In October 2022, the Clean Water Act will turn 50. Though heralded as a crowning environmental achievement, some argue it’s a costly and ineffective law. Half a century later, what has it achieved, and what can policymakers improve?
Since enactment, the Clean Water Act has led to cleaner waterways and healthier wildlife. Its implementation has prevented billions of pounds of pollutants from entering our water, protected public health, and slowed the decline of ecologically and economically crucial wetlands.
According to Center for Progressive Member Scholar Robin Kundis Craig, its most underappreciated achievement has been direct investment in wastewater and sewage treatment infrastructure. Often taken for granted, the social, economic, and environmental benefits of wastewater treatment facilities are massive. By some estimates, funding national water treatment needs would spur $220 billion dollars of growth. Since 1972, over $100 billion of Clean Water Act assistance funds alone have been distributed to wastewater projects.
Shortcomings of the Clean Water Act and its Implementation
In setting water pollution standards under the Clean Water Act, states rely on the public “uses” of any given waterbody (whether it's used for fishing, recreation, etc.). The “existing use” criteria reflects how waterways had been used prior to 1975, when plans were originally implemented. As Craig notes in a recent article, rising temperatures have already impacted existing uses across the country, yet states are unable to update uses under current law, leaving water quality standards woefully out of step with the realities of climate change.
Beyond its language, the Clean Water Act fails to regulate “nonpoint source pollution,” or pollution that doesn’t come from a discrete location, such as agricultural runoff. In contrast to “point source” pollution from industrial facilities or municipalities, nonpoint sources are regulated exclusively by the states — with no federal oversight. According to Member Scholar William Andreen, this is one of the most substantial drawbacks of the Clean Water Act and is likely the reason that 40 percent of all waterways are impaired and 86 percent of all rivers and streams have suffered ecological devastation. Only seven states have enacted nonpoint pollution regulations since 1972.
Apart from underregulating nonpoint sources, the Clean Water Act’s primary tools have failed to fully protect urban waterways. Studies show that urban waters are disproportionately degraded and unlikely to meet water quality standards because of polluted stormwater. Under current law, sprawling commercial developments and construction sites can pollute with impunity. Although cities have begun to tackle this issue through additional permitting, fully addressing urban stormwater pollution under the Clean Water Act requires immense up-front investments in infrastructure. Alternatively, regulating pollution transmitted via groundwater might now be done on a case-by-case basis thanks to a favorable U.S. Supreme Court ruling in 2020, but implementation has sometimes remained too narrow in scope.
Beyond permit requirements, the primary mechanism for addressing urban water quality is setting and enforcing permissible water pollutant levels (known as Total Maximum Daily Loads, or TMDLs) set by states. However, TMDLs are challenging to set and enforce because multiple pollutants are present in runoff, and some pollutants are not officially recognized under U.S. Environmental Protection Agency (EPA) regulations. Additionally, the Clean Water Act doesn’t have a clear mechanism for turning TMDL measures into enforceable controls. Based on a congressional survey, only five states require implementation of TMDL standards.
Making the Clean Water Act Work for Everyone
To ensure the Clean Water Act adequately protects the environment and the public, policymakers and regulators must first dramatically increase funding to the EPA and state environmental agencies. Without more funding, the EPA and state regulators cannot thoroughly review or enforce pollution permits, conduct impact studies, update guidelines, perform inspections of potentially polluting facilities, or provide crucial grants for clean water projects. Investment gaps are growing and must be addressed.
In just one example, the Chesapeake Accountability Project recently found that Maryland's clean water enforcement efforts have declined in key areas over the past 20 years, with an especially noticeable decrease in the past six years.
Second, EPA needs to aggressively pursue regulation of nonpoint sources. Nonpoint pollution like agricultural runoff is the leading cause of water pollution in the United States. To fulfill the promise of the Clean Water Act, Congress should remove agricultural waste and other nonpoint source exemptions or at least require the development, updating, and implementation of TMDL management plans.
Certain states are already required to develop Best Management Plans (BMPs) for mitigating nonpoint pollution. If Congress refuses to act, the EPA should expand these requirements to all states and oversee their implementation. In the event state plans fail to adequately ensure water quality, the EPA should take the reins.
Third, Congress should expand the definition of “waters of the United States.” According to a joint report by CPR and Andreen, recent Supreme Court rules place immense weight on the “navigable waters” language in the Clean Water Act, rather than water sources more broadly. To protect all waters — including wetlands, which have lost protections in recent years, as well as isolated and intermittent waterways — Congress must remove such constraints.
