clean water act essay conclusion

What Is the Clean Water Act?

It protects the quality of U.S. waters and has undergone several changes since 1972.

Liz is a marine biologist, environmental regulation specialist, and science writer. She has previously studied Antarctic fish, seaweed, and marine coastal ecology.

• College of William & Mary
• Northeastern University
• Corporate Responsibility
• Environmental Policy
• Food Issues

Pollution Problems Before the Clean Water Act

How the clean water act became law, what does the clean water act do, impact of the 2015 clean water rule, current status of the clean water act.

The Clean Water Act is the primary federal law protecting the quality of the U.S. surface waters, including lakes, rivers, and coastal wetlands. The legislation was enacted in 1972 after being vetoed by President Nixon. Since then, the legislation has gone through many iterations.

Before the Clean Water Act, U.S. waterways were famously filthy. Untreated and undertreated wastewater filled nearby cities with the smell of human waste. Clouds of soap suds slid down waterways, and industrial chemicals were released into the waterways supplying drinking water.

In 1948, President Eisenhower signed into law the Federal Pollution Control Act. This legislation funded the study and management of water pollution.

However, when faced with a bill meant to strengthen this act, Eisenhower issued a veto because he considered water pollution to be a local issue and urged state governments to take their share of the responsibility. Yet just a year later, when President John F. Kennedy took office, the federal bill was signed into law. 

Unfortunately, even the strengthened Federal Pollution Control Act was far from enough to curb the country’s water pollution problem. Most water quality management remained under the responsibility of individual states.

To avoid strict pollution requirements, companies could move to states with more lenient regulations. However, the interconnectedness of waterways did not retain pollution within state lines, so U.S. waters continued to suffer from severe pollution.

Following a blowout of Union Oil’s Platform A on January 28, 1969, 3.2 million gallons of crude oil spilled into the coastal waters of Santa Barbara, California. The environmentally catastrophic oil spill was blamed on inadequate safety precautions taken by the oil company.

Just a few months later, the oil-slicked surface of Cleveland’s Cuyahoga River lit on fire. While this was not the first time the Cuyahoga had caught fire, the blaze is credited with inspiring bipartisan support for cleaning up the country’s waterways.

Over the following three years, U.S. lawmakers drafted additional amendments to strengthen the Federal Water Pollution Control Act and establish the federal Environmental Protection Agency (EPA).

Despite the consensus and then-President Nixon’s support of the amendment’s environmental aims, Nixon vetoed the bill over its $24 billion price tag. Nonetheless, votes from the House and the Senate were enough to override the veto and sign the amendments into law. This strengthened version of the Federal Water Pollution Control Act became known as the Clean Water Act.

Broadly, the Clean Water Act regulates the release of pollutants into waters of the United States. The EPA oversees the Clean Water Act but delegates portions of the legislation’s mandate to State and federal agencies. Most of this oversight responsibility ultimately lies with the U.S. Army Corps of Engineers and state regulators.

Protected Waters Under the Law

The waters protected under the Clean Water Act have changed in the decades following the law’s passage. The original act defines waters of the United States as navigable waterways — rivers, streams, lakes, and bays, for instance, through which a boat can operate, as well as isolated wetlands adjacent to these waterways. The law does not include protections for groundwater.

Under the Clean Water Act, virtually any work within these so-called jurisdictional waters requires approval from a federal or state agency. For example, the installation of a dock or mooring buoy to waters of the United States would be considered “fill material” under the Clean Water Act, requiring a permit. Should impacts to the waterway be deemed overly severe, a permit may be denied to protect the waters' integrity.

The National Pollutant Discharge Elimination System

The Clean Water Act also established a system for regulating the release of pollutants into waters of the United States: The National Pollutant Discharge Elimination System, or NPDES.

The NPDES program is typically overseen by individual states, tribes, and territorial governments at the discretion of the EPA. Through the NPDES program, facilities that need to release pollutants into regulated waters are legally required to obtain a permit authorizing the discharges.

For example, a city’s sewage treatment facility is required to obtain an NPDES permit to release treated wastewater into the environment. Through the NPDES permit, monitoring requirements and pollution limits are often stipulated.

In other words, while receipt of an NPDES permit authorizes the release of pollutants into federal waters, the permit does not allow the unlimited pollution of a waterway. Instead, through the NPDES program, the Clean Water Act manages the extent to which a party may pollute and provides the authority to halt a facility’s release of pollutants if the terms of the NPDES permit are breached.

While the NPDES permit program regulates point source pollutants, or pollutants coming from a single, identifiable origin, the Clean Water Act also recognizes the importance of nonpoint source pollutants, or those originating in small quantities from many locations. These nonpoint source contaminants can still end up in our waterways, where they accumulate and cause harm both to the environment and to our sources of drinking water.

For example, all the cars on the road release small amounts of oil onto the roadways. When it rains, water washes the roads, carrying oil to surrounding streams. While each car may release a negligible amount of oil, the accumulation of oil in waterways can have a significant impact on the environment. Similarly, the use of fertilizers on a single lawn may seem negligible, but the accumulation of these nutrients can cause harmful algal blooms in downstream waterways.  

Unlike point source pollutants, like those coming from wastewater treatment plants or factories, these pervasive nonpoint source pollutants are not managed under the Clean Water Act by specific regulations. Instead, the law provides federal funding for states to each implement nonpoint source pollutant reduction programs of their own. Despite the funding provided under the Clean Water Act, nonpoint source pollutants remain the leading cause of water quality problems today.

The SWANCC Decision

In the 1990s, the Solid Waste Agency of Northern Cook County (SWANCC) sought to create a landfill from land used for sand and gravel mining decades earlier.

Despite the previous industrial use of the land, wetlands used as breeding grounds for the great blue heron, along with other migratory birds, developed in the intervening years.

The wetlands were not directly adjacent to a navigable waterway, so they were not explicitly protected under the Clean Water Act. Nonetheless, the Army Corps deemed the wetlands as ‘jurisdictional’ based on their Migratory Bird Rule. Since many migratory birds cross state lines, the use of wetlands by these birds, according to the rule, connects these wetlands to navigable waters, extending Clean Water Act protections to these otherwise isolated areas.

The Army Corps ultimately denied SWANCC the permit needed under the Clean Water Act for their landfill development project based on the project’s anticipated impacts to migratory birds.

This was not the first time the Army Corps had applied the Migratory Bird Rule to apply Clean Water Act protections to isolated wetlands, nor was it the first time the rule’s use was challenged. However, lower courts ruled in favor of the Army Corps, upholding the rule. Nonetheless, in 2001 the case between SWANCC and the U.S. Army Corps of Engineers made its way to the Supreme Court.

At the heart of the case was the definition of ‘navigable waters’ under the Clean Water Act.  The Supreme Court ruled in a 5-4 decision that the Army Corps’ Migratory Bird Rule was not supported under the Clean Water Act. Many legal scholars found this ruling to be in direct opposition to previous decisions issued by the Supreme Court, which found it to be Congress’s intent that the Clean Water Act’s jurisdiction over ‘navigable waters’ receive the broadest interpretation possible. Through the Supreme Court’s ‘SWANCC Decision’, a significant portion of U.S. wetlands lost coverage under the Clean Water Act. However, the uncertainty rendered by the SWANCC Decision made it impossible to determine the true impact of the ruling.

The Rapanos Decision

Just five years later, the Supreme Court faced another landmark case that questioned the protection of isolated wetlands under the Clean Water Act: Rapanos v. United States.

The appellant, John Rapanos, filled 54 acres of wetlands on his property with sand in preparation for construction of a mall and residential homes. Rapanos did not file for a permit with the Army Corps before burying the wetlands because, in his view, the wetlands on his property did not constitute Waters of the United States because they were isolated and 20 miles from any navigable waterway. The United States pursued Rapanos’ action as a violation of the Clean Water Act.

