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Clean Water Act at 40: Is it failing to meet new pollution challenges?

Congress passed the far-reaching Clean Water Act 40 years ago. The measure scored dramatic environmental successes, including with Lake Erie. But now Erie, and the law, are besieged.

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• Pollution standards for different industries – standards that determine what the industries can put into the water and what they can’t – are out of date. Plus, new pollutants are emerging, including pharmaceuticals and cosmetics.

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“People are inventing new chemicals faster than we can figure out what to do about them,” says William Hines, a professor of law at the University of Iowa in Iowa City.

• Aging infrastructure – including treatment plants and sewage systems that in some cities date to the 19th century – is a growing threat to water quality. Even sewage treatment plants built with federal money in the early years of the Clean Water Act are in need of upgrades.

“If we don’t reinvest in that infrastructure, we’ll start falling backwards again, in part due to population growth,” says Robert Adler, a professor of law at the University of Utah in Salt Lake City and the author of a book on the Clean Water Act.

• The act left largely untouched the leading cause of pollution today, known as “nonpoint” pollution. The largest source of this is runoff from agriculture. Each year, for example, fertilizer from Midwestern cornfields washes down the Mississippi River and creates a “dead zone” in the Gulf of Mexico. Farm runoff is an ongoing problem in many smaller bodies of water, including Chesapeake Bay, Lake Erie, and many other lakes and rivers around the country. Under the Clean Water Act, states have been identifying thousands of bodies of water polluted by excess nutrients from agriculture. But the act gives the federal government little power to regulate agricultural pollution. “We keep talking about plans, but there’s very little execution,” says Mr. Hines.

The Clean Water Act was one of a trio of sweeping environmental laws enacted in the early 1970s, including the Clean Air Act (1970) and the National Environmental Policy Act (1970). It came at a time of growing interest in the environment and of readiness to extend the powers of the federal government. 

Environmental regulation in the United States dates to the 19th century. But the Clean Water Act was different in that it greatly expanded federal powers to curb pollution, a job previously left to the states. By allowing private citizens to bring lawsuits over pollution, the Clean Water Act also opened up new opportunities for citizen action.

For example, Heal the Bay, an environmental group in Los Angeles, got started when a group of citizens invoked the Clean Water Act in a fight to clean up Santa Monica Bay. “We’ve been working the Clean Water Act ever since,” says Kirsten James, the organization’s water quality director.

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