"DON'T BLAME THE FLINT RIVER".

• Author: Villa, Clifford J.
• Position: The Clean Water Act at 50: Requiem or Resurrection?

1. Introduction 342 II. The "Forgotten" River: Anacostia 345 III. The Lower Duwamish "Waterway" 352 IV. "Don't Blame the Flint River" 359 V. Conclusion 370 I. INTRODUCTION

   Growing up in Albuquerque, New Mexico, I thought I knew rivers because I paddled a homemade raft down a stretch of the Rio Grande through town. (1) I had never seen a river that could sustain barge traffic or riverfront communities, but I had a vague sense that they did exist. I had read Mark Twain, at least. (2)

   In college, I gradually became aware that some rivers were polluted, raising questions of what to do about it. In an undergraduate course in environmental economics at the University of New Mexico (UNM), a professor explained that if I wanted to stop a factory from polluting a river, I could pay them to stop. Barely able to afford car insurance then, this didn't seem like a practical option for me. And then the professor added that there was this thing called the Clean Water Act, (3) which actually made it illegal to pollute waters without a permit, but it was rarely enforced. In that moment, on a cold dark winter day from the second floor of Mitchell Hall on the UNM campus, I swear I saw a beam of light break through the clouds and reveal my destiny: you shall enforce the Clean Water Act.

   After enrolling at Lewis & Clark Law School in 1990, I began to see how industrial activities that threatened rivers could also threaten people. The moment of crystallization happened one fall afternoon, on a field trip led by Professor Craig Johnston. Boarding a Willamette Riverwatch boat, we motored from the Willamette River up the Columbia Slough through the industrial backwaters of Portland. It was a warm day, and local kids were splashing in the water while older folks sat on folding chairs keeping a watchful eye on fishing rods. As we cruised up the Slough, our boat guide pointed out the "peanut butter" and hygiene products floating on the surface. Farther still, we began to see the old pipes poking out from overgrown riverbanks, discharging their loads of what we learned was raw sewage. We learned a new term: Combined Sewer Overflows (CSOs). (4) We realized the kids splashing downstream were playing directly in it.

   At the time, there seemed to be only one modest question: Should the City of Portland post warning signs to discourage swimming in the Columbia Slough? Then one further question: If the City should post signs, should it post them in more than one language? While at that time we didn't have the demographic data we have now, the character of the community surrounding the Slough was clear: they were poor and what we would come to know of as "People of Color." (5)

   Around the same time on the East Coast, Bill Reilly, the Administrator of the Environmental Protection Agency (EPA), formed a workgroup to investigate growing concerns for the disproportionate impacts of environmental pollution on poor and minority people. (6) In 1992, the EPA workgroup released a report addressing concerns for "environmental equity." (7) The EPA report largely agreed with community advocates about concerns for environmental inequities. Among other specific findings, the report concluded that "[r]acial minority and lowincome populations experience higher than average exposures to selected air pollutants, hazardous waste facilities, contaminated fish[,] and agricultural pesticides in the workplace." (8) In 1994, the year after I graduated from Lewis & Clark, President Bill Clinton signed Executive Order 12898, putting "environmental justice" on the national agenda. (9)

   With hindsight, it is easy to look back thirty years and see the Columbia Slough as presenting concerns for environmental justice. While subject to many conceptions over time, (10) the most common definition of "environmental justice"--as maintained by the EPA--requires "the fair treatment and meaningful involvement of all people... with respect to the development, implementation, and enforcement of environmental law, regulations, and policies." (11) There was nothing "fair" about the City of Portland discharging raw sewage into the Columbia Slough, thereby endangering the health of residents in immediate proximity. (12) But the major response to these concerns was not necessarily pursuing notions of environmental justice. It was simply enforcing a familiar federal statute, the Clean Water Act, which in general prohibits the unpermitted discharge of pollutants into navigable waters, like the Columbia Slough. (13) Since appearing in modern form in 1972, now fifty years ago, the Clean Water Act has proven a powerful force for helping clean up contaminated waterways across the country. (14) In the case of the Columbia Slough, Professor Johnston, and co-counsel, representing the local organization Northwest Environmental Advocates (NWEA), filed a citizen suit against the City of Portland in April 1991 for alleged violations of the Clean Water Act. (15) After years of litigation (16) and an influential decision by the U.S. Supreme Court, (17) the Ninth Circuit Court of Appeals ruled in favor of NWEA, stating that CSO discharges causing exceedances of water quality standards could violate the City's permit under the Clean Water Act. (18) Subsequent settlements, (19) followed by massive construction, transformed Portland's antiquated sewer system and resulted in dramatic improvements in water quality. (20)

