The Clean Water Act at 40: Finishing a Task Well Begun

by William Andreen

October 09, 2012

This post is first in a series marking the 40th anniversary of the Clean Water Act.

On October 18th, the nation will celebrate the 40th anniversary of the Clean Water Act.  This landmark piece of legislation has proven remarkably successful.  Water pollution discharges from both industry and municipal sewer systems have declined sharply, the loss of wetlands has been cut decisively, and water quality has broadly improved across the country.  The Clean Water Act is, in short, a real success story.  It stands as a tribute to the foresight of those in Congress who passed it, as well as to the men and women in both state and federal regulatory agencies who have worked so hard, and for so long, to restore the integrity of our nation’s waters.

The Act, however, is showing its age.  Twenty-five years have passed since it was last amended in comprehensive fashion, and more than a little fine-tuning is necessary to finish the task that began in 1972.  The most significant problem involves nonpoint source pollution—the indirect discharge of polluted runoff from fields and roads, clear cuts, and parking lots.  The Act never addressed nonpoint source pollution in a straightforward way.  Instead, it was treated as something of an afterthought left primarily in the hands of state and local government, and they have primarily relied upon voluntary management practices to control polluted runoff.  As a result, nonpoint source pollution has evolved into the largest single source of water quality impairment in the country.  These diffuse sources of water pollution are, furthermore, much more diverse than we once thought.  In addition to obvious sources such as polluted runoff from agriculture, urban areas, logging operations, and mines, nonpoint source pollution also includes cross-media transfers, including the deposition of air pollutants such as mercury and nitrogen, into our waters.

Many other problems remain as well.  Two Supreme Court cases, SWANCC and Rapanos, have narrowed the Act’s jurisdiction in such a way that many formerly protected wetlands, headwaters, and intermittent streams are now fair game for degradation.  The nation’s existing infrastructure for collecting and treating municipal wastewater is slowly decaying while the population is growing, and sanitary sewer overflows and combined sewer overflows persist as problems in hundreds of cities.  The EPA’s efforts to update discharge standards are seriously lagging due to inadequate funding, while permit compliance and state enforcement efforts remain too inconsistent.  The Act also needs to be amended to make it explicit that water quantity is an indispensable aspect of water quality and that adequate environmental flows must be established and maintained on our nation’s rivers and streams.  (A thorough discussion of the ways in which the Act could be revised in order to address these problems and others may be found in The Clean Water Act: A Blueprint for Reform, which was written by Shana Jones and myself.)

Since 1987, Congress has been unable to act on any positive legislation to strengthen the Act in comprehensive fashion.  The current prospects for such far-ranging legislation are, moreover, nil.  In fact, the momentum on Capitol Hill appears to lie at the present time with those who would roll back the protections afforded by the Clean Water Act.

Since the beginning of the 112th Congress in January 2011, the House of Representatives has passed a long line of bills and riders designed to retard progressive environmental regulation.  One bill in particular, the Clean Water Cooperative Federalism Act of 2011, was specifically aimed at blunting further progress under the Clean Water Act.  Although these bills are unlikely to either pass the current Senate or receive President Obama’s signature, they demonstrate a significant disconnect in American politics:  the public continues to support strong environmental protection, while many of their representatives—apparently a majority in the current House of Representatives—do not.  It is a vexing problem, and one that poses not only a present obstacle, but possibly a continuing barrier to our efforts to clean up the nation’s waters.

The anniversary of this transformative Act provides the nation with an opportunity to reflect on both the progress that has been achieved and the way in which it was accomplished.  We must also understand, however, that the task is far from over.  More effort will be required not only to deflect the current backlash against strong environmental protection but to complete the job which was begun in 1972.  In short, it will take renewed commitment and political struggle to enable the nation to finally realize its long-held dream of restoring and maintaining clean waters for existing and future generations.

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Also from William Andreen

William L. Andreen is the Edgar L. Clarkson Professor of Law at the University of Alabama School of Law.

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