1. Running head: THE CLEAN WATER ACT 1
The Clean Water Act: Past, Present, & Future
Tristan Sola
American Public University

2. THE CLEAN WATER ACT 2
The Clean Water Act: Past, Present, & Future
Introduction
Water quality standards are designed to ensure the continued protection of the
Nation's waterways (EPA, 2011a). These standards assist in the identification of water
quality issues, such as pollution from agricultural runoff or sewage water that has been
improperly treated, and the overall health of habitats and ecosystems (2011a). The central
law ensuring the establishment of water quality standards and the overall protection of
people, fish, and wildlife from contaminated water can be found in the Clean Water Act -- a
comprehensive statute that provides for the National Pollution Discharge Elimination
System, and the basis for the regulation of point source discharge of pollution into the
waterways of the United States (2011a).
Background
The River Cuyahoga
In the summer of 1969, the Cuyahoga River started to burn. More specifically, an oil
slick and various debris in the water beneath a railroad trestle ignited, causing the surface
of the river to begin burning (Alder, 2003). This event, coming at a time when the nation's
awareness of environmental issues was growing, sparked nationwide and international
attention (2003). Because of this incident, it quickly became apparent that the
environmental protections featured in state and local common law were not enough to
ensure the health of the environment (2003). Drew Caputa, a member of the Natural
Resources Defense Council, was quoted as saying "when the rivers are on fire, you know
things are bad" (Alder, 2003, p. 91). The burning of the Cuyahoga River -- despite past
occurrences of polluted waterways igniting -- sparked a national movement for the adoption
of environmental legislation unheard of to that point in time, resulting in the Federal Water
Pollution Control Act of 1972 (Alder, 2003).

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The Federal Water Pollution Control Act
The Federal Water Pollution Control Act [FWPCA] of 1948 was the nation's first piece
of comprehensive legislation created to address the problem of water pollution, and was
designed to foster the development of a cooperative program between the state and federal
governments (EPA, 2011c). The overall purpose of the FWPCA was the establishment of
effluent standards -- the acceptable amounts of chemicals and other substances that can be
released into a waterway (Goldsteen, 2003). The effluent standards established under the
FWPC were dependent upon specific industries, and were based around an industry's ability
to come into compliance while continuing to operate in an economically sound way (2003).
In 1972 the FWPC was further amended to require States to establish water quality
standards and goals for interstate waterways, but the effectiveness of this method was
questionable due to complexities involved in enforcing such standards (EPA, 2011c).
Following the incident at the Cuyahoga River, and with nation's population becoming
increasingly aware of the importance of protecting the environment, the FWPCA was
amended yet again in 1972 to include sweeping reforms to ensure such events as those that
unfolded in Cleveland, Ohio would never happen again (EPA, 2011c). The amendments
adopted in this new iteration of the FWPCA included the creation of the National Pollutant
Discharge Elimination System [NPDES] which remains an important aspect of today's Clean
Water Act; the establishment of technology-based effluent limitations for permits issued
under the NPDES; the extension of the water quality standards program to intrastate
waters; and the establishment of requirements designed to ensure that any permit issued
under the NPDES be consistent with state-defined water quality standards (2011c).
The Clean Water Act
The 1977 amendments to the Federal Water Pollution Control Act saw the law
become known as the Clean Water Act (EPA, 2011d). Besides establishing the basic
provisions for regulating the discharge of pollutants into the nation's waterways, the 1977

