50 Years Later: Barriers to Success of the Clean Water Act

Prior to the landmark Clean Water Act of 1972, industrial facilities frequently used lakes and oceans as sites of chemical waste disposal, and cities often used local rivers to dump raw sewage [1]. Today, as the government’s primary tool for water quality control, the Clean Water Act has decreased the rate of wetland loss and keeps 700 billion pounds of pollutants out of U.S. waters each year [2]. In 1948, the Federal Water Pollution Act served as the first major U.S. law directed towards water quality control, and became commonly known as the Clean Water Act in 1972 following critical amendments that paint the law’s current dimensions [3]. Recently passing its 50th anniversary, however, the Clean Water Act grapples with legislative setbacks that challenge its goals to have zero discharge of pollutants and water that is “fishable” and “swimmable.”[4] Though the Clean Water Act has made substantial headway in maintaining the integrity of the nation’s waters, areas of the legislation’s structure, including its neglect of nonpoint source pollution and its ambiguous jurisdictional scope, have created detrimental loopholes for continued water pollution, which can and should be addressed.

The Clean Water Act experiences shortcomings in addressing nonpoint source pollution. Nonpoint source pollution originates from diffuse sources such as agricultural and urban runoff, transportation, and construction [5]. Today, nonpoint source pollution persits as the leading source of water quality issues [6]. Moreover, the ambiguous definition of nonpoint source pollution continues to exacerbate its spread. Point source pollution, as defined by the U.S. Environmental Protection Agency (EPA), includes “any single identifiable source of pollution from which pollutants are discharged, such as a pipe, ditch, ship or factory smokestack” and a nonpoint source is defined as any other source of water pollution source not encompassed by these bounds [7]. Because nonpoint pollution encompasses such a wide range of pollutants, regulation fails to adequately identify and address all of these instances of pollution, particularly in relation to the National Pollutant Discharge Elimination System (NPDES) program. Under NPDES, certain discharges from point sources require a permit, whereas nonpoint source pollution does not [8]. NPDES permits are largely responsible for regulating wastewater discharges through limiting the amount of polluted discharge to enter bodies of water [9]. As nonpoint source pollution does not require a permit, there is substantial leeway for runoff, such as from pesticides, to pollute a body of water. Consequently, the regulation of nonpoint source pollution has primarily been left to states, as it does not require an NPDES permit. By leaving regulation to the states, there is variability on how tightly nonpoint source pollution is regulated. As such, depending on the prioritization and allocation of resources towards pollution control of each state, different regions may have drastically different water qualities.

To further exacerbate the lack of nonpoint source pollution regulation, federal grant funding for state implementation of the Clean Water Act is highly focused on point-source pollution, so even states that do regulate nonpoint source pollution may not have the funding to enforce that regulation. A substantial amount of federal assistance that is dedicated to municipal wastewater treatment authorities finances low-cost point source pollution control initiatives, indicating a federal preference for point-source over nonpoint source pollution reduction projects [10]. Scholars such as Wiliam Andreen credit the failure to regulate nonpoint source pollution as one of the largest drawbacks of the Clean Water Act, citing it as the likely reason that “40 percent of all waterways are impaired and 86 percent of all rivers and streams have suffered ecological devastation.”[11] Although prioritizing regulation of point source pollution is also extremely important, the insufficient attention towards nonpoint source regulation has contributed towards increased polluted runoff over time [12]. It is integral that Congress first revisits the Clean Water Act’s wording to acknowledge the importance of nonpoint source pollution. Consequently, by prioritizing stronger allocation of grant funding and financing to state authorities, Congress can then engage in a new approach towards ameliorating the effects of nonpoint source pollution.

Further, the vague jurisdictional scope of the Clean Water Act continues to limit its enforcement. Two Supreme Court rulings in particular, the rulings in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (2001) and the ruling in Rapanos v. The United States (2006) have created ongoing confusion regarding which bodies of water are governed by the Clean Water Act. The first of the two cases ruled that isolated, non-navigable waters [13] did not fall in the category of “waters of the United States” and this definitional exclusion of certain waters narrowed the jurisdictional power of the Clean Water Act [14]. Under Rapanos, the definition of “waters of the United States” once again created confusion and a 4-1-4 court split. While Justice Scalia, with the plurality, took a narrow interpretation of the definition, Justice Kennedy, with the concurrence, took a broader interpretation and asserted that waters, such as wetlands, are included in the Clean Water Act’s jurisdiction [15]. As a result of the split decision, there have been numerous questions on just how narrow or broad the scope of the Clean Water Act is. Under these blurred Supreme Court rulings, rivers, wetlands and lakes are at risk of losing federal protections. To address this limitation, EPA Administrator Lisa Jackson issued the Clean Water Act Enforcement Plan during a Congressional hearing on the Clean Water Act [16]. This enforcement plan aims to update data showing the low water quality in several regions of the country, along with enhancing public transparency, in order to clear the confusion and preserve the integrity of water quality throughout the country [17].

