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40 Years Later, Clean Water Act Still Working

J. Mijin Cha

This week marks the fortieth anniversary of the Clean Water Act (CWA). In 1972, Congress overhauled the Federal Water Pollution Act and provided the basic structure for regulating the discharge of pollutants from point sources. The CWA gave the EPA the authority to set effluent limits on an industry-wide basis and on a water-quality basis. It also required anyone who wanted to discharge pollutants to first obtain a permit, or else the discharge would be considered illegal.

Before the CWA amendments, only a third of the nation’s waters were considered swimmable and/or fishable. Now, that percentage of water meeting this standard is over 60 percent. A vast improvement, for sure, but far from where we need to be. Part of the problem is that the CWA doesn’t regulate “nonpoint” sources of pollution, such as runoff from urban areas or agriculture operations, as stringently as it does “point” pollution sources, like wastewater treatment facilities. It will take statutory revisions (read: acts of Congress) to properly regulate nonpoint source pollution. This seems unlikely given that Congress seems more intent on defunding the EPA than increasing its enforcement powers.

The other difficulty facing the CWA is a Supreme Court ruling in 2009 that allowed cost-benefit analysis to be used in deciding levels of protection. As a result, the court ruled that EPA was not required to impose the most environmentally protective requirements if the cost to industry were too high. We’ve discussed why cost-benefit analysis is fundamentally flawed and how they have been used to gut regulation, even though the benefits of regulations far outweigh any costs.

The value of clean water is a perfect example of why cost-benefit analysis is flawed. I’m sure that there is a formula that decides how much clean water is worth, but is it something that can even be valued? How much would you be willing to pay for the assurance that the lake by your house in which you swim won’t make you sick?

Sure, we can say that compliance costs for industry will increase if they can’t dump their waste into waterways, but don’t we think that’s a cost they should bear? Why does industry get the benefits of increased profit by lowering operational costs while society bears the burden of their environmental destruction?

And, at the core of this battle, how can we say at some point clean water costs too much? As Senator Edmund Muskie said when the original Clean Water Act was being debated:

Can we afford clean water? Can we afford rivers and lakes and streams and oceans which continue to make life possible on this planet? Can we afford life itself? The answers are the same. Those questions were never asked as we destroyed the waters of our Nation, and they deserve no answers as we finally move to restore and renew them. The questions answer themselves.

Senator Muskie’s words ring even truer today. The continued attack on regulations and the EPA need to stop, not just for our health, but for the health of future generations.