The Clean Water Act of 2023

 

By: Taya Fontenette, Policy and Research Coordinator

Building on the historical foundations laid by the Clean Water Act of 1972 (CWA), House Representatives Rick Larsen (D-WA), Grace Napolitano (D-CA), Don Beyer (D-VA), and Melania Stansbury (D-NM) introduced the Clean Water Act of 2023, H.R. 5983, on October 18th. The act aims to address critical issues in water resource management and protection. Currently, 123 House Democrats co-sponsor the bill, which seeks to strengthen the original CWA by accomplishing the following goals:

  1. Reaffirm Congressional Commitment: Restore and maintain the integrity of the nation's water resources.

  2. Define Protected Water Resources: Clearly define “protected water resources” under the Clean Water Act based on scientific evidence and decades of federal, state, and tribal collaboration.

  3. Resolve Confusion: Eliminate confusion caused by a narrow Supreme Court interpretation of 'navigable waters' and reestablish comprehensive authority under the Clean Water Act.

  4. Restore National Standards: Reinstate a national minimum standard of protection for water resources to the fullest extent of Congress's constitutional authority.

History of the Clean Water Act

The origins of federal legislation addressing water pollution in the United States can be traced back to the Federal Water Pollution Control Act of 1948. Initially crafted to address concerns related to water pollution stemming from industrial and sewage sources, this foundational act laid the groundwork for future environmental regulations. However, it was not until the 1970s, driven by escalating environmental disasters and a rise in public awareness, that the law underwent sweeping amendments to expand the scope of federal regulation concerning water quality. Despite facing a veto from President Richard Nixon, the legislation successfully navigated a congressional override, subsequently earning its widely recognized title—the Clean Water Act.

Since its effective date of October 18, 1972, the CWA has been the primary federal law governing water pollution, aiming to restore and maintain “the chemical, physical, and biological integrity of the nation's waters.” It set the stage for regulating point-source pollution, establishing water quality standards, and creating the National Pollutant Discharge Elimination System (NPDES) permitting program. The EPA and the U.S. Army Corps of Engineers take the lead in implementing the NPDES, ensuring that wastewater treatment facilities acquire discharge permits and comply with EPA guidelines for water treatment. The CWA provided a framework for cooperation between federal and state governments, emphasizing a collaborative effort to address water quality issues.

Significant changes were enacted through subsequent legislative acts. The Clean Water Act amendments of 1977 bolstered the original legislation by increasing funding and regulations for wastewater treatment and discharge, improving enforcement measures, and expanding the NPDES permitting program. The Water Quality Act of 1987 sought to address and prevent water pollution by emphasizing nonpoint-source pollution control and strengthening state involvement in water quality management. The Act also removed the original construction grant program and replaced it with a streamlined State Water Pollution Control Revolving Fund, addressing water quality through EPA-state partnerships. In 2022, the U.S. celebrated 50 years of the CWA, celebrating numerous accomplishments. Exploring the historical origins of the Clean Water Act reveals its vital evolution in tackling current challenges and the ongoing need for regulatory adjustments.

U.S. House Committee on Transportation & Infrastructure. Clean Water Act of 2023 Fact Sheet.

Sackett v. Environmental Protection Agency

EarthJustice. Wetlands Most in Danger After the U.S. Supreme Court’s Sackett v. EPA Ruling.

The recent Supreme Court ruling in Sackett v. Environmental Protection Agency significantly shapes discussions surrounding the Clean Water Act, especially regarding its application to wetlands and the resulting implications for regulatory enforcement. The origins of this legal discourse can be traced back to Michael and Chantall Sackett, homeowners near Priest Lake, Idaho. Their attempts to build a home faced restrictions when the EPA asserted a violation of the Clean Water Act, claiming the presence of wetlands on their property as “navigable waters.” This dispute led to an EPA mandate requiring the Sackett family to restore the property to its natural state.

Initiating a lawsuit in 2008, the Sacketts argued that the filled wetland was not a protected "water of the United States" as it had dry land between it and other bodies of water, asserting the area was not subject to EPA regulation. Over 14 years, the case progressed through the federal court system, ultimately reaching the Supreme Court.

In the decision on May 25, 2023, the Court ruled 5-4 in favor of the Sacketts that the Clean Water Act applies exclusively to wetlands with a continuous surface connection to "waters" in the United States. In the majority opinion, Justice Samuel Alito maintained that the Clean Water Act applies solely to streams, oceans, rivers, and lakes, along with wetlands featuring a "continuous surface connection to those bodies." Conversely, Justice Brett Kavanaugh, siding with the court's three liberal members, countered Alito's interpretation. Kavanaugh highlighted that, since the 1977 amendment of the CWA to include adjacent wetlands, eight consecutive presidential administrations have consistently interpreted the law to encompass wetlands, a perspective the current court has now rejected.

Overview and Challenges

The Clean Water Act of 2023 represents a significant effort to build upon the historical foundations laid by the Clean Water Act of 1972, addressing evolving environmental challenges and emphasizing the need for clear regulatory frameworks. Rick Larsen asserts that "The Clean Water Act of 2023 reinstates historic bipartisan protections for an estimated 50% of wetlands and 70% of streams lost due to the misguided Sackett decision." Despite its commendable goals, the bill's highly partisan nature makes passage unlikely. The current strategy involves House Democrats focusing on garnering support for a resolution to the Sackett v. EPA case, with plans for refining the law in the future. 

In its efforts to address the repercussions of the Sackett v. EPA decision, the 2023 bill demonstrates noteworthy progress; however, it is not without its shortcomings. There is a considerable risk associated with the inclusion of a provision giving the EPA administrator the authority to periodically examine and potentially exclude protected waters based on their discretion and scientific data, provided that doing so won't have “cumulative adverse effects.” This exclusion provision has the potential to undermine the legislation's effectiveness if abused by anti-environmental courts and administrations. As Julian Gonzalez, Earthjustice Senior Legislative Counsel, aptly notes, "Indeed, time and again, we have seen mining companies, the fossil fuel industry, reckless developers, and other big polluters exploit loopholes to expand destructive development and poison our lakes, wetlands, and rivers."

While the Clean Water Act of 2023 aims to extend safeguards to all water bodies originally covered by its predecessor, the disappointment lies in the provision allowing for the later exclusion of waters from these protective measures. The delicate balance between environmental protection and potential exclusions underscores the challenges of crafting legislation that effectively addresses the complex issues surrounding water quality and conservation for another 50 years.

Resources

 
Policy BriefWater CollaborativeFederal Policy, Water Quality