What’s the Clean Water Act, why is it important, and has it been a success?
In the late 1960s, many U.S. waters were little more than liquid waste dumps. The Cuyahoga River famously caught on fire, as did others. We lacked appreciation for the important functions of wetlands, like filtering pollution and curbing flooding, and allowed rampant destruction of them. And we failed to control the discharge of raw or barely-treated sewage all over the country.
These conditions were widely viewed to be unacceptable, so Congress responded and adopted the Clean Water Act. It was so groundbreaking that a prominent Senator described it as “perhaps the most comprehensive legislation that the Congress of the United States has ever developed in this particular field of the environment.”
The Act has helped us make enormous improvements, but we remain far short of achieving its aims. By virtually any measure, our water bodies are better off today than in 1972. Pollution from industrial operations and sewage treatment plants has been curbed significantly. Industry-specific discharge standards prevent more than 700 billion pounds of toxic pollutants every year. EPA has found that thousands of waterways now meet standards after once being too polluted to be used as states wished. And many of our nation’s most treasured waters, like the Chesapeake Bay and the Great Lakes, have substantially improved.
But the U.S. still has a long way to go before Congress’s vision of fishable and swimmable waters everywhere is achieved. Today, more than half of assessed waters still do not meet all goals that states have established for them. And the country continues to lose wetlands, despite their widely-acknowledged ecological benefits.
I. How does the Clean Water Act work?
The power of the Clean Water Act comes from the “comprehensive” scope it was designed to have. It includes pollution control programs for almost any kind of discharge you can imagine, and virtually every one of the Act’s critical safeguards applies wherever there is a water body that is considered a “water of the United States.” Those protections include:
- The national goal that pollutant discharges “be eliminated by 1985”;
- The absolute prohibition on discharging “any radiological, chemical, or biological warfare agent, any high-level radioactive waste, or any medical waste”;
- The core requirement that if an entity is going to discharge pollutants into waters from a pipe or similar conveyance, it must first apply for and obtain a permit that limits the pollutants allowed to be discharged;
- The obligation that states develop water quality standards protecting uses—like swimming or fishing—that the waterway should support and that EPA reviews to ensure they are adequately protective;
- EPA’s review of cleanup targets to restore impaired waters;
- The requirement to develop water body-specific control strategies to address toxic pollution problems;
- The obligation that states prepare biennial reports on water quality conditions;
- Protections against the discharge of oil or hazardous substances;
- The bar on a vessel that “is not equipped with an operable marine sanitation device” from operating in protected waters;
- The directive for states to develop management programs for pollution like agricultural runoff, and the related directive that EPA provide grants to assist with the implementation of such programs;
- The directive that applicants for federal permits (like pipelines) first obtain the state’s okay that the discharge will comply with various requirements; and
- Restrictions on the disposal of sewage sludge.
The federal law also empowers people affected by water pollution to go to court to enforce its critical safeguards.
Because these protections are triggered by the presence of “waters of the United States,” industrial polluters have long fought to shrink what qualifies for that designation to just the largest rivers and lakes in the country. Thanks to the Trump administration, they might soon get a lot of what they’ve wished for.
II. What does the Dirty Water Rule proposal say?
The proposal would end decades of protection for several different kinds of water bodies, namely rain-dependent streams, wetlands without specified surface water connections to other waterways, certain ponds, and interstate waters. Although some of these features might be protected under other parts of the rule (for instance, the rule protects waters you can float a boat on), there’s no question that this would be the biggest backtrack on Clean Water Act coverage in the 46 years we’ve had the law.
The justification for this retreat? The administration claims it is making the rules clearer so that it’s easy to figure out what is in and out, but that’s hogwash – the proposal fails to define critical terms (like how often a stream needs to flow to qualify for coverage) and acknowledges that essential facts (like whether a stream is fed by groundwater or what the “typical” flow of a water body is) are either difficult or potentially costly to ascertain.
What’s really going on here, then, is that the proposal is just a giveaway to polluting industry. Fewer water bodies are protected, which means fewer restrictions on polluting and destroying such waters, which means industrial polluters need to devote less resources to complying with pollution limits.
III. How bad will the Dirty Water Rule be for the country?
Here’s the most bananas part of the whole scheme—the administration claims not to know how many water bodies will be affected and says it’s unable for a variety of reasons to quantify the public health and environmental consequences of the proposal. If that’s true, it’s irrational and reckless.
The Clean Water Act is supposed to protect people from swimming in dangerously contaminated waters, catching fish that are unhealthy to eat, or drinking water supplies fouled by industrial pollution or sewage discharges. It also is a key restriction on wetlands destruction, which helps preserve their flood-protection functions. But the Trump administration wants you to just accept that it doesn’t know how prevalent those public health and safety threats might be if it persists with its plan.
The administration doesn’t even deny that its proposal could hurt people. In fact, they produced the figure below that traces some (but not nearly all) of the scary outcomes that could flow from restricting the coverage of just three Clean Water Act programs.
However, the administration—over and over again—says that it can’t reliably estimate the degree to which the nation’s waters will be affected by the proposal, much less the adverse impacts that will result from their scheme. I suspect that’s not because it can’t be done; my guess is that they’re hiding the ball to try to avoid the public outrage that would come from an honest assessment of the harm the proposal could lead to.
I think that’s also why EPA has assailed estimates of the potential impacts of the proposal and even disavowed prior work that the agency itself did, which indicates that at least 18% of streams and roughly half of the wetlands in the country would lose protection under the law.
Wow, that’s terrible. It couldn’t get worse, right?
The proposal is scary enough on its face, but what’s truly terrifying is that EPA has hidden a bunch of Easter eggs (rotten ones, that is) in the document, which would allow them to adopt a far worse final rule later. For instance, the proposal invites input on whether EPA should also exclude seasonal streams from federal protection, in addition to rain-dependent ones.
And the anti-clean water forces aren’t dumb—you can bet they’ll reinforce this message in their public posturing about the proposal and in their comments on it. In fact, in an opinion piece reacting to the Dirty Water Rule proposal, a senior attorney with the Pacific Legal Foundation—which commonly litigates cases challenging the implementation and enforcement of the Clean Water Act—argues that the proposal isn’t nearly aggressive enough in slashing protections. He claims that the “lackluster proposal” would still give too much authority to “overzealous enforcement bureaucrats” at EPA.
Is all hope lost?
This is not a done deal by any stretch of the imagination. The Trump administration must take public comment on the proposal, respond substantively to those comments, and will undoubtedly face a tidal wave of litigation if it persists.
And there’s a historical precedent for stopping these kinds of attacks. Early in President George W. Bush’s administration, EPA considered weakening these same protections, though far less drastically than the Trump administration’s proposal now. In response to overwhelming opposition from states, hunters and anglers, and other concerned citizens, that initiative was scuttled.
So, please tell the administration what you think—again, NRDC’s comment pagecouldn’t be simpler—and let them know that you don’t want them dumping all over your right to clean water.