The Clean Water Act: Promises half kept at half-century anniversary

Fifty years ago this spring, the U.S. House of Representatives voted 380 to 14, with overwhelming Republican and Democratic support, to approve one of the most ambitious laws in American history: the federal Clean Water Act.

Inspired by flames on the Cuyahoga River in Ohio and shame over a reeking Potomac running along the nation’s capital, the landmark legislation finally became law in October 1972, after the Senate and House voted to override President Nixon’s veto.

The Clean Water Act aimed for all waters across the U.S. to be “fishable and swimmable” by 1983, and for the complete elimination of all pollution into America’s navigable waters by 1985.

There is no question that, in its first three decades, the act drove substantial improvements in many rivers and streams, which are no longer open sewers or stained orange by acid draining from coal mines. The law directed more than $1 trillion in federal investments into modernizing wastewater treatment plants across the country. But the progress slowed over time, and a half-century later, the law remains far from its ambitious goals.

Today, 50 percent of the 1.4 million miles of rivers and streams that have been studied in recent years are so polluted they are classified as “impaired,” meaning that they have so much fecal bacteria, mercury, nitrogen, phosphorus and other pollutants that they are not suitable for either safe swimming, kayaking, fishing, drinking water or other uses, according to the most recent state reports to the U.S. Environmental Protection Agency (EPA).

While some states are making valiant efforts to protect their waterways with limited resources, stark examples of the law’s failures include the vast toxic algal blooms that spread nearly every summer across Lake Erie in Ohio, the spilling of lagoons full of millions of gallons of hog waste into North Carolina rivers, and the metastasizing “dead zone” of oxygen-deprived water at the mouth of the Mississippi River.

Despite some regional differences, state surveys show that most water pollution is caused by a handful of big problems driven by key pollutants. These include high bacteria loads, algae growth and poor oxygen levels in waters overloaded with nitrogen or phosphorus, as well as muddy waters suffocated by too much sediment. Factories, wastewater treatment plants and runoff from city streets or construction sites all contribute to this pollution. But in many states, huge livestock operations and crop farming on an industrial scale are the primary culprits.

In some ways, the act’s failures grew from weaknesses built into it from the beginning by Congress, for political reasons. The largest single source of water pollution nationally is the runoff of manure and chemical fertilizer from farms. Congress, while it debated the bill back in 1971 and 1972, decided against strongly regulating this so-called “nonpoint source pollution” because of opposition from the powerful farm lobby. 

After 50 years, the Clean Water Act could use a reboot to eliminate this farm loophole and fix other chronic problems. We need to face the fact that voluntary programs to reduce the runoff of pollution from farm fields are never going to be enough. Unfortunately, because of the gridlock in Congress, any such legislative repair is unlikely.  However, EPA and the states can do more today to exercise the authority they have. 

While crop farms are largely exempt from the Clean Water Act, the law requires large livestock operation to have water pollution-control permits and to comply with these permits. Both EPA and many states have failed to require or enforce these Clean Water Act permits for so-called “Concentrated Animal Feeding Operations” or CAFOs, even though this factory-style farming produces more than 266 billion pounds of manure each year, far more than can be used as fertilizer by local cropland. That’s about 13 times more than the human feces produced every year by Americans. But human sanitary waste, by law, must be treated in tightly regulated wastewater treatment plants, and not just sprayed or dumped in fields, as most livestock waste is handled today. EPA and the states have the power right now to more closely regulate these CAFOs to fulfill the Clean Water Act’s promise of “fishable, swimmable” waters for all Americans.

There are other steps the federal and state governments can take today. For one thing, they should stop eliminating the jobs of scientists and regulators. Between 2008 and 2018, budget cuts slashed 2,744 jobs at EPA and 4,400 positions at state environmental protection agencies.

Other barriers to reaching the Clean Water Act’s ambitious goals include too little enforcement, grossly outdated EPA standards for industry, over-reliance on voluntary cleanup plans and EPA’s lack of political appetite to create pollution limits for multi-state watersheds like the Mississippi River basin.

To get the fishable and swimmable waters promised 50 years ago, we also need a more uniform set of water quality standards to keep algae and bacteria out of our waterways and to ensure that oxygen levels are high enough and sediment concentrations low enough to support aquatic life. It makes no sense for different states to have conflicting standards for core pollutants found almost everywhere or to measure bacteria or nitrogen levels in a dozen different ways, especially for the many rivers or watersheds that cross state lines. 

Ideally, we’d celebrate the 50th anniversary of the Clean Water Act by strengthening the law, but that would be a tall order in today’s dysfunctional Congress. So, we can do much more with the law we already have.

We just need to strengthen our political will to finish the work of a landmark law that has already accomplished so much for America’s waterways over the last half-century.

Eric Schaeffer is executive director of the Environmental Integrity Project and former director of civil enforcement at EPA.