Forty years later, the law’s legacy is hard to overstate. Not only did it empower the EPA to punish polluters, but it helped legitimize the young U.S. environmental movement at a key time in its history. River fires, toxic spills and other crises had cast a national spotlight on water pollution, spurring support for an aquatic sequel to the 1970 Clean Air Act. And unlike its precursor, the Federal Water Pollution Control Act of 1948, this law sought to make all U.S. waters “fishable and swimmable” by a specific deadline (1985), and gave regulators the tools to actually follow through.
“I’ve been at this game for a long time, and what I saw in wastewater discharges when I first started was so much worse than what I see today,” says Ken Greenberg, chief of the EPA Clean Water Act compliance office for Region 9, which covers Arizona, California, Hawaii, Nevada, the U.S. Pacific Islands and 147 Native American tribes. “There is still work to be done, but it’s a lot better than it used to be.”
The CWA mainly targets big, point-source pollution like sewage leaks and oil spills, but it has also improved more than just water quality, says Bill Holman, director of state policy at Duke University’s Nicholas Institute for Environmental Policy Solutions. “It’s one of the most successful environmental laws ever enacted,” he tells MNN. “The country has made huge strides in reducing pollution from wastewater treatment plants and industries, and it has even helped spark redevelopment of many areas, because waterfront property is valuable again. People like being close to clean water.”
Yet as Greenberg and Holman both acknowledge, the CWA is still a work in progress even as it turns 40. An estimated 35 percent of U.S. waters are still unfit for fishing or swimming in 2012 — despite the law’s 1985 target of zero percent — and it does little to control diffuse, “nonpoint” sources of pollution like urban stormwater and farm runoff. It’s also beset by ambiguity, due partly to a series of court rulings that have raised doubts about which waterways are protected and which ones aren’t.
“It’s not so much that there’s a flaw in the law, but there’s a flaw in how it’s being interpreted and enforced today,” says Jonathan Scott of Clean Water Action, an advocacy group that helped design many of the Clean Water Act’s original policies in 1972. While the law could use some updates, Scott tells MNN, its main problems come from 40 years of efforts to drain its funding and muddy its intent.
“What needs to happen first is a reaffirmation of the nation’s commitment to the goals of the law: fishable, swimmable waters for all Americans,” Scott says. “It has to start with making sure the law actually protects all of our water, not just some of it. To really protect one waterway, you have to protect everything upstream.”
A bridge over troubled water
- 1968: The insectide DDT appeared in 584 of 590 water samples taken by the U.S. Bureau of Sport Fisheries, some with up to nine times the FDA limit.
- 1969: The Cuyahoga River caught fire near Cleveland, Ohio, when a stray spark — possibly from a passing train — struck an oil slick floating on the surface.
- 1969: Discharges from four food-processing plants killed 26 million fish in one Florida lake, pushing the year’s nationwide fish-kill total to a record 41 million.
- 1971: The FDA reported that 87 percent of U.S. swordfish samples contained so much mercury they were unfit for human consumption.
“There’s a huge amount to celebrate in terms of progress,” says Scott, who serves as communications director for Clean Water Action. “But at the same time, clean water is very easy for people to take for granted because of all the success we’ve had.”
Fortieth birthdays often inspire a mix of fond memories and nagging regrets, and the Clean Water Act’s big milestone is no different. Few who know the law neglect to sing its praises, but most make sure to mention its shortcomings, too.
That’s not to say the law ignores them, Greenberg notes, since the EPA does require general permits for certain sources of runoff. Construction sites may need erosion fences, for instance, while industrial plants and cities may need infrastructure to trap stormwater. “EPA can do inspections and enforcement, but we really require the industry to put in place best management practices,” he says. “These permits are not as prescriptive because we’re dealing with a more diffuse source of pollution.”
Such ideas are popular with many environmentalists, who want to see cities wield water more like nature does. “We have a linear system of managing water, and that’s not sustainable,” Scott says. “A better way is to keep more water circling in the area where it originates. It’s just mimicking nature, mimicking what was there before we paved stuff. Those things reduce pollution, increase property values, and actually cost a lot less than paving and then treating the water when you collect it downstream.”
Despite its failures in certain areas, the CWA has also faced accusations over the decades that it’s too successful. Amid complaints from some industries and lawmakers that a broad interpretation of the law can force businesses to needlessly spend money on compliance, courts have issued a few restrictions in recent years.
The EPA has pledged to work within the courts’ constraints, but Holman says its pollution-fighting powers — which it mainly passes on to states, along with resources and guidance — are significantly weakened. “I think the courts have limited EPA’s authority, and many states tie their authority to EPA’s,” he says. “In the case of wetlands, the Clean Water Act itself was pretty broad and could be interpreted expansively or narrowly, and the trend lately has been to reduce EPA’s authority. And that has made it more difficult for EPA and states to do their jobs.”
This is part of a long-running dance between courts and regulators, Adler says, in which neither wants to whittle down the law or leave it too broad. “We’ve seen kind of a cat-and-mouse game over the years, where the Supreme Court slaps agencies on the wrist, they go back and write more guidance and apply it to the statute, then it goes back to the Supreme Court again, and so on,” he says. “So until Congress steps in and clarifies, or the agencies write more specific regulations that hold up in court, I fear we’ll continue this game of going back to the courts every four or five years.”
As for whether the Clean Water Act can threaten the U.S. economy, Adler is skeptical. “Anytime you’re implementing a statute on a nationwide basis, you will have isolated cases where it’s implemented too broadly,” he says. “But in most cases, the vast majority of permits are granted. The system is designed to protect aquatic ecosystems in ways that don’t impede businesses from operating.”
Life begins at 40
Aside from polluted runoff and legal ambiguity, experts also point to several other problems the Clean Water Act must contend with over the next 40 years — including some it scarcely encountered in its first 40.
But for the Clean Water Act to do its job, regulating more chemicals may not be enough, he adds. Like many environmentalists, he favors a more holistic approach to conservation. “If we care about water quality, we might also care what’s coming out of the air and affecting our water,” he says. “Our environmental and health laws are very compartmentalized — Clean Water Act, Safe Drinking Water Act, Clean Air Act — but the problems are all interconnected.”
Holman also sees benefits to melding certain laws, noting how pollutants can shift around the environment instead of vanishing. “We’re making great strides with the Clean Air Act, but a lot of the stuff that gets scrubbed out of smokestacks can pollute water,” he says. “Having a more integrated policymaking approach would allow us to better weigh the different tradeoffs and make better decisions.” Adler agrees, citing Congress’ habit of drawing artificial lines in nature. “Why do we separate the management of water quality and water quantity?” he asks. “Why do we separate groundwater and surface water when they’re hydrologically connected?”
But despite the potential confusion and loopholes, Adler also worries about losing what has worked. “What frightens me a little is the notion that we scrap the existing regulatory regime and start over,” he says. “I don’t want to throw out the baby with the bathwater.” From a regulator’s perspective, integrating laws may even be superfluous, Greenberg adds. “I suppose there are ways it could work, but we have plenty of chances to do that under existing laws,” he says. “It comes down to people in my office working together — water-division people talking to air-division people about a certain facility, that kind of thing. That’s our primary strategy right now.”
“From my own experience, there has been a change in the environmental ethic of the general population, and the regulatory population as well,” he says. “People are just more responsible about their environment. That’s one of the real sea changes I’ve seen over the last 40 years.”
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