The Clean Water Act at 40: Can We Renew the Vision?

by Robert Adler

October 15, 2012

Congress adopted the “modern” version of the Federal Water Pollution Control Act, more commonly known as the “Clean Water Act,” forty years ago this week (Pub. L. No. 92-500, Oct. 18, 1972). As Congress faces persistent efforts to weaken this law, it is important to take stock of why the law was passed, how well we have met its goals and objectives, and how much is left to accomplish.

In the current anti-regulatory climate, it is easy to fall prey to “collective societal amnesia” about the severe problems that caused Congress to pass this historic legislation. At the time, the United States faced water pollution problems of crisis proportions. Nearly a third of U.S. drinking water supplies exceeded Public Health Service limits. The Food and Drug Administration and the Bureau of Sport Fisheries found unsafe levels of mercury, pesticides, and other toxic pollutants in the majority of fish sampled. The Hudson River had bacteria levels 170 times over safe limits. In 1969, over 41 million fish were killed in reported incidents alone. And in perhaps the most public and dramatic catalyst for action, on June 22, 1969 the Cuyahoga River caught fire, fueled by oil and industrial waste discharges (for more on this history, see  The Clean Water Act: 20 Years Later,  which I co-authored with Jessica C. Landman and Diane Cameron).

In response to these severe problems, Congress adopted one of the most aspirational of all environmental statutes, with an overarching objective “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” Congress also set subsidiary but equally ambitious statutory goals to eliminate all discharges of pollutants into the nation’s waters by 1985 (the so-called “zero discharge” goal), and to achieve levels of water quality sufficient to protect fish and other aquatic life and to allow for safe public recreation in and on the water (the so-called “fishable and swimmable” goal) by 1983.

The United States has made significant progress in reducing water pollution since 1972, through a combination of strict regulations on “point source” discharges from factories and public sewage treatment plants, public and private investment in pollution control equipment, and other means of reducing more dispersed sources of pollution. For example, from 1970 to 1995, the federal government invested over $61 billion ($96.5 billion in constant 1995 dollars) in improved municipal treatment systems, backed up by enforceable permits that limited discharges from those plants, resulting in dramatic reductions in pollution and resulting improvements in water quality. Similarly, according to EPA estimates, enforceable new controls on industrial discharges reduce releases of toxic pollutants by a billion pounds a year or more, along with much higher volumes of “conventional” pollutants. Efforts to weaken the existing law could reverse some of these important improvements.

Still, four decades after the 1972 Act went into effect, we cannot claim to have met the goals that Congress initially set, including the interim goals of “zero discharge” by 1985 or “fishable and swimmable” waters by 1983, much less the ultimate statutory objective of “chemical, physical and biological integrity.” According to EPA’s most recent summary of state water quality reports, about 54% of the nation’s river miles, 69% of lake and reservoir acres, 66% of estuary area, and 85% of wetlands acreage is impaired (by a wide range of sources), meaning that those waters are not clean enough to fully support valuable uses such as fishing, public recreation, protection of aquatic ecosystems, or water supply. . Moreover, many of the human health threats that led Congress to adopt the Clean Water Act in 1972 have been reduced but not eliminated. The U.S. Geological Survey continues to find dangerous levels of pesticides, toxic metals and organic chemicals, and other dangerous pollutants in surface waters, fish, and public drinking water sources, and pathogens continue to pose health threats to waters we use for drinking water and public recreation.

Perhaps most notably, the largest remaining source of water pollution, runoff and other impairment from so-called “nonpoint sources” -- that is, pollution that reaches our waters through erosion, surface runoff, air deposition, and other more diffuse sources -- remains subject to a patchwork of individual state programs, many of which are largely voluntary in nature. A recent scientific analysis found that watersheds throughout much of the United States are at significant risk from unaddressed nonpoint source pollution from farming, development, road construction, livestock grazing and feeding, and other sources.

After forty years of dedicated effort, then, why have the aspirational goals of the Clean Water Act not been met? One reason is that all three branches of government have subverted some of the key tools adopted in the original legislation. For example:

Congress itself:

  • Backed off on the zero discharge aspiration in 1977 by repealing the second, stricter phase of municipal sewage treatment requirements and reducing its focus on recycling and reuse of municipal wastewater rather than continuing to dump it into the nation’s waterways.
  • Similarly weakened industrial pollution controls, thus encouraging EPA to loosen its efforts to require zero discharge technologies.
  • Failed to make good on its implicit promise to strengthen controls on polluted runoff after the states were unsuccessful in doing so themselves.
  • Eliminated federal financial investments in municipal sewage treatment; we now face more than a trillion dollars in capital investment needs for public water and wastewater infrastructure over the next 20 years.

Federal agencies (EPA and the U.S. Army Corps of Engineers):

  • Weakened the pollution elimination program by exempting large categories of sources from the definition of regulated “point sources,” followed by a Congressional exemption for agricultural point sources.
  • Failed to renew and strengthen industrial “best technology” controls over time, as Congress intended, to move steadily toward the zero discharge goal.
  • Ignored key provisions designed to implement the law’s ambient water quality standards program for nearly two decades (the “total maximum daily load” program designed to assure that aggregate pollution from multiple sources does not impair water quality).
  • Focused most heavily on chemical discharges, with little attention to the “physical” and “biological” integrity components of the Act’s objectives.
  • Continued to grant the vast majority of permits to destroy wetlands, despite President George H.W. Bush’s commitment to “no net loss” of wetlands.

The Supreme Court:

  • Issued a series of decisions that weakened both citizen and government enforcement of the Clean Water Act, and allowed exemptions and variances from stricter pollution controls.
  • Issued two major decisions narrowing the scope of Clean Water Act jurisdiction, generating widespread confusion about the water bodies to which the Act’s controls apply.

A somewhat more cynical view might be that the lofty goals Congress set were unrealistic from the start. Some have argued that the complete elimination of pollutant discharges into the nation’s waters was never a realistic or attainable goal, and likewise that the complete restoration of the chemical, physical and biological integrity of the nation’s waters is inconsistent with modern society as we know it. That argument misses the point of aspirational statutes. Some industries have, in fact, eliminated discharges of pollutants into surface waters, as have some municipalities who have chosen instead to reuse municipal wastewater for beneficial purposes (such as watering of public parks, with the corollary benefits of reducing demand for new fresh water withdrawals). They did so, in part, due to the catalyst of an ambitious statutory goal. Similarly, we may not have restored the integrity of all of our waters, but undoubtedly more so than if we had not set the goal at all. Aspirational goals force us to try harder. As Winston Churchill once said: “Sometimes doing your best isn’t good enough; sometimes you have to do what is required.”

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Also from Robert Adler

Robert W.  Adler is the Jefferson B. and Rita E. Fordham Presidential Dean at the University of Utah, S.J. Quinney College of Law, where he is affiliated with the Wallace Stegner Center for Land, Resources, and the Environment.

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