THE CLEAN WATER ACT AT 50: REQUIEM OR RESURRECTION?

• Author: Walker, Skye M.
• Position: SYMPOSIUM

Fifty years ago, Congress passed the Federal Water Pollution Control Act of 1948 (later known as the Clean Water Act) in response to a disturbing public health issue: egregious pollution of U.S. waterbodies. The Cuyahoga River fire of 1969, among other events, generated national concern over water quality and set in motion a new regulatory era. Indeed, the Clean Water Act (CWA) has been a powerful driver of point source pollution reduction; many waterways once ridden with oilsoaked debris, fecal coliform, and waterborne contaminants--such as the Cuyahoga--are now fishable and swimmable by CWA standards.

Yet, at its fiftieth anniversary, the landmark law has fallen short. Until recently, the Environmental Protection Agency (EPA) has failed to meaningfully consider environmental justice in CWA administration, and the CWA has been relatively ineffective at addressing non-point source pollution. Likewise, EPA has done little to regulate modern threats to water quality like "contaminants of emerging concern" and plastics. Scholars grappled with these successes and failures at Environmental Law's Spring 2022 Symposium--The Clean Water Act at 50: Requiem or Resurrection?

In one Article, Mr. Cassidy and Professor Johnston deconstruct the "small handles" problem and its implications for public interest review under CWA [section] 404. They argue that by artificially segregating NEPA review and [section] 404 public interest review, the Army Corps of Engineers circumvent preparation of an Environmental Impact Statement and foreclose public participation. This approach, the Authors claim, is based off an erroneous interpretation of the CWA, NEPA, and the Corps' own NEPA regulations. The Authors suggest that a broader, more harmonious scope of review would better fulfill the statutes' goals.

Professor Flatt discusses the ecological value of wetlands--and their eventual disappearance--assuming efforts to limit federal CWA jurisdiction succeed. In the hot debate over "Waters of the United States" (WOTUS), proponents of a narrow definition suggest that states will step up, assuming regulatory control over wetlands. Professor Flatt rebuts this argument, pointing to federalism theory, empirical evidence, and state practice--whereby states lack the willingness or capacity to regulate wetlands, or are legally prohibited from doing so.

Similarly, Professor Parenteau analyzes the Supreme Court's recent grant of certiorari to consider the Ninth Circuit's decision...