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Clean Water Act

After the Cuyahoga River caught fire in Ohio in 1969, new pressure was exerted on the federal government to increase its role in reducing water pollution in America. The efforts culminated in the Clean Water Act, enacted on October 18, 1972. Several important amendments have since followed.

The Clean Water Act creates a number of programs and regulations to reduce direct pollutant discharges into waterways, finance municipal waste-water treatment facilities, and manage polluted runoff. These programs and regulations are established to meet the CWA's broad objective "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." The Act focuses on surface water quality and does not deal directly with ground water or with water supply issues. Like the original Clean Air Act, the CWA adopts primarily a command-and-control approach to regulation and lacked any market-based incentives to control water pollution.

No one wants polluted waters in America. Free market and limited government proponents see pollution as a violation of property rights. Environmentalists naturally see pollution as destruction of the environment, which is something to be avoided. Most Americans just want clean water.

Free market and limited government critics of the CWA take aim at the broad regulatory powers given to the Environmental Protection Agency before any substantial work was done to identify the overall condition of America's water ways. For instance, for the 2004 reporting cycle, over thirty years after the CWA was enacted, the EPA could only report on the condition of roughly 16% of the streams and rivers in America.

Today, many Americans, not just free market and limited government types, question the effectiveness of the CWA and wonder if there might be a better way forward.

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Forty years ago, Cleveland's Cuyahoga River caught fire. It was not the first time a river (even the Cuyahoga) caught fire, but like Apollo 8's earthrise photos, it became an important event in the raising of awareness of environmental issues in America.
Sherwood Boehlert's position is that the environmentalists are too extreme in their views and goals, but that the opposing libertarians are also unrealistic in their belief in state's rights and deregulation.
Congress had an open debate on a law which became the Clean Water Act. Among other things, it added to the jurisdiction that the Army Corps of Engineers had over navigable waterways.
This article briefly describes what was at stake in the case of Exxon Shipping Co. v. Grant Baker.
This release by the Washington Legal Foundation briefly describes the consequences of the decision in Exxon Shipping v. Grant Baker, especially with regard to the Court's curtailment of punitive damages.
Although statistics are hard to come by, most [environmental] citizen suits appear to be filed under the Clean Water Act and the Resource Conservation Recovery Act (RCRA).
Reps. Oberstar and Waxman have called out the Environmental Protection Agency (EPA) for not properly enforcing the Clean Water Act, and have demanded 'the agency provide Congress with information about its enforcement process.'
The bill targets the very heart of the Clean Water Act: the notion that a federal backstop is needed to ensure that states don't give a pass to polluters.
n her questioning of Elena Kagan yesterday, Sen. Dianne Feinstein (D-CA) asked about the degree to which courts should defer to agency constructions of statutes, pointing to a 2006 Supreme Court decision regarding the Clean Water Act (CWA)....
The 'polluter pays' rhetoric is still often used, and most Americans probably think that current environmental policies make polluters pay. In truth, however, this approach is seldom embodied in American environmental laws.
The Cuyahoga, which runs through northeastern Ohio and outlets into Lake Erie in Cleveland, was heavily contaminated -- so much so that stretches of the waterway contained no life at all.

"There is little doubt that very small trace amounts of natural and synthetic drugs are showing up in waterways in some parts of the country. For instance, a stream study by the U.S. Geological Survey states: “Results show that a broad range of chemicals found in residential, industrial, and agricultural wastewaters commonly occurs in mixtures at low concentrations in streams in the United...

