The Clean Water Act: Analysis

By Isabelle Bienen, NWNL Research Intern
Edited by Alison M. Jones, NWNL Director
All photos © Alison M. Jones

Isabelle Bienen is at Northwestern University studying Social and Environmental Policy and Legal Studies. As a NWNL summer intern, she wrote 5 blogs on the 1972 US Clean Water Act [CWA] and its role in NWNL’s 3 US watersheds. This is Isabelle’s fifth and final blog which analyzes the shortcomings, successes, and what is next for the CWA. Her earlier CWA blogs: CWA in Mississippi River Basin, CWA in Columbia & Raritan River Basins, CWA and Health Issues, and Evolution of the Clean Water Act. All rivers shown below are currently Waters of the US [WOTUS] covered by the CWA. At the end of this blog is an addendum added by NWNL staff about recent proposed changes to the Clean Water Act.

Implementation of the Clean Water Act in NWNL Case Study Watersheds

The CWA in the Mississippi River Basin

Jones_111027_LA_0832.jpgLake Martin in the Atchafalaya Basin, Mississippi River Basin, Louisiana

Despite the implementation of the Clean Water Act [CWA], the Mississippi River still experiences continued nutrient and sediment loading as well as the retention of dead zones. Effective management of nutrient and sediment runoff from agricultural sources requires targeted and specific approaches due to the increase in biofuel production in recent years. This basin runs through ten different states, over which the CWA has regulation with EPA oversight. This makes it difficult to implement targeted and specific approaches to nutrient, sediment, and dead zones problems since many of these states do not agree on how to approach these issues.1

Another inconsistency that inhibits adequate progress at this basin is the lack of data. There does not exist a single data-sharing mechanism for the river; nor does there exist water-quality standards for nutrient levels.1 Because of the limited amount of collected data, it is difficult to numerically determine the success of the CWA in the Mississippi River. However, the EPA and the ten states plan to renovate the existing Publicly Owned Treatment Works [POTWs] as well as add 1,688 POTWs in the near future. (No definitive end date has yet been released).2 This development, as well as the “contaminant reduction of sewage pollution from municipalities and the mitigation of point source inputs”2, highlight the major successes thus far of the Clean Water Act in the Mississippi River.  

The CWA in the Columbia River Basin

Jones_070630_WA_5418.jpgColumbia River Basin, Washington

The Columbia River Basin was identified in March 1990 as “impaired” due to  temperature by the states of Idaho, Oregon, Washington, the Tribes of Colville Reservation, and the Spokane Tribe.3 Water temperature has detrimental effects on marine populations in the Columbia River Basin. Temperature plays an important role on water quality in tribal and state regions. Setting temperature standards plays an important role in maintaining and restoring cold temperatures of northwest waters in the summer to protect and aid salmon and trout in their recovery.4 The State of Oregon Health Authority stated that “The states acknowledged that while the development of a TMDL [total maximum daily load: the maximum daily pollutants a body of water can receive] has been a cooperative effort, the interstate nature of the Columbia River Basin and the desirability of consistency of equity in regulating discharges in this basin necessitated that the TMDL be a federal action.”3 Therefore, on June 14th 1990, the EPA formally developed a final TMDL for dioxin discharges to the Columbia River Basin as a federal action.3

However, the water quality of the Columbia River Basin is still low. The Idaho Fish Consumption Advisory Program announced that the general public should not eat more than eight meals per month of bass due to risk of mercury poisoning.5 Both the Oregon and Washington State Health Authorities announced “Algal Bloom Advisories” along the Columbia River. Although it is stated that not all blooms are detected in this river and that not all are harmful, in certain seasons they may prevent swimming in this body of water. Clearly, the health of the Columbia River is not of very high standards despite the implementation of the CWA, and only minor successes have occurred​.

The CWA in the Raritan River Basin

Jones_080511_NJ_0758.jpgRockaway Stream, Upper Raritan River Basin, New Jersey

According to Raritan Headwaters, “Rivers and streams throughout the Raritan Basin contain unsafe levels of nutrients, fecal coliform, and other pollutants.”6 Portions of the Raritan watershed fail to meet federal CWA standards for levels of phosphorus, pH, chromium, mercury, copper, lead, temperature, dissolved oxygen, and sediments. The CWA requires  the New Jersey Department of Environmental Protection to implement a TMDL. The creation of a TMDL began in 2004, and over ten years later, it is still not finalized. The Raritan Headwaters states that “We continue to work with our partners and with the US EPA to press the NJDEP to complete, release and implement the long-delayed nutrient TMDL regulations for the Raritan Basin.”6

Overall Impacts of the CWA

Shortcomings

The CWA has had much success in further providing clean and safe drinking water to those in the United States; but the scope of the act is also limited in its success. Population growth, biological sources, limited jurisdiction, and climate change highlight this limited scope of the CWA.7 Nonpoint source pollution is not regulated under the CWA, only point source pollution. Yet, now, nonpoint source pollution is the largest source of water quality impairment.8 Also, chemical integrity of water is addressed in the CWA, but that leaves the biological and physical integrity of aquatic and land systems still in jeopardy. The creation of polluted waters and dead zones causes marine life loss is currently causing biological diversity to decrease. While the CWA manages waterways exposure to chemicals, it does not have the jurisdiction to manage nonpoint source pollution, as noted above.  This nonpoint source pollution is the main problem when discussing dead zone creation.

