The Clean Water Act (CWA) marks its 50th anniversary next year, an important milestone for an ambitious statute. Wild Virginia invites its members, as well as members of the public, to celebrate this occasion by getting their feet wet in protecting Virginia’s water resources. From October 2021 to October 2022, Wild Virginia will undertake a Year of Clean Water Action. We invite you to join us in this work by learning about the Clean Water Act through Wild Virginia’s year-long CWA50 blog series; training to become a Clean Water Advocate with Wild Virginia; participating in environmental action; and, of course, enjoying our state’s waters.  

Our CWA50 blog series begins today with a brief history of the Clean Water Act. 

The Clean Water Act (CWA) is the primary federal law that regulates water pollution in the United States. The purpose of the Clean Water Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251 (2020). The CWA seeks to achieve these objectives by regulating direct and indirect pollution discharges into “waters of the United States.” Id at § 1342. Importantly, the CWA operates on a cooperative federalism model, meaning that state governments work together with the federal government to regulate water pollution in order to fulfill the CWA’s purpose.

The Clean Water Act became law on October 18, 1972, having received overwhelming bipartisan support from Congress and overcoming a veto by President Richard Nixon. Notably, the CWA sought to reorganize and expand earlier, existing federal legislation to better protect surface waters throughout the United States.   

Federal Water Pollution Legislation Before the CWA

    Prior to the CWA, Congress had enacted a few laws to protect the country’s waters. The Rivers and Harbors Act of 1899, for example, regulated activities in navigable waters. 33 U.S.C. §§ 1343, 1344. This included activities that would obstruct these waters, such as placing dredged or fill material in waterways, altering channels, and constructing piers, dams, bulkheads, jetties, and other structures. Id. Later, in 1948, Congress enacted the Federal Water Pollution Control Act, the first major United States law to address water pollution. This was an important step in establishing the basic legal authority for federal regulation of water quality. The Act established a basic structure for regulating water pollution throughout the United States. It also provided funds to state and local governments to address water pollution problems. However, the Act viewed water pollution “as primarily a state and local problem, hence there were no federally required goals, objectives, limits, or even guidelines.” Copeland at 2. Moreover, the Act limited federal involvement and enforcement to matters involving interstate waters “and only with the consent of the state in which the pollution originated.” Copeland at 2. 

Over the next two and a half decades, Congress amended the Federal Water Pollution Control Act several times to strengthen its enforcement provisions and improve its effectiveness. Such amendments expanded the federal government’s role and extended federal jurisdiction to “include navigable intrastate, as well as interstate, waters.” Copeland at 2. Additionally, such amendments introduced water quality standards, “requiring states to set standards for interstate waters.” Copeland at 2. Yet, “the result of this sporadic legislation was a hodgepodge of law” that was difficult to implement. The Act was far from effective in protecting the Nation’s waters: 

By the late 1960s, there was a widespread perception that existing enforcement procedures were too time-consuming and that the water quality standards approach was flawed because of difficulties in linking a particular discharger to violations of stream quality standards. Additionally, there was mounting frustration over the slow pace of pollution cleanup efforts and a suspicion that control technologies were being developed but not applied to the problems. These perceptions and frustrations, along with increased public interest in environmental protection, set the stage for the 1972 amendments.

Copeland at 2. 

Environmental Pollution and Increased Public Awareness

    Water pollution continued to plague United States’ rivers, lakes, streams, and other bodies of water throughout the 1950s and 1960s. On June 22, 1969, the Cuyahoga River, one of the most polluted rivers in the United States, caught fire when sparks from a passing train set ablaze oil slicks on the river. It was not the first time the Cuyahoga River (or any industrial river in the United States) had caught fire, nor was it the largest or the most damaging fire. River fires had been common occurrences in industrial cities in the United States until the mid-20th century when state and local governments began to take small and slow actions to address industrial water pollution. Nonetheless, the 1969 fire captured the attention of the national media, and thereby that of the public. Time magazine published photos of the Cuyahoga River on fire (actually from a prior fire) and described the river as being so polluted with sewage and industrial waste that it “oozes rather than flows.” Although Cleveland, the city through which the Cuyahoga River flows, had recently voted to approve funds for river cleanup efforts, the 1969 fire was a reminder of how bad things had become, and “reinforced the need for continued progress.” This was true not only in Cleveland, but throughout the United States. In Washington, D.C., the Potomac River left the city “stinking from the 240 million gallons of wastes that [were] flushed into it daily” while “Omaha’s meatpackers fill[ed] the Missouri River with animal grease balls as big as oranges.” As such, “the flaming Cuyahoga became a figurehead for America’s mounting environmental issues,” mobilizing public concern across the country and helping spark  “wide-ranging reforms, including the passage of the Clean Water Act.” 

