11/28/11
Next year will mark the 40th anniversary of the Clean Water Act, a milestone for a series of landmark environmental laws that began with the creation of the Environmental Protection Agency in 1970. Those actions set our nation on a course to restore our damaged natural resources, but today, because of political pressures and court rulings, the extent and durability of some of those key protections are at risk.
Since its enactment in 1972, the Clean Water Act has encountered resistance from powerful business interests that have tried to fill wetlands, drain marshes, develop shorelines and allow pollution to flow off their property. One approach these developers have used to weaken the law has been to try to limit its jurisdiction, to say it shouldn’t apply to this or that water body. The rationale has always been to argue that the water on the particular property in dispute didn’t connect with interstate bodies of water and therefore should be exempt from federal regulation.
When the act became law, two-thirds of our nation’s lakes, rivers and coastal waters were unsafe for fishing or swimming, and untreated sewage and industrial waste was routinely dumped into our waters. The law was partly a response to the shock the nation experienced when the filthy Cuyahoga River in Cleveland erupted in flames. Since then, industrial pollution has declined significantly. Fish have returned to countless water bodies that were once all but lifeless. Progress has come in fits and starts — despite more litigation filed than the law’s proponents expected or wanted — but it is real and evident.
Still, there are reasons for concern.
One is the ambiguity introduced by two Supreme Court decisions — Solid Waste Agency of Northern Cook County v. Army Corps of Engineers in 2001 and Rapanos v. United States in 2006 — over which American waters fall under the law. The law was intended to protect “all the waters of the United States.” But the decisions can be taken to suggest that the law does not protect certain waterways — those that are within one state or that sometimes run dry, for example, and lakes unconnected to larger water systems. As a result, fewer waters are protected, and those who wish to build on land that requires dredging and the depositing of the fill elsewhere face confusion, uncertainty and delay as federal regulators try to determine which water bodies fall under the law.
The Environmental Protection Agency estimates that about a third of the nation’s waters are still unhealthy. About 117 million Americans — more than a third of the population — get some or all of their drinking water from sources now lacking protection. Given the deep antipathy to regulation on Capitol Hill — the House actually approved a measure in July to strip the E.P.A. of some of its authority to enforce the Clean Water Act — Congress has been unable or unwilling to clarify the law so that progress can continue in restoring and protecting these waters.
That has left it to the E.P.A. and the United States Army Corps of Engineers to draft new rules to make clear which waterways are protected. This guidance would keep safe the streams and wetlands that affect the quality of the water used for drinking, swimming, fishing, farming, manufacturing, tourism and other activities. The new rules would also bring clarity to the issue. Routine agricultural, ranching and forestry practices will not require permits under the Clean Water Act. Formal rulemaking will follow, though that will take time and will most likely be contentious.
The American economy has performed well over the past four decades: real per capita income has doubled since 1970 and pollution is down even with 50 percent more people. The choice between a healthy environment and a healthy economy is a false one. They stand, or fall, together. We’ve been blessed in the United States with abundant water resources. But we also face daunting challenges that are putting new demands on those resources — continuing growth; the need for water for food, energy production and manufacturing; the push for biofuel crops; the threat of new contaminants; climate change and just maintaining and restoring our natural systems.
If we narrow our vision of the Clean Water Act, if we buy into the misguided notion that reducing protection of our waters will somehow ignite the economy, we will shortchange our health, environment and economy.
William K. Reilly was the administrator of the Environmental Protection Agency from 1989 to 1993 and was the co-chairman of the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling.
