It’s Not Called the Cleaner Water Act

America’s waterbodies are imperiled as never before.

The words are not mine. That is how former EPA Administrator Lisa P. Jackson described the state of the nation’s waters in a January 12, 2010 memo to EPA staff.

Today, our waters are still “imperiled as never before.” Why?  Because we have failed to achieve the policies and goals of the 1972 Clean Water Act; and failed in spectacular fashion. Worse, though the law’s key goals have expired unachieved, successive Congresses have not created new goals or the dates by which to meet them.

The public can be forgiven for having a different impression. Though the law is the subject of criticism (examples: American Rivers and Duke University), the praise regularly heaped upon the Clean Water Act paints an inaccurate portrait of a tough, effective law that is ending pollution.

The commentary by the National Wildlife Federation on the law’s 40^th anniversary is characteristic:

This landmark act has ensured, and will continue to ensure, that America’s waters are fishable, swimmable, and drinkable. Since its inception, the Clean Water Act has logged numerous successes: it has prevented pollution by providing assistance to publicly-owned wastewater treatment facilities, and maintaining the integrity of wetlands.

Most environmental organizations assert a similar view to NWF’s. Praise helps insulate the Clean Water Act from political attack. But it also blunts the law’s sharpest critiques, and obscures its profound shortcomings.

The praise aimed at the Federal Clean Water Act today is wearing thin and is increasingly unearned.

After forty years, how close are we to clean water? First, some facts about our most ambitious environmental law.

Senator Edmund Muskie, the architect and chief sponsor of the 1972 Clean Water Act was determined to craft a statute that would end pollution, not just control it.  The Act had a dual objective to:

• Restore the chemical, physical and biological integrity of the nation’s waters.
• Maintain the chemical, physical and biological integrity of the nation’s waters.

We are generations away from achieving even the first.

How was the Act to get us there?  Here are some milestones taken directly from the statute:

• It is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;
• It is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983;
• It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited;
• It is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution.

But we are staggeringly distant from these objectives, goals and policies. Consider:

• More than 200,000 facilities still have legal permits to discharge industrial and municipal pollutants. (The New York Times)
• Approximately 17.7 million lake acres and 1.3 million river miles were the subject of fish consumption health advisories in 2010, representing 42 percent of the nation’s total lake acreage and 36 percent of the nation’s total river miles. This does not include all state advisories. (EPA)
• 41,509 water bodies in the United States are designated as impaired, with more than 25% of those due to pathogen contamination. (EPA)
• 19.5 million Americans are made ill annually by drinking water contaminated with bacteria, viruses and parasites. (University of Arizona College of Public Health)
• Mercury was detected in all fish sampled from 291 streams across the United States.  (USGS)
• 40% of the nation’s coastal beaches experienced at least one closure due to pollution in 2012, causing a loss of more than 20,000 beach days. (EPA)
• CSOs (combined sewer overflows), which collect and discharge rainwater, industrial wastes and sewage wastes in one pipe, are present in 772 communities with a combined population of 40 million people. (EPA)
• SSOs (sanitary sewer overflows), overflows of raw or partially treated sewage from municipal facilities, occur in almost every municipal system in the nation, totaling approximately 40,000 incidents each year. (EPA)

Some nonpoint pollution facts:

• The agriculture sector is the leading contributor of pollutants to lakes, rivers, and reservoirs. States with high concentrations of concentrated animal feeding operations experience on average 20 to 30 serious water quality problems per year. (CDC)
• In watersheds that are largely agricultural, nitrogen from commercial fertilizers accounts for 84% and higher of the total nitrogen added to the watersheds. (USGS)
• At least 1 pesticide was found in more than 95 percent of stream samples; about two-thirds of the samples contained 5 or more pesticides. (USGS)
• Insecticides that were used in the past–especially DDT, dieldrin, and chlordane-still persist in streams and sediment. (USGS)

The unfortunate hyping of the Clean Water Act by its supporters has also fostered the false notion that the law’s purpose was to achieve progressively cleaner water over a prolonged, undefined period of time. In fact, the law’s goal was to achieve clean water according to measurable, date-certain goals, as described above.

With the passing of those goals, however, I know not one state or federal environmental attorney who believes that clean water can any longer be the true objective of his or her agency. And only Congress has the authority to amend the law’s explicit provisions.

Of course, it must be stipulated that the condition of the nation’s waters is better now than before the Clean Water Act or the decades immediately following its passage. But improved water quality was the new normal twenty years ago. Forty years after enactment, the praise aimed at the Act is wearing thin and is increasingly unearned.

Administrator Jackson had it right when she wrote, “America’s waterbodies are imperiled as never before.” How can it be other when the most ambitious environmental law in the nation’s history has failed at its chief goals, successive Congresses have failed to make the course corrections only they can make, and pollution still ravages the nation’s waters and endangers human and ecological health?

In future posts we will examine the reforms necessary to make the Clean Water Act relevant again, and the political obstacles that stand in the way.