Unlike the SWANCC case, the Supreme Court was unable to issue a decision on Rapanos v. United States. Nonetheless, Justice Kennedy’s opinion established important precedent for interpretation of the Clean Water Act for the next decade. Kennedy deemed wetlands with a “significant nexus” to downstream navigable waters protected under the Clean Water Act. In Kennedy’s opinion, wetlands must “significantly affect the chemical, physical, and biological integrity” of traditionally navigable waters to have a significant nexus.

Kennedy’s opinion left room for isolated wetlands to garner protection under the Clean Water Act under certain circumstances, but the EPA and the Army Corps struggled to issue clear guidance for regulators to issue consistent determinations based on the Rapanos Decision. Instead, the “significant nexus” standard caused many wetlands and similar isolated water features to require an individual, case-by-case analysis. 

Under the Obama administration, ambiguity resulting from the Rapanos Decision continued to leave many wetlands unprotected under the Clean Water Act.

The 2015 Clean Water Rule aimed to clarify and expand the waters eligible for protection under the Clean Water Act by providing specific guidance on the tributaries and adjacent waters protected by the act.

According to the Clean Water Rule, upstream waters with a clear bed, bank, and ordinary high water mark are protected. Furthermore, the Clean Water Rule explicitly extended protections to specific “regional water treasures” shown to impact downstream water health, such as California’s vernal pools and Texas’ coastal prairie wetlands.

Despite strong support from environmental activists, legislators, and scientists, the Obama administration’s Clean Water Rule received strong pushback by those who viewed the rule as a form of government overreach.

In 2017, the Trump administration formally announced its plan to review the Obama-era Clean Water Rule with the intent of revising or rescinding the rule’s protections. The Clean Water Rule was officially suspended in 2018 and repealed in 2019.

The Trump administration issued a replacement rule to roll back the Clean Water Act’s protections further, which was quickly labeled by environmental advocates as the “Dirty Water Rule.” Despite efforts to prevent the rule from taking hold, the Trump administration’s “Navigable Waters Protection Rule” went into effect on June 22, 2020.

The Rule immediately faced legal challenges around the country, which are expected to continue into 2021. So far, only Colorado has successfully prevented the Trump administration’s rule from taking hold. 

The Biden administration is expected to undo Trump's sweeping regulatory rollbacks, including recent changes to the interpretation of the Clean Water Act. However, instating a new rule to replace Trump's Navigable Waters Protection Rule will require input from both the EPA and the U.S. Army Corps of Engineers.

Given the coordination needed, it may be a year or two before changes are made. Nonetheless, changes are apparent already. On January 7, 2021, the EPA finalized its "Strengthening Transparency in Regulatory Science" rule. The new rule requires a more data-driven approach be used in the development of new environmental regulations, such as future decisions about the Clean Water Act.

Key Takeaways

• The Clean Water Act is the federal law protecting the nation's waterways.
• Based on various court decisions, the list of waters protected by the Clean Water Act has changed several times since the law was passed.
• The Obama-era Clean Water Rule clarified ambiguity resulting from the Rapanos Decision, a key Supreme Court case centered on the Clean Water Act.
• The Trump administration repealed the Clean Water Rule and replaced it with the Navigable Waters Protection Rule, which significantly decreased the waters protected under the Clean Water Act.

“ Water Quality: A Half Century of Progress .” EPA Alumni Association .

National Research Council. Identifying Future Drinking Water Contaminants . National Academies Press . 1999.

“ History of the Clean Water Act .” U.S. Environmental Protection Agency .

“ How a Disaster Changed the Face of Ocean Conservation .” National Oceanic and Atmospheric Administration .

“ The Cuyahoga River Caught Fire at Least a Dozen Times, but No One Cared Until 1969 .” Smithsonian Magazine .

“ The Clean Water Act .” Capitol Visitor Center .

Copeland, Claudia. “ Controversies over Redefining 'Fill Material' Under the Clean Water Act .” Congressional Research Service.

“ National Pollutant Discharge Elimination System (NPDES) .” U.S. Environmental Protection Agency .

“ CHAPTER 8. Monitoring and Reporting Conditions .” in NPDES Permit Writers’ Manual. U.S. Environmental Protection Agency. 2010.

“ Point Source .” National Oceanic and Atmospheric Administration .

“ Basic Information about Nonpoint Source (NPS) Pollution .” U.S. Environmental Protection Agency .

“ Nonpoint Source: Urban Areas .” U.S. Environmental Protection Agency .

DeGood, Kevin. “ A Call to Action on Combating Nonpoint Source and Stormwater Pollution .” Center for American Progress .

“ Section 319 .” Illinois Environmental Protection Agency .

“ Solid Waste Agency Of Northern Cook Cty. V.Army Corps Of Engineers (99-1178) 531 U.S. 159 (2001) 191 F.3d 845, reversed .” Legal Information Institute Cornell Law School .

“ Natural Environment: Memorandum .” U.S. Department of Transportation .

Adler, Jonathan H. “ Reckoning with Rapanos: Revisiting "Waters of the United States" and the Limits of Federal Wetland Regulation .” Journal of Environmental and Sustainability Review . 2006.

Christie, Jeanne, and Scott Hausmann. “ Various State Reactions to the SWANCC Decision .” Wetlands , vol. 23, 2003, doi:10.1672/0277-5212

“ Rapanos v. United States (04-1034) Carabell v. United States Army Corps of Engineers (04-1384) .” Legal Information Institute Cornell Law School .

Mank, Bradford. “ Implementing Rapanos - Will Justice Kennedy 's Significant Nexus Test Provide a Workable Standard for Lower Courts, Regulators and Developers? ” University of Cincinnati College of Law Scholarship and Publications . 2007.

“ Clean Water Rule: Definition of Waters of the United States .” Federal Register .

“ Commitment to Clean Water .” The White House of President Barack Obama .

“ Technical Questions and Answers For Implementation of the Clean Water Rule .” U.S. Environmental Protection Agency .

“ Fact Sheet: Clean Water Rule .” U.S. Environmental Protection Agency .

Richards, Ryan. “ Debunking the Trump Administration’s New Water Rule .” Center for American Progress .

Devine, Jon. “ Trump’s Dirty Water Rule: EPA Ignorance is Polluters’ Bliss .” Natural Resources Defense Council .

“ The Navigable Waters Protection Rule: Definition of Waters of the United States .” Federal Register, vol. 85, no. 77, 21 April 2020.

“ Strengthening Transparency in Regulatory Science .” Federal Register.

• Keystone XL Pipeline: Timeline of Events
• What Is the Migratory Bird Treaty Act?
• The Clean Air Act: Summary and Impact
• EPA Moves to Protect Alaska’s Bristol Bay from Massive Mining Project
• The Endangered Species Act: Summary, Impact, and Current Status
• Pollution Prevention Act: Summary and Importance
• Oil Pollution Act: Summary and Impact
• Puerto Rico Sues Oil Majors Over Hurricane Damage
• What Is the Nuclear Waste Policy Act?
• US Supreme Court Votes to Cook the Planet by Limiting EPA's Power
• What Is the Marine Mammal Protection Act?
• The National Environmental Policy Act (NEPA): Summary, Impact, Current Status
• What Do Riverkeepers Do? History and Environmental Policy
• The Santa Barbara Oil Spill: History and Impact
• The Safe Drinking Water Act (SDWA): Summary and Impact
• What Is the Resource Conservation and Recovery Act?

Environmental Legislation: Clean Water Act

Environmental legislation.

Clean Water Act (CWA) is the legislation piece of the United States that determines water quality standards, serves as a basis for the enactment of pollution control programs, and regulates the presence of contaminants in surface water. The law covers both point and non-point pollution sources. The former involves the presence of a point source (e.g. a pipe for dumping liquid waste from a factory into a nearby body of water or a vessel transporting the contaminant) while the latter does not have a single entry point and is, therefore, harder to track down (e.g. chemicals used for fertilization of large areas and stormwater runoff from both urban and industrial sources). Later amendments of the law addressed several specific areas, such as pollution risks from potential oil spills. Importantly, the CWA was the first environmental law that allowed any citizen to file a suit against a person who committed an environmental regulation violation or an Environmental Protection Agency in the case where it failed to perform its duty determined by CWA.