Thousands of the nation’s largest water polluters are outside the Clean Water Act’s reach because the Supreme Court has left uncertain which waterways are protected by that law, according to interviews with regulators.
The Cuyahoga fire was a powerful symbol of a planet in disrepair and an ever-deepening environmental crisis, and it remains so to this day.
This article addresses the decisions made by the Supreme Court in Rapanos v. United States and Carabell v. United States that placed limitations on the scope of the Clean Water Act.
Like Waxman-Markey, the CWRA would do much more harm than good, especially for farmers, ranchers, developers, energy producers, and other property owners.
Before passage of the Clean Water Act (CWA), the right to pollute water was determined primarily by state common law rules of nuisance and of water rights. The common law rules were strict.
The TMDL regulations aim to achieve a stated goal of the Clean Water Act—to restore 'the chemical, physical, and biological integrity of the nation’s waters.'
With Earth Day about a month away, Americans tell Gallup they worry the most about several water-related risks and issues among nine major environmental issues. They worry least about global warming and loss of open spaces.
This article questions the need for the CWA, explaining that only around 10% of our nation's waters are in trouble ("according to contemporary estimates"). The authors go on to cite the EPA's lack of responsiveness to Congress's calls for information.
Climate change plays a role here: as sea levels rose, Tuvalu's groundwater became increasingly saline and undrinkable, leaving the island dependent on rainwater.

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At least three in four Americans surveyed in Gallup's 2011 Environment poll say they worry a great deal or a fair amount about contamination of soil and water by toxic waste....
The Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387, has its origins in a series of Federal acts aimed at preventing the discharge of pollutants into the nation’s waters (see Figure One).
Total U.S. estuarine square miles estimate based on 2004 state Integrated Reports.
Total U.S. lake acreage estimate based on 2004 State Integrated Reports.
Total U.S. river and stream miles based on state 2004 Integrated Reports. Percents may not add up to 100 because of rounding.
Wetland losses have dropped dramatically since the inception of federal wetland regulation. That is certainly true, but wetland loss rates began to decline well before a federal judge decided that Section 404 of the Clean Water Act regulated wetlands.

Analysis Report White Paper

This comprehensive almanac details the state of many environmental concerns, including air pollution, water pollution, climate change, and energy.
This report presents a summary of the law, describing the essence of the statute without discussing its implementation.
The Clean Water Act and CERCLA should be revised so that liability attaches only if a new site owner leaves the site in worse condition than before. Such a law would encourage additional mining and additional cleanup.
This paper revisits the fable – or rather fables – of the Cuyahoga and their implications for environmental law.
This report explains that, "Well-intentioned laws, such as the Clean Water Act (CWA), operate in a one-size-fits-all manner, ignorant of the vast environmental differences between Fargo, North Dakota, and Tuscon, Arizona.
This article examines how the CWA (i.e. the EPA and Army Corps of Engineers) have overstepped the bounds of the legislation.
Rapanos v. United States is the latest episode in the serial effort to identify the precise meaning of 'waters of the United States' under the Clean Water Act.
This study assesses the overall effectiveness of the Clean Water Act. It also gives a good account of the history of water pollution control from the federal level.
When the Clean Water Act of 1972 was enacted, few in Congress thought that Section 404, which bars the deposit of dredge or fill material in navigable waters, authorized the U.S. Army Corps of Engineers to regulate the filling of wetlands.
In 1989, developer John Rapanos deposited dirt onto a portion of his property near Midland, MI. This was illegal, according to the U.S. Army Corp of Engineers, as Rapanos’ property contained federally designated wetlands....
The purpose of this PERC Policy Series paper is to show, by examining specific cases in American and English history, that strong legal traditions enabled ordinary citizens to protect their air, land, and water, often against politically potent parties.
The Article concludes that courts should interpret the Act to include any non-navigable waters, wetlands, or tributaries that possess a significant hydrological nexus with navigable waters.
The federal Clean Water Act prohibits the unpermitted discharge of pollutants, including dredged or filled material, into 'navigable waters,' further defined as 'the waters of the United States.'
The article reviews the arguments in favor of taxes and traces the history of the idea in U.S. policy debates. The article also addresses the question of why effluent taxes are so rarely seen in practice.

Video/Podcast/Media

Panel discussion on the Clean Water Act in the wake of the Rapanos decision, as well as Rep. James Oberstar's (MN) Clean Water Restoration Act of 2007 that would "fix the Clean Water Act," according to the Congressman's website.
This video gives a brief history of the beginnings of EPA, the regulatory measures it enacted, and President Nixon's dislike of the new environmental bureaucracy.

"This video exposes yet another of Obama's radical leftist appointments, EPA head Lisa Jackson. From indoctrination of our youth through the Boy's and Girl's Clubs of America, to fear mongering in a speech to LULAC, to playing the race card in front of BIG (Blacks in Government), Jackson covers all the Environmental Justice bases."