Enacting the CWA

    The confluence of the country’s dire environmental situation, increased public awareness of environmental concerns and mounting pressure on politicians to address such concerns, as well as bipartisan support in Congress for environmental regulation, created a political environment where the CWA was possible. In the early 1970s, Congress sought to substantially amend the 1948 Federal Water Pollution Control Act. These amendments became known as the Clean Water Act. Specifically, these amendments:

• Established the basic structure for regulating pollutant discharges into the waters of the United States;
• Authorized EPA to implement pollution control programs such as setting wastewater standards for industry;
• Maintained existing requirements for states to set water quality standards for pollutants in surface waters;
• Made it unlawful for any person to discharge any pollutant from a point source into navigable waters, without a permit;
• Funded the construction of sewage treatment plants under the construction grants program; and
• Recognized the need for planning to address the critical problems posed by nonpoint source pollution.

Importantly, the 1972 CWA amendments sought to improve water quality so that the country’s waters would be “fishable” and “swimmable” by 1983, and totally eliminate pollutant discharges into waters of the United States by 1985.

Senator Edmund Muskie (D-ME), the bill’s principal sponsor, stewarded the bill through the legislative process, building bipartisan rapport and persevering against continuous opposition from the White House. Notably, during debate on the bill, Senator Muskie proclaimed:

This country was once famous for its rivers. In songs and poems and stories, Americans gloried in the now-quiet, now-roaring reaches of the river waters. A vigorous people, following their rivers to the oceans and beyond, built along the riverbanks a strong and productive economy.

But today, the rivers of this country serve as little more than sewers to the seas. Wastes from cities and towns, from farms and forests, from mining and manufacturing, foul the streams, poison the estuaries, threaten the life of the ocean depths. The danger to health, the environmental damage, the economic loss can be anywhere.

The bill passed both houses of Congress overwhelmingly on October 4, 1972. However, President Richard Nixon delayed signing it as long as he could due to concerns about cost. Nixon then vetoed the bill on October 17, 1972. He did so despite his own EPA Administrator, William D. Ruckelhaus, having urged him to sign the Act:

It seems reasonable to me to spend less than one percent of the Federal budget and .2 percent of the Gross National Product over the next several years to assure for future generations the very survival of the Gross National Product.

The next day, Congress voted to override President Nixon’s veto. Senator Muskie, criticizing Nixon’s rationale for vetoing the bill, commented prior to the critical Senate vote:

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? 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.

Therefore, the Clean Water Act of 1972 become law on October 18, 1972.

Conclusion

In the nearly 50 years since, the CWA has remained an ambitious statute with lofty goals for protecting and enhancing water quality. While the CWA has not achieved its aims of making all waters “fishable and swimmable,” nor has it entirely eliminated pollution discharges, the regulatory structure it created has been robust and effective. In 1972, only one-third of the Nation’s waters satisfied water quality standards for fishing, swimming, and other recreational activities. Today, more than half are “fishable and swimmable.” The CWA has made progress on cleaning up our Nation’s waters, but there is still work to do.

Wild Virginia remains committed to doing this hard, but necessary work of protecting water quality to help achieve the CWA’s objective of restoring the chemical, physical, and biological integrity of our Nation’s waters.

Sources:

Clean Water Act, 33 U.S.C. §§ 1251-1387 (2020).

92 Cong. Rec. S2770 (daily ed. Sep. 28, 1972) (statement of Sen. Muskie).

Commemoration of the 30^th Anniversary of the Clean Water Act: Hearing Before the Sen. Comm. on Env’t and Pub. Works, 107^th Cong. (2002) (statement of Hon. Mitchell, former Senator from Maine referring to statement of Sen. Muskie).

Claudia Copeland, Cong. Research Serv., Clean Water Act: A Summary of the Law (2016). 

Elle Simon, The Bipartisan Beginnings of the Clean Water Act, Waterkeeper Alliance Blog (Jan. 30, 2019), https://waterkeeper.org/news/bipartisan-beginnings-of-clean-water-act/.

Envt’l Prot. Agency, Watershed Academy Web: Introduction to the Clean Water Act (2021), available at: https://cfpub.epa.gov/watertrain/moduleFrame.cfm?parent_object_id=2569.

E.W. Kenworthy, President Vetoes Clean Water Bill, New York Times (Oct. 18, 1972), available at https://www.nytimes.com/1972/10/18/archives/president-vetoes-clean-water-bill-nixon-acts-despite-strong.html.

Jennifer Latson, The Burning River That Sparked a Revolution, Time (Jun. 22, 2015, 10:30 AM), https://time.com/3921976/cuyahoga-fire/.

Jonathon H. Adler, Volkh Conspiracy: The Fable of the Burning River, 45 Years Later, Washington Post (Jun. 22, 2014), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/22/the-fable-of-the-burning-river-45-years-later/.

N. William Hines, History of the 1972 Clean Water Act: The Story Behind How the 1972 Act Became the Capstone on a Decade of Extraordinary Environmental Reform (2012), available at: https://ssrn.com/abstract=2045069.