The Clean Water Act Is Important — but a New Supreme Court Decision Limits It

A new ruling threatens the power of one of the most important environmental laws in the United States.

image of child's hands cupped for stream of water, Clean Water Act

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People care about the water they drink, bathe in and vacation by.  A 2021 Gallup poll found that more than half of the people in the United States are concerned about the purity of bodies of water or drinking water. Similar concerns during the 1960s and ‘70s resulted in the passage of the Clean Water Act (CWA), the primary piece of legislation tasked with protecting water quality

Through its programs, the law seeks to protect waterways from contamination by everything from forever chemicals to runoff from factory farms. The law has faced criticism both for being too strict – and also for not enforcing its standards strictly enough. Now, a recent Supreme Court decision places the country’s waters at risk by jeopardizing protections for wetlands. 

The decision, Sackett v. EPA, clarified the definition of “water of the United States” as meaning waters with a continuous surface connection to navigable waters. Unfortunately, this decision greatly limits the strength of the Clean Water Act and places numerous bodies of water at risk of contamination – either directly, or indirectly via tributaries. 

What Is the Clean Water Act?

The Clean Water Act is the primary U.S. law that governs the use of the country’s surface waters. Its precursor lacked goals or regulations relating to water, and instead focused on providing funds to states and municipalities to pursue research and manage their waters. Later versions of the bill focused exclusively on governing direct pollutants, such as contamination from sewage pipes. It wasn’t until 1987 that the provisions of the law were expanded to also cover nonpoint sources of pollution, such as runoff from farms

Perhaps one of the most significant provisions of the 1972 law was the creation of the National Pollution Discharge Elimination System under the Environmental Protection Agency. Under this program, the EPA, or states under EPA guidance, issue permits that control water quality and pollution by placing limits on how much and what can be discharged. 

The provisions of the Clean Water Act have historically been far-reaching and acted as a driving force for  consistently improving the way industries and municipalities handle waste. Sackett v EPA, considerably weakened the law, and jeopardizes the health of the country’s waters and the life it supports by limiting the definition of “waters of the United States.” In so doing, the Supreme Court allowed for some bodies of water to be polluted without permits. 

Though only certain bodies of water, such as wetlands, are not covered under the new definition, the decision is likely to have lasting implications, given the interconnectedness of water systems.

Why the Clean Water Act Matters

The catalyst for passing and then strengthening the Clean Water Act was a concern for not only the health of waterways, but for the general public. Let’s take a look at what the law is meant to address.

Health Implications of Water Pollution and Environmental Racism

A recent review published in Frontiers in Environmental Science outlines the significant health impacts of water pollution: depending on the pollutants, contaminated water can cause life-threatening diarrhea, gastrointestinal diseases, cancer, skin diseases and an array of other health issues. 

In the United States, minority communities often suffer the health impacts of water pollution  most. The most famous example of racial bias and water pollution is Flint, Michigan. The majority-Black municipality had their water source switched, leading to dangerously high levels of lead in drinking water. Meanwhile, nearby white towns continued to draw water from safe sources. 

Despite the interconnectedness of water pollution and clean drinking water, the CWA does not provide standards for drinking water, instead focusing on what is put into the water. The Safe Drinking Water Act is responsible for setting the quality standards of the water we drink

Factory farms are some of the worst polluters when it comes to water quality in the United States. They dump large amounts of contaminants, including nitrates — which are known carcinogens — into the water from animal manure. When impacted communities  take a stand by passing municipal codes curbing pollution from factory farms, they are often met with the considerable power and financial resources of animal agriculture. 

Despite the reality of environmental racism when it comes to both water quality and pollution from factory farms, the pork industry recently launched an aggressive new campaign focused on attracting the economic buying power of Black, Indigenous and all people of color consumers. 

Protecting U.S. Waters 

According to a 2022 White House document, the 1972 version of the act was enacted in response to the critical condition of the country’s water. The document, which celebrates the 50-year anniversary of the legislation, tells of highly polluted waterways, some of which would catch on fire due to heavy contamination by waste and cancer-causing chemicals.

The burning of the Cuyahoga River in Cleveland was one of the most alarming and well- remembered catalysts for the Clean Water Act. Polluted by steel mills, witnesses recall the river’s water constantly being slick with oil and bubbling, allowing the river to literally catch on fire. Though the river had burned several times, one fire on an early Summer morning drew the attention of the media and then the nation pushing the government to take action. The result was the creation of the EPA and the CWA. 