Jones_111023_LA_8292.jpgYoung kayaker at Lake Fausse Point State Park, Atchafalaya Basin, Louisiana

All hydraulic systems, rely heavily on wetlands, groundwater, headwater sources, and intermittent and ephemeral streams. However, the CWA only accounts for “navigable waters,” a vague term that has led to the recent two-year suspension of WOTUS and the CWR by the EPA. [See Blog 4 in this series for analysis of these changes.] Wetland waters that are not protected still impact what are obviously “navigable waters,” since stormwater runoff into wetlands brings contaminants to water systems. As well groundwater, not covered by the CWA or WOTUS, is infiltrated by unregulated fracking chemicals.8

The CWA is directed to monitor and protect water quality, not water quantity. However, water availability impacts energy production, agricultural use, development and more. All of these activities impact water quality. Activity on land near water systems has major impacts on water systems which is not consistently accounted for in the CWA.

Jones_150815_CA_5451.jpgRecreation on the Colorado River, Southern California

Increased water usage also impacts water quality through altering mixing zones for wastewater discharges that limit the amount of water available for other uses. Water scarcity is a driver of changes in water resource policy, but the CWA does not address the link between water quality and water quantity.8 Despite more than 30 years of regulation under the CWA, more than 50% of waters assessed at the state levels are rated as impaired.8 Our current legal and institutional systems are out-of-date given the recent increase in runoff from urban streets and agricultural lands. Ultimately, water development has stalled.4,5 According to an article published at Duke University, “After roads, water infrastructure is the second largest public investment- approximately $85 billion has been spent since the federal government first launched programs to help fund water infrastructure.”8 The American Society of Civil Engineers noted over a $500 billion shortfall by the EPA for infrastructure upkeep. Due to the increased effects of climate change, there will be large expenses necessary to reduce infiltration and leakage, reduce increased flooding, and improve water efficiency with already inadequate funding for these events as well as research.8 The scope of issues in which the CWA addresses is ultimately limited, and in order to truly meet water quality standards, these issues must be confronted.

Jones_140318_CA_1478.jpgGray Lodge Waterfowl Management Area, California

Successes of the Clean Water Act

Despite these many shortcomings, the CWA has improved the United States surface water quality. The CWA was a response to the uncontrolled dumping of contaminants, untreated sewage, and increase in runoff into local waterways. Before this act, many of the United States coastal waters, lakes, and rivers became unsafe for swimming or fishing. Since the enforcement of the act, the United States, for the most part, no longer intentionally discharges untreated sewage into rivers and streams. The CWA allows the EPA to work in conjunction with the states in order to establish use of surface waters and to regulate water quality for specific contaminants by improving standards for point source discharges.9 Thus, events such as the Cuyahoga River Burning of 1969 no longer occur and fisheries have re-established their presence in some areas.8

MO-JOH-107.jpgJohnson Shut-Ins State Park, Ozarks, Missouri

Generally, the CWA has successfully reduced the discharge of raw sewage as well as other pollutants into local waterways. The NRDC states, “Industry-specific discharge standards now prevent more than 700 billion pounds of toxic pollutants every year from being dumped into the nation’s water. And the rate of wetlands loss decreased substantially compared to the pre-Clean Water Act era.”10 Along with these improvements, the number of waterways that now meet quality goals has roughly doubled compared to numbers before the implementation of the CWA.10 Nationally, more people, have access to safe and clean drinking water from tap systems than ever before.11

Although the CWA has shortcomings, its successes are evident. It is clear that through analyzing the negative aspects of the Act, further implementation and stricter regulations are necessary to create ​positive impacts the environment needs. If the CWA, its consequent rulings and its amendments were dismantled, the negative impacts of polluted​ waters combined with climate degradation would worsen. Yet, expanding the Act would engender continued environmental health and success.

Jones_130518_WI_8311.jpgMississippi River, Wisconsin

ADDENDUM

On Tuesday, December 11, 2018, the US Administration released The EPA’s proposal to change the 2015 definition of federally-protected “Waters of the US” [WOTUS] to be federally protected, thus exempting restrictions on groundwater, stormwater, wastewater and land already converted for crops. According to Circle of Blue, “the proposal also prevents this proposal, if enacted, ends any “federal action on fertilizer use that might enter small waterways. It eliminates federal oversight of gravel and sand pits, often used in fracking, and old quarries that fill with water. It could also ease restrictions on coal mining activities that cut off mountaintops and fill valleys with waste, creating ponds within the debris.” This new proposal has a 60day period for comments once it is published in the Federal Registrar.

NWNL encourages our readers to read become involved in this critical change.  Please review our NWNL blog series on The Clean Water Act (all linked in the intro to this blog) to better understand this Act and definition of “Waters of the US.” Do keep an eye on our Facebook, or general news stories, for the exact dates for public comments.

Citations:

  1. The National Academies, accessed 7/3/18, published 2007, IKB, link.
  2. National Resource Council & Committee on the Mississippi River, Mississippi River Water Quality and The Clean Water Act, The National Academies Press, published 2008
  3. Oregon Health Authority, accessed 7/3/18, published 1986, IKB, link.
  4. Environmental Protection Agency, accessed 7/2/18, published 2017, IKB, link. 
  5. Idaho Department of Health and Welfare, accessed 7/3/18, published 2016, IKB, link
  6. Raritan Headwaters, accessed 7/3/18, published 2013, IKB, link. 
  7. New York Times: The Halliburton Loophole, accessed 6/27/18, published 2009, IKB, link
  8. Duke University: Nicholas Institute for Environmental Policy Solutions, accessed 6/28/18, published 2009, IKB, link. 
  9. The National Academies, accessed 7/3/18, published 2007, IKB, link
  10. National Resource Defence Council, accessed 6/28/18, published 2017, IKB, link
  11. Slate: Why Rivers No Longer Burn, accessed 6/28/18, published 2012, IKB, link

 

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