There are a few things that every human needs to live: sleep, shelter, food—and clean water. Therefore, in the 1960s, when it was found that pollution in many of America’s waterways was causing mass deaths of fish and other aquatic life, rampant disease, and even a river fire, it was time to do something about it. The Clean Water Act,^[1]To amend the Federal Water Pollution Control Act., Public Law 92-500, 92 Congress. 86 Stat. 816 (1972). This act can be found in HeinOnline’s U.S. Statutes at Large database. officially called the Federal Water Pollution Control Act Amendments of 1972, was enacted into law on this day, October 18, in 1972, after Congress overruled a veto from President Nixon who feared that it was too expensive. Since the passage of the Act, pollution in the nation’s waterways has decreased, but we have not achieved the goals it set.

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Portrait of a River on Fire

Before the passage of the Clean Water Act, there were very few regulations on water pollution, and many of the nation’s waterways were engorged with all sorts of chemicals, waste, and sludge from booming manufacturing plants. The Federal Water Pollution Control Act^[2]To amend the Federal Water Pollution Control Act., Public Law 92-500, 92 Congress. 86 Stat. 816 (1972). This act can be found in HeinOnline’s U.S. Statutes at Large database. was passed in 1948 to create water quality programs and provide financing for state and local governments, but its regulations were only limited to interstate waterways. Other acts, such as the Refuse Act of 1899^[3]Making appropriations for the construction, repair, and preservation of certain public works of rivers and harbors, and for other purposes., Chapter 425, 55 Congress, Public Law 55-425. 30 Stat. 1121 (1899). This act can be found in … Continue reading and the Oil Pollution Act of 1924,^[4]To protect navigation from obstruction and injury by preventing the discharge of oil into the coastal navigable waters of the United States., Public Law 68-238 / Chapter 316, 68 Congress. 43 Stat. 604 (1924). This act can be found in … Continue reading sought to decrease water pollution. The Water Quality Act of 1965 required states to create water quality standards, but these only applied to interstate waters. None of these acts were very effective. As evidence,^[5]Carrie A. Scrufari, Substances Generally Recognized as Safe – Until They’re Not: Challenges in Protecting the Food Supply in a Processed World, 36 STAN. ENVTL. L. J. 219 (2017). This article can be found in … Continue reading in 1968, pollution in the Chesapeake Bay cost fishermen millions of dollars in revenue, while a year later 26 million fish were killed in a Florida lake due to pollution. A study in 1969 found that bacterial levels in the Hudson River were 170 times the legal limit. And, on the morning of June 22, 1969, an oil slick on the Cuyahoga River south of Cleveland caught on fire.^[6]Jordan Becker, Beyond Our Borders: Barriers and Solutions to Applying Environmental Regulations to U.S. Corporations That Outsource Production, 31 COLO. NAT. RESOURCES ENERGY & ENVTL. L. REV. 165 (Winter … Continue reading

The river fire didn’t cause alarm immediately, but Time and National Geographic featured it in subsequent issues. As it turned out, this was not even the first time that the river had caught fire—it was at least the tenth. The burning river served as a catalyst for the environmental protection movement. Nixon established the Environmental Protection Agency (EPA)^[7]Richard Nixon, Message to the Congress Transmitting Reorganization Plan 4 of 1970: National Oceanic and Atmospheric Administration – July 9, 1970, 1970 Pub. Papers 587 (1970). This document can be found in HeinOnline’s U.S. … Continue reading in 1970, and the first Earth Day was hosted that same year. And, it was time to put real protections into place for America’s waterways.

Cleaning Up Our Act

The Clean Water Act,^[8]To amend the Federal Water Pollution Control Act., Public Law 92-500, 92 Congress. 86 Stat. 816 (1972). This act can be found in HeinOnline’s U.S. Statutes at Large database. which was created as amendments to the Federal Water Pollution Control Act passed in 1948, sought “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” To do so, it established pollution regulations for the waters of the United States and granted the Environmental Protection Agency the authority to enforce these regulations. It also required states to create their own water quality standards, with the EPA coming in to set standards if a state failed to do so. Importantly, the Act prohibited the release of pollutants from a point source into navigable waters without a permit. A point source refers to one origin, such as a manufacturing plant. Additionally, it provided funding for the construction of sewage treatment plants.

The Clean Water Act has since been amended a couple times, such as with the Clean Water Act of 1977,^[9]To amend the Federal Water Pollution Control Act to provide for additional authorizations, and for other purposes., Public Law 95-217, 95 Congress. 91 Stat. 1566 (1977). This act can be found in HeinOnline’s U.S. Statutes at Large database. which included more than 70 updates to the original Act, mainly in increasing the EPA’s authority. The Water Quality Act of 1987^[10]To amend the Federal Water Pollution Control Act to provide for the renewal of the quality of the Nation’s waters, and for other purposes., Public Law 100-4, 100 Congress. 101 Stat. 7 (1987). This act can be found in HeinOnline’s U.S. … Continue reading made further changes, such as efforts to control nonpoint source pollution (such as cities and construction sites), stormwater management, and the creation of the Great Lakes National Program Office. However, despite these changes, even though pollution levels have thankfully decreased since the 1960s, the goals set by the Clean Water Act^[11]1 3 (September 20, 2022) Clean Water Act at Fifty: Highlights and Lessons Learned from a Half Century of Transformative Legislation. This document can be found in HeinOnline’s U.S. Congressional Documents database. were not reached. These included making all waters in the U.S. safe for fishing and swimming by 1983 and completely eliminating water pollution discharge by 1985.

Watered Down in Court

Numerous court cases have both expanded and contracted the power of the EPA as granted by the Clean Water Act. Particularly, the Supreme Court has gone back and forth on exactly which waters fall under the jurisdiction of the Act. In the Rapanos v. United States^[12]Rapanos et al. v. United States, 547 U.S. 715, 812 (2006). This case can be found in HeinOnline’s U.S. Supreme Court Library. case in 2006, the “significant nexus” test was established to determine which waters fell under federal jurisdiction. Essentially, this rule determined that if a wetland had significant impact on U.S. navigable waters, it would apply to the rules of the Clean Water Act. However, this rule was reversed in Sackett v. EPA^[13]21-454 U.S. Reports 1 (2023) Sackett et ux. v. Environmental Protection Agency et al. This slip opinion can be found in HeinOnline’s U.S. Supreme Court Library. in 2023. In a 4-1-4 decision, the Court created a new test that stated that only waters that had a “continuous surface connection” to navigable waters fell under federal jurisdiction. This eliminated EPA protection from nearly half of U.S. waterways. It is unclear what impact this decision will have on water quality in the future.

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In the face of so much uncertainty, water rights and how to use our water resources becomes even more vital to understand. This database is available for a 15% discount now through November 18, 2024—so request a quote today!