This is my what’s-up-with-water-on-Earth-Day post. Alas, it is a few days late, but every day is Earth Day, right? Truthfully, every day is a day with too much on the to-do list, and this one slipped. Anyhoo, please forgive the delay.
On Earth Day each year, a bevy of media stories remind Americans that rivers used to catch on fire and raw sewage floated around major cities. I am just as happy as the next environmentalist to honor Earth Day, but what I really like to celebrate is the law that stopped the fires and got rid of the sewage: the Clean Water Act.
Both the law and Earth Day grew out of the same spirit 40 years ago: a realization that pollution was pummeling our environment and a belief that we could stop it.
Four decades later, I use the Clean Water Act every day in my work, and I am awed by what it has accomplished. Yet there are days where I want to pull my hair out because I see entire classes of pollution get a free pass under the law, or critical water bodies being denied its protection.
Like anyone or anything nearing 40, it’s worth asking whether the Clean Water Act has lived up to its potential. Not quite, but it’s done a lot. The Act has transformed the way Americans view water. We used to treat water bodies like big wet trashcans--free and convenient places to dump everything from oil to chemicals to sewage.
The Clean Water Act changed that. By creating a legal obligation to control pollution, it put a value on the preservation of water bodies. And as water bodies got cleaner--even the famously burning Cuyahoga--Americans started to appreciate them more. People actually use the Cuyahoga, the Potomac (to which the small stream pictured below drains), the Hudson, and the Chesapeake for something other than dumping now.
The Clean Water Act accomplished this remarkable feat in two central ways. First, it prevented factories and other major sources from polluting without prior authorization--such as a permit. This requirement gives pollution control experts a chance to look at a discharging facility and insist on operating conditions that minimize pollution and consider how much pollution the receiving water body can withstand.
Second, it created technology standards--standards which ensured that as part of the cost of doing business, companies had to plan to minimize their discharges as much as possible. These standards apply no matter where you go in the country, and this “floor” of minimum control levels means that there is a consistent set of basic expectations. In other words, polluting waters in Colorado typically will mean the same thing for an industry as polluting waters in Rhode Island. This helps avoid state-shopping by companies seeking to minimize their regulatory obligations.
These mechanisms helped the Clean Water Act change the nature of how most companies interact with water resources. Yet there are still pollution problems that remain beyond the reach of the law, either because of the law’s basic structure, or because of problems that did not arise from the Act, but from misapplication of it.
In the first camp, the Clean Water Act doesn’t control diffuse sources of pollution like runoff from agricultural fields nearly as well as it deals with typical industrial and municipal facilities. This means that in places like the Chesapeake Bay and the Gulf of Mexico, some of the most troublesome pollutants-- phosphorous, nitrogen, sediment--go largely unregulated.
Similarly, the Act is limited in its ability to drive restoration. The law protects what we have against harm, but a whole lot of harm was inflicted before it was passed. Wetlands and floodplains--natural systems that filter and replenish water supplies--were decimated or disconnected from other parts of their watersheds, and yet the Clean Water Act doesn’t guide us in how we can revive wetlands, reconnect rivers with their floodplains, and make waterways more resilient to the impacts of climate change.
Adequately addressing these kinds of water quality stressors under the Act would improve the law greatly. For example, Congress is currently considering a Clean Water Act amendment focused on a watershed that is burdened by polluted runoff as well as conventional sources – the Chesapeake Bay – and the bill would hold states accountable for achieving necessary reductions from all sectors. This would be a welcome improvement. Congress is also weighing measures to incentivize efforts to enhance watershed resiliency; for instance, we have supported legislation to promote green infrastructure to reduce stormwater pollution from urban and suburban landscapes as well as legislation to promote planning by communities to adapt to the expected effects of climate change on water resources.
In addition to constructing these additions, policymakers who care about water should focus on the fact that the Act’s foundation also needs a big repair. As I’ve written a number of times before, the law desperately needs to be fixed to address the problems caused by two misguided Supreme Court decisions. There are now bills in both houses of Congress to do so, both of which represent compromises from prior legislative efforts in this regard, but which still retain the core aspect of restoring protections to a host of waters that have been cut out of the Act in the last decade or that are in legal limbo today. Expeditious movement on these efforts is critical.
So, there you have it – the Clean Water Act on Earth Day (well, a week after). It’s still an amazing law, even as it prepares to enter middle age, but we shouldn’t shy away from improvements that will make it effective into its golden years.