   Portland was not alone in its problems with CSO discharges. In 2001, EPA estimated there were 772 "CSO communities" across the United States. (21) Over the past two decades, remarkable transformations have occurred in other major cities, in addition to Portland, (22) to improve water quality across the country. (23) But bringing urban waters into compliance with the Clean Water Act often cannot, by itself, secure environmental justice for local communities. In this Article, I explore how the Clean Water Act has been used to pursue environmental justice in three communities, resulting in significant gains in each case, but also requiring the implementation and enforcement of additional laws and practices. Part II examines how the Clean Water Act has been used to address contamination in the Anacostia River watershed in Washington, D.C. Part III considers Seattle's Duwamish River, the subject of continuing cleanup efforts under the federal Superfund statute. (24) Part IV investigates the roots of the Flint Water Crisis, which people have blamed, perhaps erroneously, on the Flint River. Lastly, Part V concludes with some thoughts on what it may take, beyond Clean Water Act regulation, to help restore urban watersheds and the communities they should serve.

2. THE "FORGOTTEN" RIVER: ANACOSTIA

   In the early 1990s, Washington, D.C. carried the ignominious title of "murder capital" of the United States. (25) For a young lawyer at EPA Headquarters, the City of Washington was a new world for me. One day, folks in my office learned that one of our administrative assistants had lost his brother to a shooting. On the day of the funeral, we climbed into a taxi and handed the driver the address. After reading the address, he turned all the way around to advise us, "You don't want to go there." But with hesitation, the driver agreed to take us--across a bridge and into a community far removed from the white marble monuments of our nation's capital.

   After crossing the bridge, I remember rolling through empty streets, past boarded-up storefronts. I remember a sermon about "God's will" and a eulogy from a young Black man who had made it out of the neighborhood and returned to rail against the violence that had taken another Black life. I didn't know, and would never know, about all the circumstances that had led to this loss of life. But I began to see how different lives could be on the other side of a river.

   My first glimpse of the Anacostia River in the early 1990s belied the rich cultural and natural history of the Anacostia area. In 1608, just a year after the founding of the Jamestown colony, Captain John Smith sailed up the Potomac River and explored the Anacostia River. (26) Along the Anacostia, Captain Smith encountered communities of Indigenous peoples who became known as "Anacostans," for whom the river was named. (27) At first contact, Smith observed the Anacostan people enjoying "ample supplies of corn, venison, and fish." (28) Despite this natural abundance, the Anacostan people would disappear within decades, due to smallpox and other contributing factors. (29)

   In 1790, when settlers founded the City of Washington, the map defining the eastern corner of the city would capture the lands to the east of the Anacostia River within a neat right angle. (30) Within the northern corner, Rock Creek would wind its way south towards Georgetown. Both Rock Creek from the north and the Anacostia River from the east would eventually empty into the Potomac River, which would come to define the western boundary of "the District." (31)

   Every morning, as a young EPA attorney, I crossed the Potomac River on the Yellow Line from Alexandria, Virginia. Every evening, on my way home, the Metro operator would welcome us back to "the great Southern State of Virginia." On weekends, I learned to sail on the Potomac. And in the spring, I watched a pair of bald eagles raise their young in a nest near the Alexandria waterfront. Anacostia would remain a foreign land. (32)

   It wasn't just me. For generations, the Anacostia was D.C.'s "forgotten river." (33) Across the river, communities would grow and people would live their lives, unseen by the political hustle on Capitol Hill and the tourist bustle across the National Mall. (34) After the United States officially abolished slavery, Anacostia flourished initially as a growing community of Black households, with advancements in property ownership, public education, transportation, and commerce. (35) Racial segregation, however, would confine Black residents to Anacostia...