Prove your humanity

October 18 marked the 50th anniversary of the Clean Water Act. The landmark legislation passed by Congress in 1972 established regulations that brought polluted waters, like Lake Erie, back to life, says Jim Murphy, director of legal advocacy for the National Wildlife Federation. But its future authority is uncertain. 

The Allegheny Front’s Kara Holsopple spoke with Murphy about the Clean Water Act faces.

LISTEN to the conversation

Kara Holsopple: A case now before the Supreme Court challenges the scope of the Act: Sackett v. EPA. At issue is which bodies of water receive federal protection. The plaintiffs are a couple who bought a residential property in Idaho that’s essentially a wetland and want to fill it in with sand and gravel. What are the plaintiffs arguing?

Jim Murphy: So they’re effectively arguing that this wetland is not protected by the Clean Water Act. Their argument is that the Clean Water Act is really supposed to be very limited in scope to major bodies of water and wetland areas that immediately abut those. That is in plain contradiction with what Congress intended when it passed the Clean Water Act. Congress understood that water flows downhill and that small streams and wetlands on the upper reaches of watersheds play a hugely important role in protecting the health of downstream waters. 

Holsopple: From your perspective, what’s at stake if the plaintiffs do win?

Murphy: I think what’s at stake is whether the Clean Water Act will continue to be an effective law that protects our health and safety and our drinking water supplies and wildlife habitat. Wetlands are really both the kidneys and the sponges of watersheds and almost operate like a system. In fact, they do operate like a system. 

Wetlands store water during storm events, so you don’t get flooding. Flooding creates pollution by scouring dirt and also by carrying pollutants from the surface into waterways. So they hold that water during times of precipitation and snowmelt, and then they also slowly release that water. As they release that water, they also filter it and clean it. 

So wetlands really keep the water on the landscape, and they allow it to be released slowly into streams and rivers. When you fill them in and pave them over, you lose all those really important functions in terms of keeping water clean. Small streams do a lot of similar things. They also both provide an immense amount of habitat. One of the reasons the Clean Water Act was passed was also to protect the biological integrity of our waters.

Holsopple: This is a conservative court. It may likely go toward the plaintiffs. So what would be the plan B to protect streams and wetlands?

Murphy: I think there are three possible avenues. One, depending on what the ruling is, hopefully, the court leaves as much room for the current agencies to regulate as possible. 

The real fix, I think, is with Congress. If the court rules that Congress did not intend for these waters to be protected – obviously, we think that’s the wrong ruling, but unfortunately, if it would be the ruling of the court – Congress could go back and make very clear that these waters are waters that it intends to protect. 

The third avenue is to continue to push states to step in and fill the void in the meantime. The obvious downfall of that is some states don’t have the money and resources to do that. A lot of states don’t have the political will to do that. Then you also have the problem that without a federal floor of protections you can build on, you get a situation where because waterways are connected, one state that might really want to step up and protect its waters is still going to be receiving the pollution from its neighbor which may not be as concerned.

Holsopple: Besides this Supreme Court case, are there other challenges to the Clean Water Act’s authority or scope? Happening right now.

Murphy: Section 401 of the Clean Water Act deals with the ability of states and tribes to certify whether federally permitted or licensed projects are complying with state water quality standards and keeping state standards clean. 

That is also the subject of some litigation right now. But the primary threat in the courts right now is this question about which waters are protected and which waters fall under the definition of “waters of the United States.”

Holsopple: What’s still left to be done on clean water issues that either the Act doesn’t address, or it doesn’t go far enough? 

Murphy: The hole that’s always been there with the Act is cleaning up what’s called non-point source pollution. The Act as a really good job of cleaning up the type of pollution that comes out of a pipe.

But when it’s pollution that just runs off the landscape – and there’s a lot of pollution that runs off the landscape from rain events and snowmelt – the Act does not do a great job of that. A lot of the pollutants that come off of that are our nutrients, like phosphorus and nitrogen. 

So a lot of the pollution problems we’re seeing right now involve things like algal blooms where there are too many nutrients coming into the water, and it fuels the growth of harmful algae. And this is a problem that’s going to get more severe with climate change because we’re seeing bigger and more intense storms, which means that there’s going to be more runoff occurring because there’s just more precipitation and more intense flooding

Holsopple: You’re talking about runoff from agricultural activity or from cities? 

Murphy: Some of that is regulated as stormwater when it’s kind of collected. You know, for instance, a suburban development that might have drainage systems that collect the water and put them in one place. Those are regulated, but they could be regulated a little better. And some of it is not regulated at all. 

I think the other real hole with the Clean Water Act right now is enforcement and implementation around frontline communities that have historically seen underinvestments in clean water infrastructure, that have seen a lot more harmful and polluting factories and industries being placed in their neighborhoods. 

The efforts around investment and clean up and enforcement in those communities have historically lagged behind other communities. I think there are changes to the Clean Water Act that could be made to prioritize those issues. 

But I also think part of that is ensuring that EPA and state agencies that are in charge of enforcement and implementation put in different priorities to ensure that they are really enforcing the Clean Water Act in a way that benefits those communities.

Jim Murphy is the director of legal advocacy for the National Wildlife Federation.