Fourth, as climate change continues, Clean Water Act implementation must consider the cumulative effects of all pollution and regulate facilities vulnerable to climate impacts. Sections of the law require climate-related considerations, but addressing growing pollution problems likely requires comprehensively linking the Clean Water Act to the Clean Air Act. For example, rising temperatures increase toxic algae blooms, leading to violations of Clean Water Act standards. Because the authority provided by the Clean Air Act is directed at tackling climate change impacts such as rising temperatures, the Clean Air Act should be used in conjunction with the Clean Water Act.
Without considering cumulative impacts or providing a means of tackling them, the law stands powerless to address degrading waterways and ecosystems, and ultimately, to adequately protect people and the planet.
To follow our research and advocacy to strengthen the Clean Water Act and other key environmental regulations, subscribe to our email list and follow us on Twitter, Facebook, Instagram, and LinkedIn.
Editor's note: This post has been updated since its original publication date to clarify the classification of urban runoff pollution.
Showing 2,823 results
Jake Moore | April 22, 2022
In October 2022, the Clean Water Act will turn 50. Though heralded as a crowning environmental achievement, some argue it's a costly and ineffective law. Half a century later, what has it achieved, and what can policymakers improve?
Michael C. Duff | April 21, 2022
It might not be easy to get to the merits of United States v. Washington. A funny thing happened on the way to oral argument: The state of Washington modified the 2018 workers' compensation law at the center of the case, raising the prospect that there is no longer a live dispute for the justices to resolve.
Minor Sinclair | April 21, 2022
I'm hopeful the recent disco revival won't last but that other resurging movements of the 1960s and '70s will. That era saw the birth and explosive growth of the modern environmental movement alongside other sweeping actions for peace and equality. Public pressure led to critical environmental laws that continue to protect our natural resources and our health and safety. In 1970, Congress created the U.S. Environmental Protection Agency and enacted the Clean Air Act, which authorizes the federal government to limit air pollution, and the Occupational Safety and Health Act, which established the first nationwide program to protect workers from on-the-job harm. Two years later came passage of the Clean Water Act, a landmark amendment to existing anti-pollution law that requires our government to restore and maintain clean and healthy waterways across the land. That was some era -- the last great upsurge of government protections.
Brian Gumm, Minor Sinclair, Robert L. Glicksman, Sidney A. Shapiro | April 18, 2022
We're sad to share the news that long-time Center for Progressive Reform Member Scholar Dale Goble passed away at his home on April 14. Scholars and staff alike appreciated his warm presence at our scholars' meetings, and he brought a wealth of knowledge to the fields of wildlife and conservation law. When the founders of CPR were reaching out to the nation's leading progressive scholars, we were so pleased that Dale agreed to join. His humanity, his dedication to protecting public lands and wildlife, and his participation in CPR will be sorely missed.
Michael C. Duff | April 15, 2022
Under established constitutional law, states may generally not tax or regulate property or operations of the federal government. This principle is known as intergovernmental immunity. Congress may waive this federal immunity, however, and the scope of that principle is the major issue in Monday’s oral argument in United States v. Washington.
Caitlin Kelly | April 14, 2022
In 1971, Iowa highway construction workers uncovered 28 human remains. Of these, 26 were white, and two, a mother and her baby, were Native American. The white remains were buried in a local graveyard, while the Native American remains were sent to a local university for study. This decision was typical in the context of the past centuries' patrimonial laws, scientific racism, and outright genocide. In this case, however, a tribal member named Maria Pearson successfully pushed for both the return and proper burial of the Native American remains and the passage of a state law guaranteeing equal treatment of the remains of Native Americans and other peoples. Pearson and other advocates continued lobbying for federal protection of their cultural items. In 1990, because of their efforts, Congress passed the Native American Graves and Repatriation Act ("NAGPRA"), which provides a framework for federally recognized Native American tribes and Native Hawaiian Organizations to reclaim ancestral remains and associated objects from entities that receive federal funding.
Daniel Farber | April 12, 2022
The Trump administration left a trail of regulatory destruction behind it. Cleaning up the mess and issuing new regulations is Priority #1 for the Biden administration. Under U.S. Environmental Protection Agency (EPA) head Michael Regan, the effort is beginning to pick up steam.
John Knox | April 11, 2022
Introduced last month, the Advancing Human Rights-Centered International Conservation Act comes in the wake of a 2019 news investigation that described many instances of alleged murder, rape, and torture by park rangers against Indigenous people and local communities. The alleged abuses were perpetrated at parks supported by the World Wildlife Fund (WWF), which received millions of dollars in funding from the U.S. government.
Jake Moore | April 5, 2022
Virginia Gov. Glenn Youngkin (R) recently made a statement bashing the Regional Greenhouse Gas Initiative (RGGI), the East Coast's regional cap-and-trade program intended to reduce climate pollution and energy costs for low-income households. In attacking the program, Youngkin repeated questionable claims about its costs, impacts, and benefits and made clear his desire to move the Commonwealth backwards on climate policy and the clean energy transition.