In court, one question at the forefront of debate continues to be what bodies of water are covered by the Clean Water Act. When the legislation was passed in 1972, one major national goal of the Clean Water Act was “the elimination of discharge of pollutants into navigable waters…”[18] Though the EPA has always taken a broad interpretation of these mandates, the Trump administration took a different approach. In 2020, President Trump issued rules that omitted wetlands and smaller water sources under the justification that they were not “navigable,” and as such, not included within pollution limits [19]. Though the Biden Administration later proposed rules to restore protection to these wetlands and small streams, the muddied wording of the Clean Water Act leaves room for future interpretations similar to those of the Trump Administration [20]. In order to mitigate these future effects, Congress needs to make proper amendments that specify the jurisdiction of the Clean Water Act, and leave less room for uncertainty.

The Clean Water Act has improved water quality throughout the country and continues to eliminate pollution from rivers and streams. When the legislation passed in 1972, it outlined two major goals. The first is to “eliminate the discharge of pollutants into navigable waters by 1985” and the second is to “achieve water quality that is fishable and swimmable by July 1, 1983.”[21] Congress maintains that “while those dates have long passed, efforts to obtain the goals continue.”[22] The jurisdictional scope of the Clean Water Act remains largely unclear not just geographically, but also in terms of the expected time it will actually take to achieve said goals. While the continued efforts towards reaching cleaner waters is integral to the mission of the Clean Water Act, arbitrary goal dates have worrying implications on the enforcement of the Clean Water Act. Shortcomings of the legislation may not be adequately addressed in a pressing manner under the leniency suggested in the statement to continue goals without a set timeframe.

When evaluating the past 50 years of the Clean Water Act, it is important to acknowledge its successes in protecting the nation's waters. When the legislation was passed in 1972, only one-third of waters in the country met water quality goals. In comparison, two-thirds of waters meet water quality goals in the present day [23]. However, the lack of attention and funding towards nonpoint source water pollution, as well as ambiguous language about the geographic and temporal scope of the Clean Water Act, have created detrimental setbacks that leave room for continued pollution and jurisdictional challenges to protected waters. Through strengthening the structure of the legislation, the Clean Water Act can detail stricter regulations and lay the groundwork for a stronger enforcement of clean water control.

Bibliography

1. National Wildlife Federation. n.d. “Clean Water Act.” National Wildlife Federation. https://www.nwf.org/Our-Work/Waters/Clean-Water-Act#:~:text=It%20keeps%20700%20billion%20pounds,our%20rivers%20have%20declined%20dramatically.

2. Ibid.

3. ———. 2022b. “History of the Clean Water Act.” United States Environmental Protection Agency. July 6, 2022. https://www.epa.gov/laws-regulations/history-clean-water-act#:~:text=The%20Federal%20Water%20Pollution%20Control,Clean%20Water%20Act%20(CWA).

4. Congressional Research Service. 2016. “Clean Water Act: A Summary of the Law.” Congressional Research Service. October 18, 2016. https://crsreports.congress.gov/product/pdf/RL/RL30030/23.

5. The Clean Water Act at Fifty?: Highlights and Lessons Learned from a Half Century of Transformative Legislation?: Remote Hearing before the Subcommittee on Water Resources and Environment of the Committee on Transportation and Infrastructure, House of Representatives, One Hundred Seventeenth Congress, Second Session, September 20, 2022. 2022. Washington: U.S. Government Publishing Office.

6. ———. 2022a. “Basic Information about Nonpoint Source (NPS) Pollution.” United States Environmental Protection Agency. Summer 2022. https://www.epa.gov/nps/basic-information-about-nonpoint-source-nps-pollution#:~:text=States%20report%20that%20nonpoint%20source,not%20always%20be%20fully%20assessed.