Legislation Passing Process

The law is one of the most long-standing modern pieces of environmental legislation pieces in the United States. It was initially enacted in 1948 as the Federal Water Pollution Control Act. In 1972, several important amendments and expansions were introduced to it, after which it was enacted in its final form and under its current name. The most significant amendments included the framework for pollutant discharge regulation on a national level, the authority of the EPA to implement programs that control the pollution of freshwater, expansion of previously existing water quality standards to include all existing surface bodies of water and establishing funding opportunities for the construction of sewage treatment plants. The legislation was reworked several times to introduce amendments, with the most significant being the improvement of grant reception process in 1981, the 1987 amendments to the regulation of toxic waste discharge and the introduction of the State Water Pollution Control Revolving Fund, and the improvement of regulations associated with oil spills in 1990. The most recent amendments add several details to the ongoing initiative of restoring the Great Lakes.

Arguments For and Against the Legislation

The enactment of the legislation was largely a response to the abysmal state of the bodies of water in the United States in the seventies. Many rivers and lakes were contaminated to the point where at least one – Cuyahoga River – became combustible. Therefore, the enactment was a mostly positive development. It introduced a definitive legal restriction on the dumping of waste into navigable waters, enabled EPA to create new standards and initiatives, and accounted for previously uncontrolled areas, such as non-point solutions. However, it should be mentioned that in its initial form, the legislation piece was vague enough to permit over-regulation in some areas. Specifically, the artificial drains and ponds used in the agricultural sector became subject to jurisdiction determination.

Effects of Legislation

While the exact effect of the legislation is difficult to pinpoint due to its complex and diverse nature, it can be said that on average some progress was made in slowing down the rate of pollution of all freshwater bodies in the U.S. Also, it empowered individuals to participate in the legal enforcement of environmental protection.

In my opinion, the effect of the legislation, while observable, is not sufficient enough to be considered successful. Most of the water in the U.S. is still below the acceptable level of quality. On many occasions, the rate of change is important for the survival of certain species and the preservation of the ecosystem. Therefore, while important as a starting point, the CWA is currently not effective enough.

Cite this paper

• Chicago (N-B)
• Chicago (A-D)

StudyCorgi. (2020, November 6). Environmental Legislation: Clean Water Act. https://studycorgi.com/environmental-legislation-clean-water-act/

"Environmental Legislation: Clean Water Act." StudyCorgi , 6 Nov. 2020, studycorgi.com/environmental-legislation-clean-water-act/.

StudyCorgi . (2020) 'Environmental Legislation: Clean Water Act'. 6 November.

1. StudyCorgi . "Environmental Legislation: Clean Water Act." November 6, 2020. https://studycorgi.com/environmental-legislation-clean-water-act/.

Bibliography

StudyCorgi . "Environmental Legislation: Clean Water Act." November 6, 2020. https://studycorgi.com/environmental-legislation-clean-water-act/.

StudyCorgi . 2020. "Environmental Legislation: Clean Water Act." November 6, 2020. https://studycorgi.com/environmental-legislation-clean-water-act/.

This paper, “Environmental Legislation: Clean Water Act”, was written and voluntary submitted to our free essay database by a straight-A student. Please ensure you properly reference the paper if you're using it to write your assignment.

Before publication, the StudyCorgi editorial team proofread and checked the paper to make sure it meets the highest standards in terms of grammar, punctuation, style, fact accuracy, copyright issues, and inclusive language. Last updated: November 6, 2020 .

If you are the author of this paper and no longer wish to have it published on StudyCorgi, request the removal . Please use the “ Donate your paper ” form to submit an essay.

Essay on Clean Water and Sanitation

Students are often asked to write an essay on Clean Water and Sanitation in their schools and colleges. And if you’re also looking for the same, we have created 100-word, 250-word, and 500-word essays on the topic.

Let’s take a look…

100 Words Essay on Clean Water and Sanitation

Importance of clean water.

Clean water is vital for life. Every living organism needs it for survival. It helps in digestion, removes toxins, and keeps us hydrated. Without clean water, we risk diseases.

Role of Sanitation

Sanitation is as important as clean water. It prevents the spread of germs, ensuring we stay healthy. Good sanitation practices include proper waste disposal and maintaining cleanliness.

Link Between Clean Water and Sanitation

Clean water and sanitation are interconnected. Contaminated water can lead to poor sanitation, and vice versa. Hence, both are essential for a healthy life.

250 Words Essay on Clean Water and Sanitation

Introduction.

Clean water and sanitation are fundamental components of human health and wellbeing. They are deeply intertwined with socioeconomic development, environmental sustainability, and human dignity.

The Importance of Clean Water

Water is the lifeblood of our planet. It is essential for maintaining biodiversity, facilitating agricultural processes, and supporting human life. However, the quality of this precious resource is threatened by pollution, overexploitation, and climate change. Access to clean water is not just about quenching thirst; it’s about ensuring the health of individuals and communities. Waterborne diseases, often a result of poor water quality, account for substantial morbidity and mortality worldwide.

Sanitation: More than Hygiene

Sanitation extends beyond personal hygiene. It involves the management of human waste, solid waste, and wastewater. Proper sanitation practices reduce the incidence of diseases, enhance the quality of life, and contribute to social and economic development. Inadequate sanitation is a pressing issue in many parts of the world, leading to serious public health crises.

Linking Clean Water and Sanitation

The connection between clean water and sanitation is undeniable. Contaminated water sources due to poor sanitation practices can lead to the spread of diseases like cholera, dysentery, and typhoid. Therefore, efforts to improve water quality must go hand in hand with improving sanitation facilities.

The challenges surrounding clean water and sanitation are formidable, but not insurmountable. Through concerted efforts from governments, communities, and individuals, we can ensure access to these fundamental human rights for everyone, thereby paving the way for a healthier, more sustainable world.

500 Words Essay on Clean Water and Sanitation

Clean water and sanitation are fundamental to human health and well-being. Despite being recognized as a human right by the United Nations, millions of people worldwide still lack access to these basic necessities. The importance of clean water and sanitation cannot be overstated, as they play a crucial role in preventing disease, promoting health, and improving overall quality of life.

Water is a vital resource for all forms of life. However, clean and safe drinking water is not universally available. Contaminated water can transmit diseases such as diarrhea, cholera, dysentery, typhoid, and polio, leading to significant morbidity and mortality, particularly in developing countries. Furthermore, the lack of clean water can impede social and economic development, as individuals may spend significant time and effort obtaining water, rather than engaging in productive activities or education.

The Necessity of Sanitation

Sanitation, the provision of facilities and services for the safe disposal of human waste, is equally important. Poor sanitation can lead to the contamination of drinking water sources and the environment, resulting in a range of health problems. Moreover, inadequate sanitation facilities can compromise personal safety and dignity, particularly for women and girls. Improved sanitation contributes to social development by enhancing people’s living conditions and dignity, and to economic development by reducing healthcare costs and improving productivity.

Challenges and Solutions

Despite the critical importance of clean water and sanitation, numerous challenges hinder universal access. These include inadequate infrastructure, lack of funding, and insufficient awareness about the importance of hygiene. Addressing these challenges requires concerted efforts from governments, non-governmental organizations, and communities.

Infrastructure development is crucial for providing clean water and sanitation facilities, particularly in rural and marginalized areas. This includes building water purification systems, sewage treatment plants, and toilets. However, such initiatives require significant financial resources. Therefore, increased investment from both public and private sectors is necessary.

Education and awareness programs can also play a vital role in improving water and sanitation conditions. By educating communities about the importance of hygiene and the risks associated with contaminated water and poor sanitation, we can encourage behavior change and promote the utilization of water and sanitation facilities.

In conclusion, clean water and sanitation are not just basic human needs, but they are also fundamental human rights. Despite the challenges, achieving universal access to clean water and sanitation is possible through infrastructure development, increased funding, and education. By ensuring everyone has access to these basic services, we can significantly improve global health, foster social and economic development, and ultimately, create a more equitable world.

That’s it! I hope the essay helped you.

