A Cleaner Water Act

The Clean Water Act has been a success, but it’s out of date and producing diminishing returns. Here’s how we modernize it.

In 1969, I boarded a bus in the suburbs of Cleveland for a school trip with my fellow fourth graders into the center of one of the great industrial cities of the world. As we drove downhill past thriving neighborhoods and humming plants, my face was plastered to the window, in awe of the leviathan that we were rolling into. The bus took us to an area called the “Flats,” a neighborhood that traversed the Cuyahoga River, which snaked through the middle of Cleveland and delivered the lifeblood of coal, iron ore, and other resources that powered the city.

When we got out of the bus to explore some more, my classmates and I felt like we had stepped into a cloud of smoke. That morning’s fresh breeze had given way to a smelly cloak that hung heavily around us. Walking over to the river, we saw what looked like a finger painting—water that swirled with colors and emanated aromas that cut through even the smoke that surrounded us.

“The sweet smell of success,” the bus driver exclaimed.

Our class became environmentalists right then and there, even if we did not know quite what that meant. When I got home, I wrote a letter to President Nixon asking him to help protect the planet for kids. My career in some respects was set that day.

That year, the Cuyahoga caught on fire from the sparks of a passing railcar. That and other highly visible eco-catastrophes of the era created the consensus that led to the surge of environmental legislation in the 1970s. The National Environmental Policy Act, signed on New Year’s Day in 1970, envisioned a federal government that protected the environment, and a reorganization plan proposed by President Nixon later that year created the U.S. EPA. The Clean Air Act in 1970 initiated regulation of pollution befouling the air. And, especially gratifying for the kids on that class trip, the Clean Water Act was passed over a Nixon veto in 1972.

Four decades after the Clean Water Act’s passage, it’s safe to say that it has been a rousing success. Seventy species of fish swim the Cuyahoga again (ten fish in total were found when formal fish counting began in the 1980s!), and the rivers that course through our major cities are healthy and thriving. The Clean Water Act should be celebrated for what it is—a flagship environmental achievement, one of the great government success stories of our time.

But that is not the end of the story. For the act has been a victim of its own success. As our rivers get increasingly cleaner, so too are costs going higher and complaints of government overreach growing louder—and, to a certain extent, more justified. Critics highlight billions of dollars spent on tiny improvements, while new sources of pollutants flow into bodies of water almost untreated. Improvements have stalled and new stresses like toxic red tides and oxygen-destroying algae blooms have become more prevalent. To ensure that our waters remain clean for another 40 years, we need to update the Clean Water Act for a new era, one that poses different challenges than those we faced four decades ago.

A Rousing Success

The act owes its success to a feature borrowed from a nineteenth-century law designed to keep trash out of the growing country’s harbors. The Rivers and Harbors Act of 1899 prohibited the discharge of refuse into the navigable waters of the United States and their tributaries. With that statute, the act of polluting was for the first time deemed unacceptable and outlawed whether or not the refuse caused direct harm. A polluting boat captain could not claim as a defense that the harbor was fully navigable despite the refuse, or that the trash would wash away harmlessly.

Edmund Muskie, the Maine senator who championed the 1972 Clean Water Act, translated this principle into a groundbreaking “technology-based” permitting system. Discharging pollution from “point sources”—mostly wastewater plants and factories with specific discharge pipes—was prohibited unless a permit was issued. Recognizing that wastewater and industrial plants would not be able to eliminate pollution overnight, the permits required the implementation of technologies to reduce pollution with standards that became more stringent over time. Gradually, pollution would be eliminated from our waters.

Companies tried to duck the law by claiming that certain waters were so big that pollution was diluted to a harmless state. Others argued that requiring the best technology would put them out of business. Still others argued that national technology standards trampled on state rights. Yet the bill passed, with the House overriding a veto by Nixon, who worried about the bill’s cost, by an astounding 247-23.

Ever since its passage, the courts, including the Supreme Court, have held that the law is constitutional for the most part. Dischargers must comply, courts have found, or face fines, sanctions, or even closure; in addition, they have almost no defense based on the health of the receiving body of water or the cost of the regulations. (Important questions do remain, particularly the extent to which the Roberts Court views the Commerce Clause as allowing the federal government to regulate local waters.)

Forty years after its passage, the act can be credited for the profound improvements in our waters. It has bolstered public health, our agricultural system, and the economies of our river and coastal communities. These improvements can be glimpsed close to the capital. In 1965, President Lyndon Johnson called the Potomac River a “national disgrace” because of its condition as a cesspool of sewage and industrial pollution. Today, the river is one of ten locations selected for a national bass fishing tournament, at a site just downstream from one of the largest wastewater treatment plants in the world. On the economic front, the Maryland Department of Natural Resources in 2004 placed the value of the Chesapeake Bay to Maryland and Virginia at more than $1 trillion, with an annual economic benefit of $33 billion to $60 billion.

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