Our gem: From flammable to exploitable: the United States Clean Water Act

The United States’ Clean Water Act of 1972 (CWA) resulted in dramatic improvements in water quality. It’s hard to believe how bad the water pollution was in previous decades. Cleveland’s petroleum-laden Cuyahoga River caught fire in 1969, as it had done 13 times since 1868. Three other rivers caught fire that year. Fishing and swimming were also not safe in the Coeur d’Alene and Spokane rivers.

The CWA passed with an overwhelming two-party majority in the United States House and Senate. President Nixon vetoed the law, but Congress easily overrode it.

The CWA was unique in integrating pollution standards, funding solutions, and enforcing to restore America’s waterways. The law specifies that no one has the right to pollute our waters and that any discharge of pollutants requires a permit.

The CWA rewrote the Federal Water Pollution Control Act of 1948, which had research funding but limited regulatory power. It is also linked to the Rivers and Harbors Act of 1899. At the time, garbage and encroachments caused danger to ships trying to dock. The Rivers and Harbors Act required permission from the U.S. Army Engineer Battalion for encroachments and spills.

CWA precedents go back even further. In 533 AD, Roman law was compiled and set in stone at the Institutes of Justinian. The river, the bed and the banks, the air and the sea were common to all. This foundation of English and European law guaranteed people the opportunity to fish for food and to walk past private property, with the confidence of the public. Today, the Army Corps of Engineers (ACOE) and the Environmental Protection Agency (EPA) administer the CWA under the doctrine of public trust.

The national pollution disposal system is at the heart of the Clean Water Act. EPA permits for this system provide standards for polluting facilities and waterways that receive discharges. The CWA also authorizes the ACOE to regulate the disposal of dredged or fill material in United States waters.

The jurisdiction of the CWA is generally described as US navigable waters and territorial seas. But protected waters were not precisely defined in law. ACOE and EPA developed the legal definition, in a process that continues today through regulation, legislation and courts.

The CWA’s license denials were challenged in court on the basis of the 5th Amendment’s “catch” clause of the Constitution and the Commerce Clause. Between 1973 and 2008, the EPA and ACOE adopted different definitions of “United States waters”. In 2008, the EPA and ACOE issued joint jurisdictional guidelines based on the limits imposed in three Supreme Court cases. In 2015, agencies again attempted to clarify jurisdiction, but this guidance continued to be challenged in various district courts.

The result is that the 2015 guidelines are in effect in 22 states and the District of Columbia (including Washington). The remaining 28 states (including Idaho) are subject to the 2008 guidelines. The debate is far from over, with bills introduced in current Congress to reduce the scope of the CWA’s jurisdiction and maintain it. according to the 2015 rules. States and federally recognized Indian tribes may promulgate water quality standards with the EPA for the CWA’s authority over the waters they manage. The Coeur d’Alene Tribe and the State of Idaho both have the authority of the CWA with regulatory and licensing jurisdictions.

We have made great strides in cleaning up our water. Many urban waterways are now suitable for fishing, canoeing and even swimming. But we have a long way to go. 50% of America’s waterways are deteriorated and there are many emerging threats such as nanoplastics and pharmaceutical pollutants. The CWA continues to play an important role in ongoing efforts to protect our waterways.

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Written by Jim Ekins, Ph.D., Area Water Educator, University of Idaho Extension for the Our Gem Coeur d’Alene Lake Collaborative; a team of committed and passionate professionals who work to preserve the health of lakes and protect water quality by raising community awareness of local water resources through education, awareness and stewardship. Our gem includes local experts from the University of Idaho Community Water Resources Center, Coeur d’Alene Tribe Lake Management Department, Idaho Environmental Quality Department, from the Kootenai Environmental Alliance, Coeur d’Alene Chamber of Commerce, Kootenai County, and CDA 2030. For relevant quotes from CWA, please access this article at uidaho.edu/ourgem.

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