If you’re looking for more, here are essays on other interesting topics:

• Essay on Challenges of Clean Water and Their Solutions
• Essay on Bottled Water
• Essay on Blood is Thicker Than Water

Apart from these, you can look at all the essays by clicking here .

Happy studying!

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Save my name, email, and website in this browser for the next time I comment.

An official website of the United States government

Here’s how you know

Official websites use .gov A .gov website belongs to an official government organization in the United States.

Secure .gov websites use HTTPS A lock ( Lock A locked padlock ) or https:// means you’ve safely connected to the .gov website. Share sensitive information only on official, secure websites.

JavaScript appears to be disabled on this computer. Please click here to see any active alerts .

Summary of the Clean Water Act

• 2018 version of CWA from the U.S. Code (233 pp, 1.23 MB)
• The official text of the CWA continues to be available in the United States Code from the US Government Printing Office

33 U.S.C. §1251 et seq. (1972)

The Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. The basis of the CWA was enacted in 1948 and was called the Federal Water Pollution Control Act, but the Act was significantly reorganized and expanded in 1972. "Clean Water Act" became the Act's common name with amendments in 1972.

Under the CWA, EPA has implemented pollution control programs such as setting wastewater standards for industry. EPA has also developed national water quality criteria recommendations for pollutants in surface waters.

• EPA's National Pollutant Discharge Elimination System (NPDES) permit program controls discharges.
• Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need a NPDES permit;
• Industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters.

Compliance and Enforcement

• Clean Water Act Compliance Monitoring : investigations and inspections
• Water Enforcement

History of this Act

• EPA History: Federal Water Pollution Control Act Amendments of 1972
• History of the Clean Water Act
• Archived EPA History: Clean Water Act

More Information 

The Office of Water (OW) ensures drinking water is safe, and restores and maintains oceans, watersheds, and their aquatic ecosystems to protect human health, support economic and recreational activities, and provide healthy habitat for fish, plants, and wildlife.

• The EPA Watershed Academy provides training courses on statutes, watershed protection, and other key Clean Water Act resources.
• Laws & Regulations Home
• By Business Sector
• Enforcement
• Laws & Executive Orders
• Regulations

Judicial Destruction of the Clean Water Act: Sackett v. EPA

• Share The University of Chicago Law Review | Judicial Destruction of the Clean Water Act: <i>Sackett v. EPA</i> on Facebook
• Share The University of Chicago Law Review | Judicial Destruction of the Clean Water Act: <i>Sackett v. EPA</i> on Twitter
• Share The University of Chicago Law Review | Judicial Destruction of the Clean Water Act: <i>Sackett v. EPA</i> on Email
• Share The University of Chicago Law Review | Judicial Destruction of the Clean Water Act: <i>Sackett v. EPA</i> on LinkedIn

Introduction

In 1972, Congress passed the Clean Water Act 1 by overwhelming bipartisan majorities. The initial vote in the Senate in favor of passage was 74 to 0. 2 The House vote was 366 to 11. 3 When President Richard Nixon vetoed the bill, both the House and the Senate overrode the presidential veto the next day. The Senate vote was 52 to 12 and the House vote was 247 to 23. 4 The Act has since been one of the United States’ great environmental success stories, making great strides toward achievement of the Act’s overriding objective stated in its very first section: to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 5

More than fifty years later, on May 25, 2023, the votes of only five people—all Justices on the Supreme Court—were all that was needed to devastate the Clean Water Act. In Sackett v. EPA , 6 under the guise of judicial interpretation of the Act, the Court effectively reduced the Act’s coverage of the nation’s streams by as much as 80%, and of the nation’s wetlands by at least 50%. As a practical matter, moreover, the Court’s ruling will make it exceedingly hard, if not impossible, to protect even those waters that the five Justices in the majority agree are still covered. Contrary to the majority’s proffered reasoning, nothing in the relevant statutory language compelled such an unprovoked hit job on the nation’s ability to protect its waters from harmful pollution.

However, even that extraordinary result pales in comparison to the views of two of the five Justices who joined the majority—Justices Clarence Thomas and Neil Gorsuch—who made clear their shared view that the courts need to go further in cutting back on the Clean Water Act in future cases. In addition to joining the majority “in full,” Justice Thomas authored a separate concurring opinion, which Justice Gorsuch joined, which denied that Congress ever intended in the Clean Water Act to address the adverse effects of pollution on water quality at all. Indeed, the two Justices even questioned whether Congress had the constitutional authority under the Commerce Clause to do so. Not surprisingly, their supporting legal analysis is not remotely persuasive. What is surprising, however, and unsettling too, is the thinness and misleading nature of the concurrence’s legal analysis—the kind of work product one might expect from an unduly zealous and partisan advocate but not from a Supreme Court Justice.

This Essay is divided into three Parts. The first Part describes the ruling, reasoning, and impact of the majority opinion in Sackett . The second Part describes the proffered ruling, reasoning, and—if ever adopted by the courts—impact of Justice Thomas’ concurring opinion, which Justice Gorsuch joined. The third Part demonstrates why the majority’s reasoning lacks merit and then, far worse, why the Thomas concurrence falls far short of the kind of competent, principled legal analysis that the public can fairly demand of its Supreme Court Justices.

I.  Justice Alito for the Court

Justice Samuel Alito authored the opinion for the five-Justice majority in Sackett , which Chief Justice John Roberts and Justices Thomas, Gorsuch, and Amy Coney Barrett all joined. The Sackett majority significantly cuts back on the geographic reach of the Clean Water Act and, consequently, on its effectiveness.

The Clean Water Act restricts discharges of pollutants into “navigable waters” and in turn defines “navigable waters” as “waters of the United States.” 7 For most of the past fifty years, 8 the two federal agencies administering the Act—the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps)—have together embraced a very broad view of the meaning of “waters of the United States” that defines the Act’s jurisdiction. They have taken the position that the Act’s jurisdiction extends far beyond those traditional “navigable waters of the United States” covered by nineteenth century federal laws, such as those defined by the Court’s 1870 decision in The Daniel Ball. 9

Prior to Sackett, the agencies had looked to three Supreme Court cases that addressed the meaning of “waters of the United States” to decide how to define the scope of that expansive jurisdiction: United States v. Riverside Bayview , decided in 1985, 10 Solid Waste Agency v. Northern Cook County, decided in 2001, 11 and Rapanos v. United States , decided in 2006. 12 Reading those cases together, the agencies had defined the jurisdictional reach of the Clean Water Act as extending beyond the scope of traditional navigable waters to include any waters with a “significant nexus” to those traditional navigable waters. According to the agencies, those waters may include, inter alia, tributaries (perennial, ephemeral, or intermittent streams, for example), lakes, and wetlands that possess that necessary hydrologic nexus. 13

In Sackett, the Court cut back on the Clean Water Act’s geographic reach in three significant respects. First, all nine Justices rejected the “significant nexus” test upon which EPA and the Corps had relied, which was itself rooted in Justice Anthony Kennedy’s separate concurring opinion in Rapanos , 14 because they found its application unsupported by the statutory language and untenably vague in application. 15 Second, relying on the dictionary definition of “waters” first invoked by Justice Antonin Scalia in his Rapanos plurality opinion, the five-Justice majority ruled that “waters” were limited to “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” 16 Finally, although the majority agreed that there was statutory language that made clear that Congress had intended to include “adjacent wetlands” within the Clean Water Act’s jurisdiction, the only wetlands covered would be those that are “indistinguishably part of a body of water that itself constitutes ‘waters’ under the [Clean Water Act].” 17

The environmental impact of this reduction in geographic jurisdiction is massive. Many of the nation’s waters that have benefited from the Clean Water Act’s protection would be removed entirely from the Act based on the Court’s embrace of a dictionary definition. For example, ephemeral and intermittent streams—a natural product of the seasonal nature of rainfall in vast parts of the country—would readily seem to fall outside the scope of “relatively permanent, standing or continuously flowing bodies of water.” 18 EPA internal documents suggest this would eliminate 50% to 80% of the Act’s coverage of streams in the United States. 19