When Was the Clean Water Act Passed?

The Federal Water Pollution Control Act, the precursor to the Clean Water Act, was originally enacted in 1948. Since that original piece of legislation, the language of the law was amended ten times, most recently in 2014. As with all federal laws, the act, and all its subsequent amendments, were approved by Congress before being sent to the president’s desk for his signature. 

Is the Clean Water Act Still Enforced?

Through its funding program, the Clean Water Act has kept 700 billion gallons of would-be pollution out of the water since 1972. In that time, the number of waters that meet clean water goals has doubled. 

Despite the successes of the Clean Water Act, the EPA has been sued numerous times for inadequate enforcement of the legislation. While some of these cases have resulted in the agency taking action against bad actors, others left plaintiffs unsatisfied

Significantly, the breadth of the law has changed several times throughout the last several presidencies. The lack of clarity is due, once again, to that one deceptively simple term: “waters of the United States.” Depending on the president, their values, and donors, the meaning of that phrase has been broadened and then narrowed. 

But What Exactly Does The Clean Water Act Do?

The Clean Water Act protects the nation’s waters from pollution. It does this via a combination of incentives for municipalities, and permitting requirements for companies and other private entities. To accomplish this goal, the law uses a combination of technology-based standards, designated uses for individual bodies of water and water testing. 

Technology-based Standards

The EPA often uses technology-based standards to determine the limit on how much of a specific pollutant can be discharged into a particular body of water. The standards are based on studies of specific types of processing facilities. 

Water Quality Standards

The goal of the standards is to set a desired quality for specific bodies of water. Water quality standards of the law are made up by three pillars: designated uses for bodies of water, criteria for protecting waters and antidegradation requirements.

Designated Uses

Every body of water must have specific goals for how it will be used. For some, the purpose may be fish repopulation, while other bodies of water could primarily be used for recreation, or as a drinking water supply. 

Water Quality Criteria

There are four different water quality criteria: aquatic life criteria, biological criteria, human health criteria and microbial/recreational criteria. Each set of criteria is created with specific goals in mind. For example, the aquatic life criteria is  set to protect marine life from both short- and long-term exposure to pollution. 

Anti-degradation Policy

Per the EPA, “Antidegradation requirements provide a framework for maintaining and protecting water quality that has already been achieved.” This is accomplished via the application of water quality criteria and designated uses. 

General Policies

The major provisions of the Clean Water Act are a funding program incentivizing communities to reduce their water pollution, and consistent monitoring of water quality while limiting discharges. 

Laboratory Test Methods

In addition to their direct oversight, the EPA publishes test methodologies for governing bodies and corporations to follow when testing water for chemicals and pollutants in accordance with the CWA. 

Do We Still Need the Clean Water Act?

Isn’t There Less Pollution Going Into Our Rivers Now Than Ever Before?

Though the Clean Water Act has, and continues, to protect the country’s waters, there is still considerable need for stronger protections. A 2022 analysis of water pollution found that more than half of tested river and stream samples were too polluted for recreational activity

Aquatic life struggles to survive in such highly polluted waters. For example, in Florida – which ranked first for total acres of lakes impaired by water pollution — pollution is killing seagrasses, jeopardizing the future of animals that rely on them for food.

Don’t We Need to Relax Clean Water Safeguards to Spur Economic Growth?

Critics of the Clean Water Act claim that the act costs more than it is worth. However, what they often fail to consider is the money saved in public and personal health expenditures when water is clean. 

Does the Clean Water Act Protect Wetlands?

Whether the CWA includes wetlands is currently up in the air. Many wetlands would not meet the standards put forth by the Supreme Court under Sackett v EPA, which requires that waterways must have a continuous connection to a navigable body of water. Due to their nature, many wetlands fail this test – and therefore  are not regulated. 

Despite the recent court decision, the reality is that even when wetlands do not connect with other bodies of water year-round, pollutants discharged into them make their way throughout entire water systems. 

The Bottom Line

One of the best things that you can do to protect water quality is to be conscious of your water footprint — the amount of water you use. Eating less meat, taking shorter showers and not using sprinklers on your lawn can all help. The less water you use, the less wastewater there is to treat — and the more thorough that treatment can be. Reducing meat and dairy consumption can also have a major impact on water quality, as factory farms contribute heavily to both water pollution and usage. 

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