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The Clean Water Act’s Midlife Crisis

Climate Justice Water

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.

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Editor's note: This post has been updated since its original publication date to clarify the classification of urban runoff pollution.

Climate Justice Water

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