The Court’s conclusion that the only wetlands that meet Congress’s reference to “adjacent wetlands” are those that are “indistinguishably part of a body of water that itself constitutes ‘waters’ under the [Clean Water Act]” is no less dramatic in its environmental impact. 20 As of the date of the Court’s release of the opinion, no wetlands scientist knows what that test means, because it bears no relation to any existing scientific understanding of how wetlands relate to traditional navigable waters within close physical proximity. Internal EPA inquiry suggests, however, that the Court’s adoption of the Rapanos plurality’s “continuous flow” requirement for adjacency could readily lead to at least a 50% reduction of the Clean Water Act’s coverage of wetlands in the United States. 21

Prior to Sackett, a peer-reviewed scientific publication warned that if the Court were to adopt the new jurisdictional tests that it has now adopted, it would cause “a drastic reduction in Clean Water Act protections.” 22 The arid regions in the nation will be most affected “where there is a high proportion of ephemeral streams.” 23 The study examined specific watersheds across the country, including one in New Mexico where “wetland jurisdiction likely would be reduced by more than 50%, and stream jurisdiction likely would be reduced by more than 90%.” 24

Finally, even those stunning percentage reductions understate the enormous impact of the Court’s ruling because the majority’s reasoning will make it practically impossible for EPA and the Corps to protect even those waters that the Justices agreed are covered. As Justice Scalia explained in his Rapanos plurality opinion upon which the Court subsequently relied in County of Maui v. Hawaii Wildlife Fund , 25 EPA and the Corps have authority to regulate discharges into noncovered waters that flow into covered waters. 26 True, but going forward that is an illusory promise. Once the waters are not covered, the federal government will have no way of knowing about those other sources of pollution in noncovered waters.

Under what had been settled law, the government knew about all those other discharges located outside traditional navigable waters. This was because under the “significant nexus” theory of jurisdiction, those responsible for the discharges had to secure a permit from the government and submit daily monitoring reports of the discharges. None of that will automatically happen going forward. To regulate those other sources, the government will first have to identify a water quality problem in a covered water, then expend considerable resources to identify and track down pollution sources located outside the government’s presumptive jurisdiction, and then prove those sources are the ones from which pollutants are reaching the covered waters.

It is a Herculean task at best. Even gaining physical access to the locations of the discharges on private property will not be easy, if not practically impossible. And, of course, avoiding such a potentially insurmountable hurdle was precisely why Justice Kennedy, EPA, and the Corps had all concluded that waters should be covered by the Clean Water Act so long as they possessed a significant hydrologic nexus to traditional navigable waters. Otherwise, the government could not possibly achieve the Act’s stated objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 27

II.  Justices Thomas and Gorsuch Concurring

As massive a cutback as the majority’s ruling is on the jurisdiction of the Clean Water Act, it is mere child’s play in comparison to the interpretation of the Act advanced in the concurring opinion by Justice Thomas, which Justice Gorsuch joined. It is no exaggeration that, under their view, the Clean Water Act would become a virtual nullity. The landmark 1972 Act that Congress enacted in the heyday of the nation’s embrace of environmentalism would accomplish little more than the several Rivers and Harbors Acts that Congress passed during the 1890s. 

The concurrence began by endorsing “in full” the majority’s narrow, dictionary-driven view of the meaning of “waters of the United States.” 28 But then Justice Thomas announced he was writing “separately to pick up where the Court leaves off” by addressing how the additional statutory terms “navigable” and “of the United States” further limit the Clean Water Act’s applicability. 29 In short, he was inviting the lower courts to take these next steps.

According to the Thomas concurrence, the Clean Water Act covers only traditional navigable waters, essentially the same as those governed by the Rivers and Harbors Acts of the 1890s. That would include waters that “form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries,” 30 “waters that are not currently capable of supporting interstate commerce, though they once did,” 31 and “waters that could be made navigable with reasonable and feasible improvement.” 32    That is a slightly expanded version of The Daniel Ball definition of navigable waters based on subsequent Supreme Court rulings extending the term to “past” navigable waters. 33

Even for those waters covered, moreover, the Act would regulate only discharges of pollutants that affected the water’s navigability or otherwise affected suitability of the waters for interstate commerce. The Act would not otherwise cover activities that “merely ‘affect’ water-based commerce.” Accordingly, outside the Clean Water Act’s reach would be activities regulated by state “[i]nspection laws, quarantine laws, health laws of every description, as well as laws regulating the internal commerce of a State.” 34 None would be “within Congress’ channels-of-commerce authority.” Water quality–based protections—an example of “health laws of every description”—would presumably fail this jurisdictional test. 35

The linchpin of the concurrence’s legal argument for this truly extraordinary result is the declaration that the Court used “navigable waters” and “waters of the United States” interchangeably and synonymously for decades prior to congressional enactment of the Clean Water Act of 1972. Accordingly, Justice Thomas argues, there is no reason to conclude that the Act’s defining of “navigable waters” as “waters of the United States” was intended to expand the Act’s coverage beyond traditional nineteenth century navigable waters. 36

In support of his assertion that “navigable waters” and “waters of the United States” refer to the same set of waters, Justice Thomas claims that the “courts and Congress had long used the terms ‘navigable water,’ ‘navigable water of the United States,’ and ‘the waters of the United States’ interchangeably to signify those waters to which the traditional channels-of-commerce authority extended.” 37 In particular, the concurrence argues that “[t]he River and Harbor Acts of 1890, 1894, and 1899 illustrate the limits of the channels-of-commerce authority,” and “they use the terms ‘navigable water,’ ‘water of the United States,’ and ‘navigable water of the United States’ interchangeably.” 38

In support of the further assertion that both terms refer to no more than traditional navigable waters, as defined by the expanded Daniel Ball test, Justice Thomas claims that “[b]y the time of the CWA’s enactment,” “critically, the statutory terms ‘navigable waters,’ ‘navigable waters of the United States,’ and ‘waters of the United States’ were still understood as invoking only Congress’ authority over waters that are, were, or could be used as highways of interstate or foreign commerce.” 39 According to the concurrence, “[t]he text of the CWA extends jurisdiction to ‘navigable waters,’ and— precisely tracking The Daniel Ball —clarifies that it reaches ‘the waters of the United States,’ rather than the navigable waters of the States.” 40 “Thus,” the concurrence concludes, “the CWA’s use of the phrase ‘the waters of the United States’ reinforces, rather than lessens, the need for a water to be at least part of ‘a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.’” 41

Justices Thomas and Gorsuch also supported their view by repudiating what they acknowledged had been the longstanding view of EPA, the Corps, and the lower courts—that Congress sought in the Clean Water Act to exercise the kind of expansive Commerce Clause authority that the Supreme Court had recognized in upholding federal legislation during the New Deal. 42 Their concurrence grudgingly acknowledged that “[b]y the time of the Clean Water Act’s enactment, the New Deal era arguably had relaxed the . . . limitation” that “Congress could regulate . . . only for purposes of . . . navigability.” 43 According to the concurrence, however, Congress chose to continue adhering to that limitation in defining the Clean Water Act’s jurisdiction and faulted EPA and the Corps for “treat[ing] the statute as if it were based on New Deal era conceptions of Congress’ commerce power. . . . [W]hile not all environmental statutes are so textually limited, Congress chose to tether federal jurisdiction under the [Clean Water Act] to its traditional authority over navigable waters.” 44

III.  Unpersuasive and Misleading Legal Analysis

No Justice dissented from the Court’s judgment reversing the Ninth Circuit’s ruling favorable to the federal government. Although four Justices—Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson—declined to join the majority opinion and sharply criticized its reasoning in two concurring opinions, they agreed “with the Court’s bottom-line judgment that the wetlands on the Sacketts’ property are not covered by the Act and are therefore not subject to permitting requirements.” 45

Justice Kavanaugh’s decision not to join the majority was certainly a surprise. It makes no precedential difference, of course, whether the Court’s majority is supported by five or six Justices. Justice Kavanaugh’s decision to split from the majority appears, however, to have had a dramatic effect on the views expressed and not expressed by Justices Sotomayor, Kagan, and Jackson.