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amendments gave regulatory authority over pollution control programs to the
Environmental Protection Agency [EPA]; made discharging of pollutants into navigable
waterways unlawful for any person within the proper permits; created a grants program to
assist in the construction of sewage treatment plants (this particular provision was phased
out of the law in revisions made in 1987, replacing it with what is commonly referred to as
the Clean Water State Revolving Fund, a new strategy to address water quality standards
by fostering a working partnership between the EPA and state governments); and officially
recognized the need for detailed planning in addressing problems related to nonpoint source
pollution (EPA, 2011d).
Restrictions under the Clean Water Act. Goldsteen (2003) identifies the following
provisions under which water pollution is regulated by the Environmental Protection Agency
and its state-level counterparts: 1) waste materials, chemicals, and biological agents are
not allowed to be discharged into soil, groundwater, or surface water; 2) Companies and
individuals are required to obtain a permit before potential contaminants are released, and
must therefore be approved to make such a release; 3) regulatory authority may be given
to state agencies if approved by the EPA; 4) preventing, reporting, and responding to
pollutant spills follows a clearly defined process; 5) a permit must be obtained prior to
replacing or discharging waste created by the process of dredging; and 6) there exists
established methods of enforcement for any violation of the abovementioned provisions.
Definitions within the Clean Water Act. To properly understand the regulations
established in the Clean Water Act, it is important to become familiar with the working
definitions used in the legislation. Goldsteen (2003) identifies the following definitions:
Surface waters. Rivers, streams, creeks, rivulets, and lakes.
Ground waters. Found in rock formations beneath the surface of the earth.
Wetlands. Areas of land that are flooded or saturated with water including
swamps, bogs, and marshes.

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Navigable water. All waters within the United States including surface waters
(lakes, rivers, etc.), tidal waters, and wetlands.
Additions. The introduction or discharge of a pollutant into a body of water.
Point sources. The discharging of a pollutant from a single place such as a
manufacturing facility, a vehicle, or a drainage ditch.
Effluent standards. Acceptable levels of substances or chemicals that may be
released into the environment.
Pollutant. Harmful substances that may include waste (municipal, industrial, or
agricultural); sewage; chemical, biological, or radiological materials; garbage;
munitions; and equipment that has been discarded.
NPDES: A Central Provision. The National Pollutant Discharge Elimination
System [NPDES] is designed to control water pollution by regulating point sources that
discharge pollutants into the Nation’s waterways (EPA, 2011a). All industrial and municipal
facilities that discharge effluents into surface waters are required to obtain a permit; when
applying for such a permit, NPDES requires the applicant to submit detailed information on
the facility, location, point source, and composition of the effluent being discharged
(Goldsteen, 2003). Authority may be granted to States authorizing them to issue NPDES
permits; when a state does not have the proper authorization, the EPA requires that state to
confirm that the discharge for which the permit is being issued complies with standards set
forth by the state (2003).
Present Status
To understand the current status of the Clean Water Act [CWA], it is important to
first understand the overall purpose of the legislation. Rumley (2010) states the original
goal of the Clean Water Act, as found in the Federal Water Pollution Control Act, as the
"restoration and maintenance of chemical, physical and biological integrity of Nation's
waters… and it is the national goal that the discharge of pollutants into navigable waters be
eliminated by 1985" (p. 6).

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The legislative history of the Clean Water Act states that the House of
Representatives wished the definition of 'navigable waters' to remain as broad as possible
so as to free it from the determinations of specific agencies (Rumley, 2010). This is an
important point given the challenges the Clean Water Act has faced in recent decades. Many
of these cases sought to determine just how broad the meaning of 'navigable waters' was to
be, and in doing so were attempting to establish in concrete terms which waterways in the
United States were regulated under the provisions of the CWA (2010). There are three
specific cases that require examination in relation to this issue: United States v. Riverside
Bayview Homes, Inc.; Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers; and Rapanos v. United States (Rumley, 2010).
United States v. Riverside Bayview Homes, Inc.
The central issue in this case was whether or not the Clean Water Act applied
wetlands located adjacent to so-called navigable waters -- wetlands that Riverside Bayview
Homes, Inc. wanted to fill without first seeking permission from the Army Corps of
Engineers, the agency claiming regulatory authority over the disputed area (United States
v. Riverside Bayview Homes, Inc., 1985). The court ultimately found in favor of the Army
Corps of Engineers, ruling that wetlands adjacent to navigable waters areas, even if they
are not regularly flooded by those navigable waters, none-the-less fall under the protections
granted in the provisions of the CWA (Rumley, 2010).
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers
In the case Solid Waste Agency of Northern Cook County [SWANCC] v. U.S. Army
Corps of Engineers (2001), the Army Corps ultimately claimed jurisdiction over an area of
land that had once been the site of a sand and gravel mining operation. The area had been
abandoned for several decades, long enough for former excavation pits to be transformed
into permanent and seasonal ponds of various sizes (SWANCC v. U.S. Army Corps of
Engineers, 2001).

