Posted on June 8, 2022 by Steve Miano
Recently, I was asked to moderate a panel to celebrate the 50th anniversary of the Clean Water Act. It gave me the opportunity to think about the power of environmental legislation, specifically in the context of maintaining clean water. I’ve spent a good part of my career on issues related to regulation under the CWA. From NPDES permitting to TMDLs, to water supply issues, to groundwater remediation, one thing is clear, the CWA has, in my humble view, been one of the most powerful and meaningful pieces of federal environmental legislation.
The CWA was passed, as we all surely recall, on heels of the Cuyahoga River bursting into flames in an industrial area of Ohio, as seen in the above photo. The river was so polluted with chemical waste that, as the story goes, sparks from a welder’s torch lit the river on fire. While there had been several statutes aimed at curbing water pollution in the many years leading up to the CWA’s passage, none were particularly effective and many were aimed at preventing obstructions to navigation, rather than preventing chemical pollution. The shocking fire on the Cuyahoga finally shamed Congress into passing a law, with teeth, directed to curb water pollution in 1972.
Over the past 50 years, the CWA has been singularly responsible for the cleanup of many of the nation’s waterways and the protection of wetlands and associated habitat. Nobody can honestly debate the power and effectiveness of this law. When I was a young environmental lawyer, I used to think that jurisdiction under the CWA was limitless. I used to say that, if you could float a paper cup on it, that water was jurisdictional. Then came the SCOTUS SWANCC decision (https://www.law.cornell.edu/supct/html/99-1178.ZO.html) undoing the migratory bird rule, which for the first time, began to hem in the breadth of jurisdiction under the law. Some time thereafter, SCOTUS completely confused things with the Rapanos decision (https://www.law.cornell.edu/supct/cert/04-1034) – or some would say “non-decision”.
Now, in its 50th year, the statute is facing a true mid-life crisis! Since Rapanos, there have been myriad regulations, Executive Orders, regulatory guidance, scientific papers, and a host of court decisions, all aimed at defining the statute’s scope. Some would say that these efforts have both narrowed (Trump administration’s Navigable Waters Protection Rule) and expanded (Maui decision – https://www.law.cornell.edu/supremecourt/text/18-260) the scope of the CWA’s jurisdiction. We now wait, with some anxiety, SCOTUS’s latest foray into defining the scope of the CWA’s jurisdiction in the Sackett case. Most observers believe that Sackett will again narrow the scope of jurisdiction – by how much we don’t know.
At the same time, the discovery of so called emerging chemicals like PFAS in water has led to an unprecedented array of regulatory activity. EPA is now considering the regulation of the discharge of PFAS under the CWA’s NPDES program at staggeringly low levels – parts per trillion! (https://www.epa.gov/system/files/documents/2022-04/npdes_pfas-memo.pdf) Exactly how the process of regulating chemicals such as PFAS under the CWA will play out remains to be seen. Regardless, these efforts point to the ability to exert significant regulatory power under the CWA – despite its current mid-life crisis.