Even more surprising than Justice Kavanaugh’s decision not to join the majority was the decision of Justices Sotomayor, Kagan, and Jackson to join the judgment, and not to otherwise express any strong views in the case that Justice Kavanaugh might find off-putting. They apparently thought it more strategically prudent for the longer term to embrace Justice Kavanaugh and his independence than more aggressively take on the broader implications of either the majority opinion or the Thomas concurrence. Their decision, however, was not without cost.

In Rapanos, Justice John Paul Stevens filed a 23-page stinging dissent, joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer that directly challenged Justice Scalia’s narrow definition of “waters of the United States.” 46 The dissent singled out for criticism the plurality’s reliance on a “dictionary for a proposition that it does not contain”—that “streams can never be intermittent or ephemeral” and fall within the reach of the Clean Water Act. 47 The dissent sharply rebuked the plurality for “needlessly jeopardiz[ing] the quality of our waters” and contended that the wetlands at issue in Rapanos , which are very similar to those in Sackett in terms of their proximity to more traditional navigable waters , fell within the scope of the Clean Water Act. 48

By contrast, in Sackett, neither the Kavanaugh nor Kagan concurring opinions even discussed the broader legal issue addressed by the majority, including its reliance on a dictionary to remove ephemeral and intermittent streams from the Clean Water Act’s coverage. The only issue that either of those two concurring opinions discussed was whether the majority had correctly construed the term “adjacent” in determining which wetlands were covered by the Act. Both disagreed with the majority that only those wetlands with a “continuous surface connection” to and otherwise “indistinguishable” from a covered navigable water met the test. 49 In contrast to Rapanos, the two concurring opinions were otherwise completely silent on the no less sweeping legal issues addressed by the majority that cut back on other aspects of the Clean Water Act’s geographic reach.

Even more remarkably, not even Justice Kagan’s separate concurrence took on the issues addressed by Justice Thomas’ separate concurrence. Justice Thomas was consequently never challenged for his legal arguments that would effectively eliminate the Clean Water Act’s ability to protect the nation’s waters from pollution. As a result, lower courts may well accept Justice Thomas’s invitation to take up the additional legal issues he raises in his concurrence, without the benefit of any other Justice making clear why those views are baseless.

This Essay seeks to fill that gap. It assesses the reasoning of the majority, which, while unpersuasive, at least had the pretense of rational legal discourse. And this Essay challenges the legal arguments of the Thomas concurrence, which are beyond any plausible notion of legal tenability.

A. Majority’s Reasoning

First, the majority relies exclusively on its preferred dictionary for its ruling that “waters of the United States” is limited to “those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” 50 However, as Justice Stevens well explained in his Rapanos dissent, even that dictionary does not support the proposition asserted by Justice Scalia in Rapanos or now by the Sackett majority. “The dictionary treats ‘streams’ as ‘waters’ but has nothing to say about whether streams must contain water year round to qualify as ‘streams.’ . . . [C]ommon sense and common usage demonstrate that intermittent streams, like perennial streams, are still streams.” 51  

Moreover, not only is there zero evidence in the legislative record to suggest that Congress was aware of this particular dictionary definition, let alone the atextual gloss the Sackett majority adds to it, but the majority completely ignores the Act’s legislative history. That historical record includes contemporaneous congressional reports explicitly stating that the purpose of defining “navigable waters” as “waters of the United States” was to expand the Clean Water Act’s geographic reach through the exercise of the full scope of congressional Commerce Clause authority. 52 Notably, the House of Representatives’ original clean water bill did in fact define the proposed legislation’s geographic reach more strictly: using “navigable waters” and “ navigable waters of the United States” interchangeably, but not using “navigable waters” and “waters of the United States” interchangeably—the latter term never appeared in the House bill. 53 However, as described by the Ninth Circuit in 1978,

When the two [House and Senate] bills went to Conference Committee, the word “navigable” was deleted from the definition. The Conference Report explained that “[t]he conferees fully intend that the term ‘navigable waters’ be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.” 54

This is the same legislative history upon which the Supreme Court itself heavily relied in its unanimous Riverside Bayview opinion in 1985, which upheld the federal government’s broad assertion that the Clean Water Act permitted authority over nonnavigable wetlands hydrologically connected to nearby navigable waters. 55 Quoting from a Senate report, the Court then reasoned that “Congress demanded broad federal authority to control pollution, for ‘[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source.’” 56 This was also why, according to the Court, Congress made “it clear that the term ‘navigable’ as used in the Act is of limited import.” 57   

Finally, beyond a dictionary, the only support the Sackett majority could muster for devastating the Clean Water Act’s protections was its invocation of two “background principles of construction,” which the Court, for reasons known only to itself, declined to refer to by the normal judicial nomenclature of “canons” of statutory construction. 58 The first background principle is a newly invented canon that requires strict readings of any federal statutes that impinge on private property rights. The second requires a narrow reading of a federal statute’s reach when, as is true for the Clean Water Act, violation of the Act’s requirements includes the possibility of serious criminal penalties. Neither background principle, or canon of statutory construction, is persuasive.

As described by the majority, the first background principle provides that Congress must use “exceedingly clear language” if Congress seeks to “alter . . . the power of the Government over private property.” 59 One wonders, however, where the Court finds the historical pedigree for this supposed background principle. The only support the Court can purport to muster for its unprecedented invocation of this background principle is its 2020 decision in U.S. Forest Service v. Cowpasture River Preservation Ass’n . 60 Cowpasture, however, is wholly inapposite. In Cowpasture, the only legal issue before the Court was whether the federal Mineral Leasing Act granted the Forest Service the authority to grant rights of way within national forests traversed by the Appalachian Trail. 61 The Court ruled in favor of the Forest Service on the issue. The case did not directly implicate the distinct question, raised in Sackett , of whether the federal government possesses regulatory authority over activities occurring on private property.

Unlike the first background principle, the Court’s second background principle does enjoy a historical pedigree—it is the “rule of lenity”—though for reasons known only to the Court, it declines to mention that name. The rule of lenity provides that the Court will read ambiguous provisions in federal criminal statutes favorably to the defendant in light of due process concerns otherwise presented by convicting an individual for a serious offense based on vague or uncertain statutory language. 62 Although the meaning of “waters of the United States” implicates federal criminal prosecutions under the Clean Water Act, the Court has never previously ruled that the potential application of such penalties is a basis for reading an entire law’s jurisdictional scope in such a narrow way. The federal environmental laws are primarily civil laws. Potential criminal enforcement has never historically been a major dimension of these laws. Moreover, overbreadth problems can be fixed without cutting back on the entire law. Because, moreover, there are mens rea elements that prosecutors must prove to secure a conviction, a court can fairly dismiss any prosecution based on statutory language that the judge concludes is too vague to find such mens rea present. 63 Or a court can, as the Supreme Court has noted, “read a state-of-mind component into an offense even when the statutory definition did not in terms so provide.” 64

Indeed, that is the gist of what the Court held in 1995 in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon . 65 The decision in that case expressly rejected the argument that the potential for criminal prosecution for some Endangered Species Act violations warranted application of the rule of lenity to cut back on the statute’s overall reach. 66 The Court stated that the possibility of such unfairness in a discrete application was not a basis for cutting back the law generally, and suggested that a regulation could provide the notice that the statutory language by itself might lack. 67 How did the Sackett majority address this applicable, presumably binding precedent? By ignoring its existence.

Indeed, perhaps the Babbitt Court’s explicit rejection of the application of the rule of lenity to the statutory construction of a statute that, like the Clean Water Act, possesses both civil and criminal dimensions, is why the Sackett majority chose not to refer to its proffered background principle by its traditional rule of lenity name. The shift in nomenclature might prevent a ChatGPT research inquiry from finding the connection between the two lines of precedent. Binding Supreme Court precedent, however, cannot be avoided by such a transparently weak effort at judicial sleight of hand.

