Glad fiftieth Anniversary, Federal Clean Water Act
One among America’s Foundational Environmental Laws Has Proven Transformational, But Requires Updating a Half-Century Later
The Clean Water Act (CWA), one among the nation’s most significant environmental laws, is 50 years old today. It’s proven to be one of the successful of America’s bedrock federal environmental statutes. However the CWA is removed from perfect, needs some vital updating, and can probably never fully achieve the aspirational goals Congress proclaimed in 1972.
The political movement culminating in passage of the Clean Water Act was triggered by several environmental disasters within the late 1960’s that shocked Americans and motivated them to take motion to scrub up the nation’s heavily-polluted waterways. Foremost amongst them were two events in 1969: the Santa Barbara offshore oil spill in January 1969 and, five months later, a heavily-polluted Cuyahoga River catching on fire in Cleveland, Ohio. (The Cuyahoga actually burst into flames on account of industrial pollution at the very least a dozen times.)
These and other water pollution disasters spurred Congress into motion. Led by Democratic Senator Edmund Muskie from Maine, a remarkably bipartisan Congress enacted the CWA by overwhelming numbers: the Senate passed the laws unanimously, and the House of Representatives by a 340-14 vote. Largely lost in history is the indisputable fact that on October 17, 1972, President Richard Nixon vetoed the bill, citing the $24.6 billion it was estimated to cost to implement the CWA and based on Nixon’s stated desire to lower federal spending to curb inflation. Undeterred, Congress convened the very next day and overrode Nixon’s veto–again, by overwhelming, bipartisan margins in each houses–on October 18, 1972.
The CWA as enacted a half-century ago was enormously ambitious and, with the advantage of hindsight, quite naive: within the law’s legislative findings, Congress declared that “it’s the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.” That obviously didn’t, and won’t, occur.
Nevertheless, and with the possible exception of the Clean Air Act, no law enacted as a part of the outpouring of federal environmental laws within the 1970’s has proven more successful and transformational than the CWA. The nation’s rivers, streams, lakes and ocean waters are dramatically cleaner and healthier than they were a half-century ago.
That’s primarily on account of two key features of the CWA: first, a nationwide permit system designed to mandate aggressive application of pollution control technology to limit pollution from “point sources” comparable to factories and power plants. The second feature is a large infusion of federal funding to state and native governments to upgrade sewage treatment plants across America.
One other key element of the CWA is its incorporation of “environmental federalism” principles. Subject to federal review and approval (and incentivized by generous federal funding), willing states were allowed to assume responsibility for administering and enforcing the CWA’s federal permit systems. California was the primary state to hunt and acquire this delegation of federal CWA authority in 1972, and most–but not all–states have since done in order well.
Yet one more vital element of the CWA has been its incorporation of the principle of personal enforcement. In virtually all other nations, enforcement of water pollution control and other environmental laws is the only real responsibility of presidency regulators. However the CWA authorizes and incentivizes private residents and organizations to implement the statute as well. Today, the private enforcement model is replicated in lots of the nation’s environmental laws. But much more private enforcement actions are brought under the CWA than some other federal environmental statute. And the number of personal CWA enforcement lawsuits far exceeds those brought by federal and state regulators.
But 50 years after its creation, the Clean Water Act has proven substantially less effective in other areas. Non-point source pollution–comparable to from agricultural or timber harvesting activities–has been far tougher to abate under the Clean Water Act, and is now a more serious environmental threat than water pollution from point sources. And essentially the most politically-contentious and unsettled feature of the CWA is a separate program Congress included within the CWA to manage and limit the dredging, filling and destruction of our nation’s wetlands. Remarkably, a half-century after the CWA’s passage, the geographic reach of the Act’s authority to manage and protect American wetlands stays unsettled. (The U.S. Supreme Court is currently wrestling with that jurisdictional issue in a serious CWA case–Sackett v. U.S. Environmental Protection Agency.)
Finally, several key issues have arisen over the past 50 years that Congress ignored or was wholly unaware of in 1972. Perhaps essentially the most consequential is climate change, a phenomenon of which Congress was ignorant when it passed the CWA. Moreover, the rise of the environmental justice movement, and the actual needs of underserved and minority communities with regards to water pollution, is nowhere reflected within the CWA. Finally, some particular types of water pollution–like plastic and micro-plastic pollution–have develop into critically problematic lately, although federal and state regulators have largely been unable to deal with and abate their environmental impact under the CWA.
With the present congressional gridlock over environmental (and plenty of other policy) issues, it seems unlikely that Congress can or will act to repair these glaring gaps within the CWA anytime soon. So the immediate query is whether or not federal and state executive branch agencies will give you the chance to accomplish that through their regulatory processes.
In sum, we will and will have fun the various successes of the Clean Water Act and the indisputable fact that it has dramatically reduced water pollution levels in the US. But as we commemorate the primary 50 years of the CWA, we must always redouble our efforts to reform those features of the Act which have haven’t been as successful, and to include additional components within the statute that address the environmental and societal challenges of the twenty first century.
