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50 years after the Clean Water Act was passed, there is still work to be done

The Plain Dealer  Cleveland logo The Plain Dealer Cleveland 4/7/2022 Peter Krouse, cleveland.com
Aerial of the Cuyahoga River approaching Scranton Peninsula © John Pana/cleveland.com/TNS Aerial of the Cuyahoga River approaching Scranton Peninsula

CLEVELAND, Ohio – It’s been 50 years since the passage of the Clean Water Act with the goal of cleaning up the country’s navigable waterways, and while there is cause to celebrate what the legislation accomplished, toxins are still fouling rivers and lakes.

“The objective of the Act is the restoration and maintenance of the chemical, physical and biological integrity of the country’s water,” states the U.S. Environmental Protection Agency on its website. “One of the goals is to achieve water quality that is both ‘fishable’ and ‘swimmable’ by the mid-1980s. While the date has passed, the goal remains and efforts to attain it continue.”

Progress has been made, said Jonathan Adler, law professor at Case Western Reserve University and director of the school’s Coleman P. Burke Center for Environmental Law, but more work needs to be done, especially when it comes to preventing “nonpoint source pollution,” or that which is collective in nature and can’t be traced to a single, responsible culprit.

Adler and a host of experts on the milestone legislation will take part in a forum this Friday entitled “The Clean Water Act at 50.” It’s billed as “a day-long interdisciplinary symposium that will explore the successes, failures and remaining challenges of the Clean Water Act.”

The gathering, which can also be accessed through a live webcast, will be in George Gund Hall on the Case campus. It’s free to the public, although those attending in person are encouraged to register. Those seeking credits for continuing legal education will be charged a fee, $100 for alumni and $200 for those who are not.

Positive change

One of the two most important achievements of the Clean Water Act, which was vetoed by then-President Richard Nixon only to be overriden by Congress with strong bipartisan support, was the creation of the National Pollution Discharge Elimination System, Adler said.

The NPDES requires permits to discharge into bodies of water such as rivers and lakes. It has enabled regulators to control toxic discharges from single-point sources, such as a pipe or drainage ditch that empties into a stream.

“We’ve made tremendous progress in that regard,” Adler said.

The other major element of the act has been to provide funding for wastewater treatment, Adler said, although many cities, including Cleveland, still have problems with stormwater overwhelming sewage systems and allowing untreated flows to enter the environment.

“It can be expensive,” Adler said of the fixes to the system, “and everybody wants somebody else to pay for it.”

William Andreen, who teaches environmental law at the University of Alabama, said there is $300 billion gap in funding to modernize sewer systems in the country.

“And we’re going to have to deal with that,” he said.

More to do

The major water quality concern now, and one that the Clean Water Act does not adequately address, is controlling pollution from nonpoint sources, such as the chemical-laden runoff from farms or from paved areas such as streets and parking lots, both Adler and Andreen said.

“That’s been the bigger challenge for water quality,” Adler said, and one of the reasons the Clean Water Act has not fully achieved its intended goals.

A specific example of nonpoint pollution in Ohio is the growth of harmful algal blooms in Lake Erie each summer, largely attributed to excess phosphorus that washes off farms along the Maumee River in northwest Ohio.

Another example, Adler said, is the motor oil, chemicals and debris that get washed off streets and parking lots and into sewers.

One of the problems with the Clean Water Act, which has not been amended since 1987, is that it’s outdated and not suitable for addressing a more contemporary problem such as nonpoint pollution, Adler said.

It’s a difficult task, he said, especially in these polarized political times, to identify all the responsible parties contributing to nonpoint pollution and to begin talking about regulating land use and imposing requirements on farmers, other landowners or on cities.

An important legal challenge

Adler said a case before the U.S. Supreme Court that involves whether an Idaho couple needs a discharge permit to build a home near a lake could influence efforts to cleanup waterways.

The underlying legal question in Sackett v. Environmental Protection Agency is whether their land is subject to the Clean Water Act and how far the U.S. Army Corps of Engineers and the EPA can extend its regulatory powers, he said.

As Andreen explains it, the case should help determine whether the Clean Water Act allows the EPA to regulate discharge into more than just navigable waterways, but also into the headwaters and intermittent streams that feed those waterways.

There is good reason to believe the court with its conservative majority will look skeptically “on broad assertions of regulatory authority,” Adler said.

The upshot could mean states becoming more aggressive when it comes to regulating land use and the development of sensitive natural areas, he said, or Congress coming up with new ways to have the federal government advance water quality, such as through the use of subsidies to encourage better land use.

What will it take to spur change?

Despite the issues that still need to be addressed, the Clean Water Act did pave the way for improvements to waterways across the county, including the Cuyahoga River and Lake Erie.

Both are much cleaner than they were in 1972, Adler said. “That doesn’t mean they are as clean as we want them to be.”

The Cuyahoga River fire of 1969 has been credited with helping to galvanize the modern environmental movement that led to the Clean Water Act, although such river fires were a declining problem, Adler said, and the notorius blaze on the Cuyahoga was attributed to debris that collected beneath two railroad trestles.

“Politically it mattered,” Adler said, as the river fire, which was highlighted in a famous Time magazine article that included a photo of a 1952 fire on the Cuyahoga, along with the infamous Santa Barbara oil spill became “symbols of what the country wanted to do something about.”

But today, the focus is shifting to the thornier question of how to attack water pollution that is not so easily identifiable. The country is now starting to understand the need to address the “cumulative insults” that have contributed to nonpoint sources of pollution, Adler said.

But to be successful in combating nonpoint source pollution, Andreen said, will take political guts, funding and community buy-in, and an understanding “that we’re all in this together and we need to clean up our own act.”

©2022 Advance Local Media LLC. Visit cleveland.com. Distributed by Tribune Content Agency, LLC.

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