Academic

Andreen and Jones on the Clean Water Act

By Lawrence Solum

William L. Andreen and Shana Campbell Jones (University of Alabama - School of Law and Center For Progressive Reform) have posted The Clean Water Act: A Blueprint for Reform on SSRN. Here is the abstract:

The 1972 passage of the Clean Water Act (CWA) marked an important milestone in the nation's environmental history. Motivated by public outrage at oil spills covering hundreds of square miles, massive fish kills due to pollution, and rivers so laden with pollutants that they actually caught fire, Congress adopted the measure, overriding the veto of President Richard Nixon.

For its time, the bill was genuinely revolutionary, and in the years since, it has done much to clean up the nation's waterways. The volume of pollutants discharged from factories and sewage treatment facilities has decreased significantly. Though we continue to lose wetlands, the rate of yearly wetlands loss has decreased. And the most important measure: many, but not all, of the nation's waterways are cleaner today than they were when the CWA was passed.

While the law has accomplished much, and while it set the nation on a course toward significantly greater environmental responsibility, much more remains to be done. Almost half of the nation's waters are still "impaired," which is to say that they are too polluted to support the uses authorities have identified for them - to serve as sources of drinking water, recreational areas, or to support fish and wildlife. Wetlands continue to be lost to pollution and development. Nonpoint source pollution - runoff from farms, construction sites, and roads, for example - is the leading cause of water pollution today, but it is inadequately addressed by the CWA. Industrial facilities, meanwhile, are discharging toxics into sewer systems that then pass into waterways. In addition, the nation's wastewater infrastructure is aging and showing its wear. All the while, enforcement has declined, particularly in the last few years. Since 2001, two Supreme Court decisions - Rapanos and SWANCC - have thrust the CWA into the spotlight, paring back the CWA's protection of wetlands and other waters.

While these all-too-familiar problems mount, climate change threatens to stress existing water resources and the ecosystems that depend upon them still further. Its effects will be far-reaching indeed. Competition for water among agricultural, municipal, industrial and ecological uses will increase. Rising sea levels will threaten already vulnerable salt marshes and other coastal habitats. Heavy precipitation caused by extreme weather events will increase sewer overflows, degrade water quality, and increase the likelihood of water-borne disease.

It is long past time for action to update the Clean Water Act. This Blueprint for Reform presents a number of specific and meaningful reforms for the CWA that address existing problems and prepare for the new problems climate change will create.

Full post as published by Legal Theory Blog on August 22, 2008 (boomark / email).