B. Concurrence’s Reasoning 

As weak as the majority’s reasoning is, it at least falls within the bounds of principled legal argument. The Thomas concurrence, by contrast, does not. As described above, the linchpin of Justice Thomas’s legal argument, joined by Justice Gorsuch, is that “navigable waters” and “waters of the United States” had previously been used interchangeably and synonymously. 68 That is the beginning and end of their contention that the Clean Water Act’s geographic jurisdiction extends no further than the nineteenth century meaning of “navigable waters” and that the Act is concerned only with the impact of discharges into those waters that affect their navigability and use in interstate commerce, but not matters like public health. 69 So too, it was the exclusive basis of the concurrence’s contention that Congress had not intended in the Clean Water Act to exercise expanded “New Deal era” authority under the Commerce Clause—contrary to congressional reports expressly to the contrary. 70

In support of their argument, Justices Thomas and Gorsuch asserted that the Court’s 1870 ruling in The Daniel Ball used the terms “navigable waters” and “waters of the United States” interchangeably, as they say Congress did in the Rivers and Harbors Acts of 1890, 1894, and 1899. But here’s the problem. Neither The Daniel Ball nor those congressional enactments of the 1890s support the concurrence’s claim.

For instance, Justices Thomas and Gorsuch claim that the Clean Water Act “precisely track[s]” the language of The Daniel Ball in equating “navigable waters” with “waters of the United States.” 71 If true, that might be a powerful argument, putting aside the obvious response that the 1972 law and its legislative history make clear Congress intended to do far more than replicate The Daniel Ball test or an 1899 law. The problem with their argument, however, is that their statement is not true.

How many times does The Daniel Ball use the term “waters of the United States?” Ten times? Three times? Two times? The answer is zero. The Daniel Ball never once uses the term “waters of the United States” in its opinion. The term that The Daniel Ball instead uses on four occasions is “navigable waters of the United States.” 72 The Court never suggests that the terms “navigable waters” and “waters of the United States” are synonymous. That, of course, is the ball game because it is the legal significance of Congress’s elimination of the term “navigable” that is at issue in Sackett . Unlike the Clean Water Act, The Daniel Ball never eliminates the term.

Similarly misleading is the concurrence’s argument that the several Rivers and Harbors Acts enacted by Congress in the 1890s used the terms “navigable waters” and “waters of the United States” interchangeably. In almost every instance, those Acts do not use the term “waters of the United States” without a proximate reference to “navigable.”

For instance, Section 13 of the Rivers and Harbors Act of 1899, 73 known as the “Refuse Act,” 74 is understood as the statutory precursor to the Clean Water Act because it extended the earlier enactments by barring the unpermitted deposit or discharge of refuse either directly into or on the banks of any “navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such watershed.” 75 Prior to passage of the Clean Water Act in 1972, the Corps successfully invoked Section 13 to challenge discharges of pollution into navigable waters without regard to whether the pollution impeded navigability. 76 One of the 1899 law’s major limitations, however, was that it applied only to any “navigable water,” and its “tributaries” and “banks,” which is of course precisely why Congress declined to rely exclusively on that term in the 1972 Clean Water Act and took the additional step of defining “navigable waters” more expansively to mean “waters of the United States.” 77 The Refuse Act never uses the term “waters of the United States,” so the Act cannot be plausibly characterized as using “navigable waters” and “waters of the United States” interchangeably.

The 1899 law as a whole, moreover, never once uses the distinct term “waters of the United States” without the navigable modifier. The closest that the 1899 Act gets is in a distinct section, Section 10, which prohibits “the creation of any obstruction . . . to the navigable capacity of any of the waters of the United States” or the building of any “wharf, pier . . . or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines . . . .” 78 In both of those Section 10 clauses, Congress expressly includes the navigable requirement.

The Rivers and Harbors Acts of 1890 and 1894 are no different. The former refers in Section 10 to the “ navigable capacity of any waters, in respect of which the United States has jurisdiction.” 79 And the latter refers in Section 5 to “navigable rivers and other waters of the United States,” and in Section 6 to “any of its navigable waters.” 80 However, here again, the “navigable” qualifier is tenaciously proximate. 81

That is a far cry from what Congress did in the 1972 Clean Water Act. As described by the Court in Riverside Bayview in 1985: “Congress chose to define the waters covered by the Act broadly,” and to “make[ ] it clear that the term ‘navigable’ is of limited import.” 82 That same unanimous 1985 opinion flatly contradicts the ahistorical claim of Justices Thomas and Gorsuch in Sackett that Congress did not intend in the 1972 Clean Water Act to extend its jurisdiction beyond the nineteenth century’s limited conception of congressional Commerce Clause authority over navigable waters. According to all nine Justices in Riverside Bayview , by defining “navigable waters” as “waters of the United States” in the Clean Water Act, “Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term.” 83

In short, the entire premise is missing for the Thomas concurrence’s claim than the Clean Water Act of 1972 does no more than the congressional enactments of the 1890s, which were designed to protect only the navigable capacity of traditional navigable waters. The Court and Congress in the nineteenth century did not use the terms “navigable waters” and “waters of the United States” interchangeably and synonymously. Because that premise is not true, the argument in the concurring opinion collapses. 84

The best explanation for the Sackett majority opinion is unfortunately the distasteful one that the Justices in the majority simply do not like the Clean Water Act as a matter of policy. That would certainly explain why the Court granted review in the case when it clearly did not have to do so. After all, the federal government had long ago informed the Sackett family that it would no longer enforce its administrative compliance order, meaning that the Sacketts were free to build on their property even if the Ninth Circuit held that the case was not legally moot. 85

The majority’s disdain for one of the nation’s most successful and important environmental protection laws was not subtle. While acknowledging with little masked irony that “the Act has been a great success,” 86 the majority referred to the Clean Water Act as a “potent weapon” with “‘crushing’ consequences” 87 “even for inadvertent violations.” 88 According to the majority, “the permitting process can be arduous, expensive, and long.” 89

According to Justices Thomas and Gorsuch, relying on Justice Scalia’s hyperbole in Rapanos, the federal government is asserting Clean Water Act jurisdiction over anything “wet” and “virtually any parcel of land containing a channel or conduit . . . through which rainwater or drainage may occasionally or intermittently flow.” 90 The federal government’s definition of the Act, the concurrence argues, would “‘engulf[] entire cities and immense arid wastelands’ alike.” 91 If the government’s view were upheld, “the only prudent move for any landowner in America would be to ask the Federal Government for permission before undertaking any kind of development.” 92

Why then, as the two Justices suggest should happen, have landowners over the past fifty years prior to Sackett not engaged in such a rush for a federal permit for any kind of development on their land? Why haven’t “entire cities” and “immense arid wastelands” been buried by landowner requests for thousands of Clean Water Act development permits? 93 The answer is easy: because the concurrence’s characterization of the federal government’s administration of the Clean Water Act is utter nonsense. Justices Thomas and Gorsuch’s rhetoric, like the majority’s own, is the stuff of an undisciplined political campaign rally and not the kind of serious, thoughtful, careful, and rigorous legal analysis expected of Supreme Court Justices.

What is most unsettling about this rhetoric, however, is the nakedness of the majority’s criticism of the Clean Water Act on substantive policy grounds. Given, moreover, the weakness of the legal arguments advanced by the majority and even more so by Justices Thomas and Gorsuch, the conclusion that the Justices are acting like legislators and not like Supreme Court Justices is irresistible.

The five Justices in the majority are of course entitled to have their own policy preferences. They can freely express their views that the Clean Water Act should be amended to avoid federal regulation of water pollution that they believe would be better left to states or not regulated at all. But here is the rub. When Justices are voting their policy preferences in this manner, they cannot impose their will by merely five votes out of nine. They are instead five votes out of 154.6 million, the number of voters who voted their own policy preferences in the most recent 2020 presidential election. 94 The Justices can vote for the President of the United States that they believe should be in the White House. They can vote for their favored candidates for the U.S. Congress, governors, state legislatures, and local government leaders.

What they cannot do, however, is what five Justices did in Sackett v. EPA : destroy the Clean Water Act’s effectiveness in defiance of clear congressional intent supported by outsized bipartisan majorities in 1972 and 1977, and as recognized by virtually every presidential administration, 95 whether Democratic or Republican, during the past half-century. That is out of bounds. 96

Richard J. Lazarus is the Howard J. and Katherine W. Aibel Professor of Law at Harvard Law School.