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Following SWANCC's attempts to purchase the site for use in disposing of baled
nonhazardous solid waste, the Army Corps of Engineers, having observed more than 121
species of migratory birds making use of the excavation-pits-turned-ponds, decided to
extend its regulatory authority over the "discharge of dredged or fill material into the
navigable waters... which are or would be used as habitat by birds protected by Migratory
Bird Treaties" (SWANCC v. U.S. Army Corps of Engineers, 2001, p. 2-3). Due to this the
Corps determined that while the excavation pits did not fit into the traditional definition of
wetlands, their use by migratory birds known to spend the majority of their lives in aquatic
environments therefore qualified the pits as "waters of the United States" -- the broad
definition given to navigable waters (SWANCC v. U.S. Army Corps of Engineers, 2001).
The United States Supreme Court eventually ruled against the Army Corps of
Engineers, finding that 'Migratory Bird Rule' was not supported under the provisions of the
Clean Water Act as intended by Congress (SWANCC v. U.S. Army Corps of Engineers,
2001).
Rapanos v. United States
Rapanos v. United States was meant to clarify the finding in SWANNC v. U.S. Army
Corps of Engineers by further defining what is meant by 'navigable waters' (Rapanos v.
United States, 2006). In Rapanos, the federal government brought suit against the
petitioners after four Michigan wetlands were filled in without a permit (2006). As these
wetlands were found to be adjacent to man-made drainage ditches that emptied out into
traditionally defined navigable waters, the U.S. Army Corps of Engineers found the Rapanos
petitioners to be in violation of the CWA (2006). While the lower courts found in favor of the
government, the Supreme Court reversed the decision by stating that the phrase 'waters of
the United States' (i.e. navigable waters) does not refer to channels providing drainage or
rainfall (2006).

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Aftermath of SWANCC and Rapanos
The two cases referenced above are central to the present status of the Clean Water
Act due to the uncertainties in defining 'navigable waters,' a term that was intentionally
defined in the broadest possible way by the House of Representatives (Rumley, 2010). The
aftermath of SWANCC and Rapanos have significant impacts on the EPA and Army Corps of
Engineers' regulatory authority, as these cases split the courts on what jurisdiction the two
agencies have over specific types of waterways (2010).
The EPA and Army Corps of Engineers were also forced to reevaluate how they
define the term navigable waters, and did so be released a guidance memorandum
clarifying the issue. The memorandum stated that the two agencies would assert jurisdiction
over traditionally defined navigable waters; any wetlands that are found adjacent to those
waters; permanent tributaries of navigable waters; and wetlands that share a common
border with navigable waters (Clean Water Act Jurisdiction, 2008). Additionally, the
memorandum clarified that the agencies would not claim jurisdiction over man-made
ditches or drainage systems designed that do not possess a continuous, permanent flow of
water (2008).
In short, the abovementioned cases have determined that the term 'navigable
waters' is more expansive that the traditional definition, does not include waterways that
are have no connection with navigable waters, and that waters must possess at least a
semi-permanent connection to navigable waters to fall under the protections outlined in the
CWA (Rumley, 2010).
Future
The Clean Water Restoration Act
The future of the Clean Water Act is uncertain due to the findings of the Supreme
Court in United States v. Riverside Bayview Homes, Inc.; Solid Waste Agency of Northern
Cook County v. U.S. Army Corps of Engineers; and Rapanos v. United States (Rumley,