7. National Ocean Service. n.d. “Point Source.” National Ocean Service. https://oceanservice.noaa.gov/education/tutorial_pollution/03pointsource.html#:~:text=The%20U.S.%20Environmental%20Protection%20Agency%20(EPA)%20defines%20point%20source%20pollution,common%20types%20of%20point%20sources.

8. Janasie, Catherine. 2018. “The Management of Nonpoint Source Pollution under the Clean Water Act.” National Sea Grant Law Center. June 2018. https://nsglc.olemiss.edu/projects/ag-food-law/files/mgt-nonpoint-source-pollution-under-cwa.pdf.

9. Commonwealth of Massachusetts. 2023. “NPDES Permits: What You Need to Know.” Mass.gov. 2023. https://www.mass.gov/guides/npdes-permits-what-you-need-to-know#:~:text=NPDES%20permits%20regulate%20wastewater%20discharges,monitoring%20requirements%20and%20other%20conditions.

10. DeGood, Kevin. 2020. “A Call to Action on Combating Nonpoint Source and Stormwater Pollution.” Center for American Progress. October 27, 2020. https://www.americanprogress.org/article/call-action-combating-nonpoint-source-stormwater-pollution/.

11. Moore, Jake. 2022. “The Clean Water Act’s Midlife Crisis.” Center for Progressive Reform. April 22, 2022. https://progressivereform.org/cpr-blog/clean-water-acts-midlife-crisis/#:~:text=Shortcomings%20of%20the%20Clean%20Water%20Act%20and%20its%20Implementation&text=Beyond%20its%20language%2C%20the%20Clean,location%2C%20such%20as%20agricultural%20runoff.

12. State EPA Nutrient Innovations Task Group. 2009. “An Urgent Call to Action—Report of the State-EPA Nutrient Innovations Task Group.” United States Environmental Protection Agency. August 2009. https://www.epa.gov/sites/default/files/documents/nitgreport.pdf.

13. The Clean Water Act at Fifty?: Highlights and Lessons Learned from a Half Century of Transformative Legislation?: Remote Hearing before the Subcommittee on Water Resources and Environment of the Committee on Transportation and Infrastructure, House of Representatives, One Hundred Seventeenth Congress, Second Session, September 20, 2022. 2022. Washington: U.S. Government Publishing Office.

14. The Clean Water Act at Fifty?: Highlights and Lessons Learned from a Half Century of Transformative Legislation?: Remote Hearing before the Subcommittee on Water Resources and Environment of the Committee on Transportation and Infrastructure, House of Representatives, One Hundred Seventeenth Congress, Second Session, September 20, 2022. 2022. Washington: U.S. Government Publishing Office.

15. Rapanos v United States

16. Water Online. 2009. “EPA Ties Clean Water Enforcement Challenges Directly to Supreme Court Cases.” Water Online. October 21, 2009. https://www.wateronline.com/doc/epa-ties-clean-water-enforcement-challenges-0001.

17. United States Environmental Protection Agency. 2009. “EPA Administrator Announces Plan to Retool and Reinvigorate Clean Water Enforcement Program.” United States Environmental Protection Agency. October 15, 2009. https://www.epa.gov/archive/epapages/newsroom_archive/newsreleases/9cd6bf52eaae15e1852576500052cd2f.html.

18. The Clean Water Act at Fifty?: Highlights and Lessons Learned from a Half Century of Transformative Legislation?: Remote Hearing before the Subcommittee on Water Resources and Environment of the Committee on Transportation and Infrastructure, House of Representatives, One Hundred Seventeenth Congress, Second Session, September 20, 2022. 2022. Washington: U.S. Government Publishing Office.

19. The Scientific American Editors. 2022. “We Need 50 More Years of the Clean Water Act.” Scientific American. November 1, 2022. https://www.scientificamerican.com/article/we-need-50-more-years-of-the-clean-water-act/#:~:text=In%20the%2050%20years%20since,have%20kayakers%20and%20recreational%20fishers.

20. Ibid.

21. The Clean Water Act at Fifty?: Highlights and Lessons Learned from a Half Century of Transformative Legislation?: Remote Hearing before the Subcommittee on Water Resources and Environment of the Committee on Transportation and Infrastructure, House of Representatives, One Hundred Seventeenth Congress, Second Session, September 20, 2022. 2022. Washington: U.S. Government Publishing Office.

22. Ibid., 31

23. Ibid., X