We need 50 more years of the Clean Water Act
Editor’s Note (5/25/23): Today, the US Supreme Court issued its ruling in Sackett v. Environmental Protection Agency. The Court found in a 5-4 decision that the US EPA had interpreted its powers too broadly. The ruling will limit the types of streams, wetlands and other bodies of water that the agency can protect under the Clean Water Act.
When a fire ignited Ohio’s Cuyahoga River on June 22, 1969, it wasn’t the first, nor the worst, time the notoriously dirty waterway caught fire. But the national media seized on it as a stark example of the dismal state of the nation’s waters after decades of unchecked sewage and industrial pollution.
Coming at a time of growing public concern for the environment, the fire was one of many issues that prompted Congress to pass ambitious, bipartisan, landmark legislation. In the 50 years since the Clean Water Act (CWA) was signed into law, the health of America’s rivers, lakes, and streams has improved. Pollution-sensitive insects, fish and birds have returned on the Cuyahoga, as have kayakers and recreational fishermen.
But the CWA is under attack in the court system by people who would undermine it, and there are multiple sources of contamination that current law doesn’t adequately address. The National Resources Defense Council reports that as of 2019, more than 80 percent of bays and estuaries and about 55 percent of rivers and streams harbored dangerous levels of at least one pollutant. For the sake of our health and economic prosperity, we need stronger protections for our waterways, and we need our courts to uphold the CWA against its current challenges.
An important question in the court debate is which bodies of water are covered by the CWA. The purpose of the law “is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” and to eliminate the “discharge of pollutants into navigable waters.” The Environmental Protection Agency and the Army Corps of Engineers, which administer the CWA, have always interpreted these mandates broadly. But the Trump administration issued rules in 2020 that excluded many wetlands and smaller streams on the grounds that they were not navigable and therefore not subject to pollution limits.
Although the Biden administration has proposed rules that would restore protections to small streams and wetlands, a Supreme Court case on the docket this fall could undermine them. In Sackett v. EPA, the petitioners argue that the wetlands on their property—and by extension millions of acres of other wetlands—are not covered by the law. But these wetlands connect with other navigable waters, and as 12 scientific societies have declared in an amicus curiae, that argument “rejects hydrological reality.” A river’s water cannot be adequately protected unless we also protect the many sources that feed it. Therefore, the Supreme Court must follow the science and rule in favor of the EPA. This ongoing legal dispute also underscores the need for Congress to strengthen the CWA using the best available science.
Congress must also finally address a longstanding problem: the CWA addresses point sources of pollution, such as factories and sewer systems, but it does not sufficiently address nonpoint source pollution: chemicals from parking lots, highways, fields and lawns that can be washed into waterways by rain or snowmelt. Farm and lawn fertilizers contain nitrogen and phosphorous, which have been shown to fuel toxic algae blooms from the Gulf of Mexico to the Chesapeake Bay and Lake Erie. Such blooms have contributed to fish kills, and in 2014 one made tap water in Toledo, Ohio, unsafe to drink.
Congress must take stronger action to curb this pollution, either by amending the CWA beyond a largely voluntary measure that exempts agricultural runoff or through other legislation that targets non-point sources. Policymakers need to work with farmers, ranchers, and scientists to develop strategies linked to clear metrics and provide tangible incentives. One example is a program to pay Florida ranchers to retain water and nutrients on their land. In addition, EPA is required to set environmental limits for nitrogen and phosphorus so that states will have to set standards for them under the CWA, which will help reduce point source loadings of these pollutants.
We have made remarkable progress toward the 1972 Congressional goal of removing pollution from the nation’s waters so that people can fish and swim in them again and draw drinking water from them. The Supreme Court and members of Congress now have the opportunity to uphold existing law and enact bold and visionary legislation, to live up to the legacy of their predecessors and ensure clean water for generations to come.