legitimate issue. It's a fairly well-crafted bill but it's a significant shift in that balance of power. And, you know, my view is that it may be going too far too fast with too many questions and that downstream States may stand to lose if there is not the opportunity for an interstate umpire from time to time to step in.

Monica Trauzzi: Wetlands regulation has also come up in the Supreme Court recently with it's consideration of the Sackett case. Again here there's a big question about the scope of wetlands regulation in the United States. How could the Court shift the game here?

Ben Grumbles: You know, this is a very interesting situation where the Court has shown a real interest over the years in wading into these muddy waters, maybe making them even muddier, based on the Swank case - the 2001 case involving a solid waste agency of Northern Cook County in Illinois, and also the Rapanos decision in 2006 - those were trying to tackle the question of what is and isn't covered under the - regulated under The Clean Water Act. The recent agreement by the Court to take up the Sackett case here in the October term coming up, it's not a conscious signal that they're going to be wading into the policy question of what is and isn't a wetland and what role does the EPA or the Core of Engineers have, but it's a focus on the fairness and the procedural rights of those who may disagree with EPA; it's a pre-enforcement judicial-review type of question. And I think a lot of people are concerned that it's going to provide - particularly from the environmental community - as the Supreme Court weighs in on what rights to property owners have to challenge a decision by the EPA that they should have gotten a permit before proceeding. The environmental groups and others are concerned that this is going to lead - it's going to create a grandstand for those to criticize further the EPA permitting programming and galvanize more support behind significant changes on what is and isn't covered and what are the procedural rights? I think it's going to be interesting and there may be some spillover effect even if it just focuses on pre-enforcement judicial review, you know very technical, legal, procedural issues. But there's a reason the Supreme Court took it. Nobody really knows exactly why, and it may be to send some additional language our way to indicate, you know these agencies really have got to revise their regulations to provide more predictability and certainty to the regulated public.

Monica Trauzzi: So, do you think that we could see some major changes in the regulatory structure for wetlands in the near term?

Ben Grumbles: How do you define near term? That's always the question isn't it? Well, the administration has signaled that they have every intent of following up on their controversial interim guidance on waters of the United States. This is tackling the question of jurisdiction of The Clean Water Act. They have every intention, they say, of moving forward with a regulation, a legally binding regulation. I think a lot of people are feeling that they're going to run into some significant hurdles and delays, and that regulation - which just about everybody agrees is needed - some type of regulation to have more legal stature than just guidance after the Supreme Court decisions. But I'm just - I'm thinking that just given the climate, the politics and the wedge issue that wetlands has been for some time, it's going to be difficult to get a regulation out in the "near term."

Monica Trauzzi: Okay, we'll end it there. Thank you for coming on the show. Nice to see you.

Ben Grumbles: Thank you. And thanks for watching. We'll see you back here tomorrow.

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