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2010). The findings in these cases upended the past understanding of the CWA -- that all
bodies of water fall under the protection of the Act's pollution prevention programs (Lehner,
2007). As Lehner (2007) point outs, it is not possible to protect the nation's lakes, rivers
and other bodies of water if the waters that flow into them are not protected as well. These
waters, though not necessarily sharing any common borders or continuous connections to
traditionally defined navigable waters, often do have links to groundwater, wetlands, and
other water systems that are vital to the health of numerous habitats and ecosystems
(Lehner, 2007).
These uncertainties led to creation of the bill known as the Clean Water Restoration
Act [CWRA]. This Act, introduced in the 107th through 111th Congresses, with the intention
of reaffirming the original intent of Congress when first enacting the Clean Water Act;
clearly defining what is meant by the 'waters of the United States'; and ensuring all U.S.
waterways are fully protected by the powers of the United States Congress (Rumley, 2010).
Unfortunately, the Clean Water Restoration Act has stalled in Congress despite 24
co-sponsors and the support of President Obama's administration (Rumley, 2010). Though
the CWRA was approved by the U.S. Senate Committee on Environment and Public Works,
the bill has since stalled and not been brought up for full debate and consideration (2010).
This is primarily due to split in support and opposition for the bill along party lines (2010).
Other Challenges
The Clean Water Act faces additional challenges in its future. Lehner (2007) identifies
the following issues: lack of infrastructure funding by the federal government; ineffective
sewage treatment; lack of understanding in regards to beach-water contamination and
treatment of its root causes; slow progress in updating technology standards for industrial
dischargers; lenient permitting for industrial pollution; lack of enforcement resources;
pressure from increased development without adequate means to address storm-water
pollution and overflow of sewage systems; pollution from animal factories; the inability to
control the release of aquatic invasive species; and impacts from climate change.

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Conclusion
The importance of clean water for human health and the environment cannot be
overly stressed. Water is the basis of life on Earth, and necessary for the continued survival
of countless species (COTF, 2004). Within the boundaries of the United States, the Clean
Water Act -- a comprehensive statute that establishes water quality standards and the
means to enforce them -- ensures the protection of people, fish, and other wildlife from
contaminated water (EPA, 2011a). Created in an era of growing environmental awareness,
the future effectiveness of the CWA has been called into question in recent years due to a
high level of uncertainty regarding what constitutes a navigable waterway (Rumley, 2010).
If the Clean Water Act is to become the effective tool the United States Congress intended it
to be, then the legislative authorities must step forward to clarify or redefine the purpose
and scope of the statute. Without such action, the waterways within the United States will
remain at risk of contamination, thereby threatening the overall health of the environment.

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Literature Cited
Clean Water Act Jurisdiction. (2008). Retrieved from http://140.194.146.135/CECW
/Documents/cecwo/reg/cwa_guide/cwa_juris_2dec08.pdf
EPA. (2011a). The national pollution discharge elimination system. Retrieved from
http://cfpub.epa.gov/npdes/cwa.cfm?program_id=45
EPA. (2011b). Why are water quality standards important?. Retrieved from
http://water.epa.gov/scitech/swguidance/standards/imp.cfm
EPA. (2011c). Water quality standards history: Statutory history. Retrieved from
http://water.epa.gov/scitech/swguidance/standards/history.cfm
EPA. (2011d). Laws and regulations: History of the clean water act. Retrieved from
http://www.epa.gov/lawsregs/laws/cwahistory.html
Goldsteen, J.B. (2005). The ABCs of environmental regulation. Lanham, MD: Government
Institutes.
COTF. (2004). Hydrosphere: Importance of clean freshwater. Retrieved from
http://www.cotf.edu/ete/modules/waterq3/WQhydro2.html
Rapanos v. United States, 547 U.S. 715 (2006). Retrieved from Cornell University Law
School's website http://www.law.cornell.edu/supct/html/04-1034.ZS.html
Rumley, R. (2010). The clean water act: Current status and potential changes. Retrieved
from http://www.nationalaglawcenter.org/readingrooms/cleanwater/
United States v. Riverside Bayview Homes, Inc ., 474 U.S. 121 (1985). Retrieved from EPA's
Laws and Regulations website http://water.epa.gov/lawsregs/lawsguidance/cwa
/wetlands/upload/RiversideBayviewHomes_opinion.pdf