Growing up in the Washington, DC, area in the late 1960s, Eric Schaeffer remembers that the Potomac River was a place to avoid.
“Man, the river stank, really bad,” said Schaeffer, now executive director of the nonprofit Environmental Integrity Project. “It was nothing to drive by the Tidal Basin and see a mat of dead fish.”
The Potomac — the “nation’s river” — was so fouled by raw sewage and industrial waste that by the early 1960s, it had become a national disgrace. Along with the burning Cuyahoga River in Ohio, pollution in the Potomac helped spur public clamor nationwide to clean up pollution-fouling rivers, streams, lakes, and estuaries.
Congress responded on Oct. 18, 1972, bypassing the Clean Water Act, with Republicans joining Democrats to override President Richard M. Nixon’s veto of the sweeping environmental law.
In the weeks following today’s anniversary of the act, federal and state regulators, politicians, and environmental advocates have been hailing its impact.
“It truly has led to transformational change,” said Radhika Fox, the U.S. Environmental Protection Agency’s assistant administrator for water, at a celebratory event on the shore of the Chesapeake Bay near Annapolis in September.
The law also helped to inspire the federal-state effort to restore the Chesapeake Bay, a cause that Congress has since formally written into the law.
“It’s the model globally of what to do in a multi-jurisdictional watershed,” said U.S. Sen. Ben Cardin, D-MD.
The Clean Water Act helped funnel more than $1 trillion nationwide over the last 50 years into upgrading wastewater treatment plants. By many accounts, great progress has been made in reducing direct discharges of untreated sewage and chemical wastes, and many glasses of water appear visibly cleaner.
But improvements in water quality have slowed in recent decades, according to a report by the Environmental Integrity Project. The law’s ambitious goals of restoring fishable, swimmable waters by 1983 and eliminating pollution by 1985 remain far from reach. Nationwide, about half of the assessed river, stream, and creek miles are still impaired by pollution, as are 55% of lake acres and a quarter of bay and estuary miles, according to data reported by states to the EPA.
The story’s the same with the Chesapeake Bay. Progress has also been made in reducing nutrient and sediment pollution, but efforts have fallen far short of the cleanup goals. Only 30% of the Bay’s tidal waters met water quality standards in the most recent 2018–2020 assessment.
The Bay’s condition is inextricably tied to water quality in its 64,000-square-mile watershed, which includes parts of six states and the entire District of Columbia. According to state assessments, pollution impairs 30% of river and stream miles in Pennsylvania and 73% in Virginia. In Maryland, according to state figures, 80% of 5,315 river and stream miles examined by the state contain so much fecal bacteria that they are unsafe for water-contact recreation. In Delaware, 97% of rivers and streams are impaired for one use or another – the largest percentage in the nation.
Part of the cleanup shortfall stems from gaps in the Clean Water Act itself, advocates say. The law regulates pollution piped into waterways from sewage treatment plants and factories but doesn’t control dispersed runoff from farm fields, lawns, paved surfaces, and other “nonpoint” sources. According to the state-federal Chesapeake Bay Program, agriculture is the largest source of nutrient and sediment pollution getting into the Bay.
The EPA has developed a partial workaround to that limitation by requiring runoff prevention measures from large-scale livestock and poultry farming operations, which are treated as factories piping waste into waterways.
In passing the Clean Water Act, Congress also authorized citizens and nongovernmental organizations to court to punish polluters or prod regulators for cracking down. That provision has been used repeatedly over the years, as the Chesapeake Bay Foundation did in a landmark lawsuit against the Virginia-based pork producer Gwaltney of Smithfield in the 1980s.
More recently, environmental groups joined in suing Valley Proteins, a poultry rendering plant on Maryland’s Eastern Shore. Blue Water Baltimore sued the city of Baltimore for chronic discharge violations at the state’s two largest sewage treatment plants.
Citizen suits also played a role in getting the EPA to develop a Baywide total maximum daily load or “pollution diet,” which set nutrient and sediment pollution reduction targets for the Bay states and District of Columbia. It remains the largest TMDL cleanup plan the EPA has produced under the law, surviving legal challenges from agriculture and home-building interests.
But ambiguities and gaps remain, fueling continuing legal and political controversies over what the law can and cannot require. It remains unclear, for instance, whether TMDLs can be enforced. Jon Mueller, the Bay Foundation’s vice president for litigation, noted that the law doesn’t specifically say those cleanup plans must be carried out by a certain date.
Even so, the foundation and four Bay jurisdictions — Maryland, Virginia, Delaware and the District — sued the EPA in 2020, alleging it wasn’t doing enough to enforce the Bay TMDL. They contended that the agency was shirking its duty under the law by not pushing Pennsylvania and New York to do more to reduce pollution reaching the Bay from their rivers and streams. The case is pending.
The U.S. Supreme Court also heard arguments earlier this month in a long-running controversy over which wetlands are considered “waters of the United States” and therefore protected by the Clean Water Act from disturbance. And Congress is mulling environmental permitting changes that could limit the ability of states and tribes to block projects that might degrade their water quality.
Notwithstanding those disputes, advocates say the Clean Water Act still gives federal and state regulators plenty of tools for cleaning up pollution if they have the resources and political will to use them. Several nonprofit groups and Maryland elected leaders held a press conference today to demand that the state Department of the Environment reverse a decline in its enforcement by hiring more staff, increasing inspections of chronic violators, and eliminating a backlog of expired discharge permits.
“It seems crazy to have to pass legislation to tell MDE to do its job, but that’s where we are,” said Del. Sara Love, D-Montgomery County, who sponsored a bill this year requiring stepped-up MDE inspections.
“Clean water doesn’t happen on its own,” said Potomac Riverkeeper Dean Naujoks, whose nonprofit group has taken repeated legal action to halt discharge violations not dealt with by regulators. “When we don’t have an agency to enforce … we’re only going to be so successful in cleaning up the Bay.”
Given the partisan split in Congress, Schaeffer of the Environmental Integrity Project said it’s unrealistic to look for any real strengthening of the Clean Water Act on its 50th anniversary. But the law already has powerful tools to help clean up waterways, he said. Federal and state regulators just need the courage and imagination to use them.
In the meantime, he added, “it’s good to remember how it was and how much worse it could be … If you fell into the Potomac [in the 1960s], your first concern wasn’t drowning. It was that the Potomac had touched you.”
This article was originally published on BayJournal.com and is republished with permission.