EPA Administrator Lisa Jackson testifies that Clean Water Act enforcement is compromised by the confusion over which waters are protected under the Act.

"In economic activity, there are sometimes ‘externalities’ or spillover effects to other people not involved in the original exchange. Positive externalities result in beneficial outcomes for others, but negative externalities impose costs on others. Prof. Sean Mullholland at Stonehill College addresses a classic example of a negative externality, pollution, and describes three possible...

"Fox News looks at the Clean Water Restoration Act, which threatens to dramatically expand the regulatory reach of the federal EPA, threatening the rights of property owners and delaying thousands of economic activity projects."

On Wednesday July 13th Congressman Shuster delivered remarks on the floor of the House on federal over-reach in the regulation of clean water issues that should be best left to states.
[T]housands of the largest water polluters in the United States are outside the Clean Water Acts reach because the Supreme Court has left uncertain which waterways are protected by that law.
This video explains why Obama's EPA is different and more dangerous than any other since the agency was created.

Primary Document

Before the Clean Water Act, water quality in many, many parts of our country was simply deplorable.
I’m glad to be here to join you all to talk about the Obama Administration’s broad commitment to protecting and preserving clean water in America.
By the authority vested in me as President by the Constitution and the laws of the United States of America and in furtherance of the purposes of the Clean Water Act of 1972....
For a long time, therefore, Americans have stood as one in saying no to things like dirty water and yes to giving our children an environment as unspoiled as their hopes and dreams.
Cornell University Law School's site features the United States Code collection. This link will take you to the specific legislation enacting the Clean Water Act in Chapter 26 of Title 33.
I am pleased to sign the Clean Water Act of 1977, which amends the Federal Water Pollution Control Act of 1972. This act reaffirms our national commitment to protect the quality of our waters and the health of our people.
In this case, regarding the spill of the Exxon Valdez supertanker off the coast of Alaska, the court ruled that the size of punitive damages exacted upon the injuring party should be directly proportional to compensatory damages paid.
This year, the 20th anniversary of the Clean Water Act reminds us that we are all stewards of our water resources, and, as such, we are responsible for their preservation and wise use.
On October 18, 2002, our Nation marks the 30th anniversary of the Clean Water Act and begins the Observance of the Year of Clean Water.
An act to amend the Federal Water Pollution Control Act to preserve the authority of each State to make determinations relating to the State’s water quality standards, and for other purposes.
The Clean Water Act (CWA) is the cornerstone of surface water quality protection in the United States. (The Act does not deal directly with ground water nor with water quantity issues.)
The second bill we will sign today will enhance the quality of life for every American-the Clean Water Restoration Act will give us the power to rescue the once clear waters of our streams and our rivers and our lakes from the growing menace of pollution.
Under the CWA, the EPA is required to report on the condition of America's waters that fall under the legislation's jurisdiction. The link is to the EPA's report for the 2004 cycle dated January 2009.
This Supreme Court case of 2006 dealt with the case of John Rapanos, who backfilled his own property, parts of which held "sometimes-saturated soil conditions," but were also eleven to twenty miles away from the nearest "navigable water."
In 1970---2 1/2 years ago---I sent a sweeping, 37-point environmental message to the Congress, proposing a wide range of pioneering new legislation to control air and water pollution and to provide more parks and open spaces within reach of urban areas.
The pollution of our rivers, lakes and streams degrades the quality of American life. Cleaning up the Nation's waterways is a matter of urgent concern to me, as evidenced by the nearly tenfold increase in my budget for this purpose during the past four years.
I am withholding my approval of S. 1128, the 'Water Quality Act of 1986.'
This bill sought to expand EPA jurisdiction over American waters after the Supreme Court ruled that their reach was too expansive. The bill failed to become law.
This Supreme Court ruling worked to curtail the scope of the Army Corps of Engineers ability to regulate certain isolated and unconnected bodies of water....
The Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387, has its origins in a series of Federal acts aimed at preventing the discharge of pollutants into the nation’s waters.

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