• 1 33 U.S.C. §§ 1251–1387.
• 2 David E. Rosenbaum, Congress Votes $24-Billion Bill to End Water Pollution by 1985, N.Y. Times, Oct. 4, 1972, at A24.
• 4 John W. Finney, Congress Quits After Overriding Water Bill Veto, N.Y. Times, Oct. 18, 1972, at A1.
• 5 33 U.S.C. § 1251(a).
• 6 143 S. Ct. 1322 (2023).
• 7 33 U.S.C. § 1362.
• 8 In the years immediately following the Clean Water Act’s enactment in 1972, the Army Corps of Engineers and EPA initially adopted very different interpretations of the Act’s jurisdiction. The Corps concluded that “waters of the United States” referred to no more than a slightly expanded version of the 1870 The Daniel Ball ’s definition of “navigable waters.” See generally The Daniel Ball , 77 U.S. (10 Wall.) 557 (1870). Ultimately, several district courts rejected the Corps’ view in favor of EPA’s contrastingly expansive view that Congress had intended to exercise its full Commerce Clause authority to extend to pollution of all waters affecting interstate commerce. The Corps and EPA have since been in agreement. See Sackett , 143 S. Ct at 1354–55 (Thomas, J., concurring). 
• 9 77 U.S. (10 Wall.) 557 (1870).
• 10 474 U.S. 121 (1985). In Riverside Bayview , the Court unanimously upheld the Corps’ assertion of Clean Water Act jurisdiction over a wetland that was not itself navigable but that was in close physical proximity to a navigable water body.
• 11 531 U.S. 159 (2001). In Solid Waste Agency, the Court rejected the Corps’ assertion of Clean Water Act jurisdiction over ponds in an abandoned gravel pit, rejecting the Corps’ reliance on its Migratory Bird Rule, which purportedly based jurisdiction on the presence of migratory birds.
• 12 547 U.S. 715 (2006). In Rapanos , the Court rejected the Corps’ assertion of jurisdiction over four wetlands, but without a majority opinion for why. Justice Antonin Scalia authored the plurality opinion that rejected jurisdiction on sweeping grounds based on a dictionary definition of the meaning of the word “waters,” which excluded the four wetlands at issue. Id. at 731–58. However, Justice Anthony Kennedy supplied the controlling vote in favor of the judgment of reversal, and his reasons were far narrower than those of the plurality. Justice Kennedy’s concurrence contended that any waters that EPA and the Corps could demonstrate possessed a “significant nexus” to traditional navigable waters would fall within the Clean Water Act’s reach, even potentially the four wetlands at issue in Rapanos on remand. Id. at 759–87.
• 13 See Department of the Army Corps of Engineers and Environmental Protection Agencies, Revised Definition of ‘Waters of the United States’, 88 Fed. Reg. 3,004, 3,011–19 (2023) (summarizing the history of the agencies’ interpretation of “waters of the United States”).
• 14 See note 12, supra.
• 15 Sackett , 143 S. Ct. at 1342 (majority opinion); id. at 1362, 1369 (Kavanaugh, J., concurring, joined by Sotomayor, Kagan, & Jackson, J.J.).
• 16 Id. at 1336 (quoting Rapanos , 547 U.S. at 739 (quoting Webster’s New International Dictionary 2882 (2d ed. 1954) (original alterations omitted))).
• 17 Id. at 1339.
• 18 Rapanos , 547 U.S. at 739 (plurality opinion).
• 19 It is too soon after the Sackett ruling to assess the precise number of waters now excluded from Clean Water Act coverage. The estimates in the text, however, are fairly based on an internal analysis conducted by EPA experts in 2017, when considering the impact of the agency’s adoption of the Rapanos jurisdictional test, which is what the Court has now done six years later in Sackett . The content of these communications was made available apparently pursuant to a Freedom of Information Act request and the related documents are available from the author. See E-mail from John Goodin, U.S. Environmental Protection Agency, to Stacey Jenson, U.S. Army Corps of Engineers (Sept. 4, 2017, 6:08 pm) (including graph pie chart “Breakdown of Flow Regimes in NHD Streams Nationwide” indicating percentage of “ephemeral” and “intermittent” streams).
• 20 Sackett , 143 S. Ct. at 1339.
• 21 See Goodin email, supra note19 (“The proposed option of defining ‘continuous surface connection’ as directly touching a waters of the U.S. may result in about 51% of NWI-mapped potential wetland acreage not being considered adjacent.”).
• 22 See Brief Amicus Curiae of Scientific Societies in Support of Respondents, Sackett , No. 21-454, at *24 (citing Roger Meyer & Andrew Robertson, Clean Water Rule Spatial Analysis: A GIS-Based Scenario Model for Comparative Analysis of the Potential Spatial Extent of Jurisdictional and Non-Jurisdictional Wetlands, https://perma.cc/EL7H-MH5G).
• 25 140 S. Ct. 1462, 1475 (2020) (quoting Rapanos , 547 U.S. at 743).

Though we do not decide this issue, there is no reason to suppose that our construction today significantly affects the enforcement of § 1342, inasmuch as lower courts applying § 1342 have not characterized intermittent channels as “waters of the United States.” The Act does not forbid the “addition of any pollutant directly to navigable waters from any point source,” but rather the “addition of any pollutant to navigable waters.” § 1362(12)(A) (emphasis added); § 1311(a). Thus, from the time of the CWA’s enactment, lower courts have held that the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates § 1311(a), even if the pollutants discharged from a point source do not emit “directly into” covered waters, but pass “through conveyances” in between.

• 27 33 U.S.C. § 1251(a).
• 28 Sackett , 143 S. Ct. at 1344.
• 29 Id. at 1344–45.
• 30 Id. at 1350, quoting The Daniel Ball , 77 U.S. (10 Wall.) at 563.
• 31 Id. at 1351 (citing Economy Light & Power Co. v. United States , 256 U.S. 113, 123­–24 (1921)).
• 32 Id . (citing United States. v. Appalachian Elec. Power Co., 311 U.S. 377, 408–09 (1940)).
• 33 Id. at 1353 (describing “the expanded Daniel Ball test”).
• 34 143 S. Ct. at 1346 (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 78 (1824)).
• 36 Id. at 1349 (“Consistent with that backdrop, the term ‘navigable waters’—used interchangeably with ‘waters of the United States’ and ‘navigable waters of the United States’—referred to the waters subject to Congress’ traditional authority over navigable waters until the enactment of the CWA.”) (Thomas, J., concurring).
• 37 Id. at 1352.
• 38 Id. at 1346–47.
• 39 Sackett , 143 S. Ct. at 1345.
• 40 Id. at 1354 (emphasis added).
• 42 Id. at 1353 (citing United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1323–29 (6th Cir. 1974); P. F. Z. Properties, Inc. v. Train, 393 F. Supp. 1370, 1381 (D.D.C. 1975); Nat. Res. Def. Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975); United States v. Holland, 373 F. Supp. 665, 669, 672–74 (M.D. Fla. 1974)).
• 43 Sackett , 143 S. Ct. at 1345.
• 44 Id. at 1359.
• 45 Id. at 1362 (Kavanaugh, J., concurring, joined by Sotomayor, Kagan, & Jackson, J.J.).
• 46 Rapanos, 547 U.S. at 787–810.
• 47 Id. at 801.
• 48 Id. at 788–92, 796, 809.
• 49 See Sackett , 143 S. Ct at 1359–62 (Kagan, J., concurring); id. at 1362–69 (Kavanaugh, J., concurring).
• 50 Id. at 1336–37 (quoting Webster’s New International Dictionary 2882 (2d ed. 1954)).
• 51 Rapanos , 547 U.S. at 801.
• 52 See S. Rep. No. 92-1236, at 144 (1972) (Conf. Rep.); S. Rep. No. 92‑414, at 77 (1972).
• 53 H.R. 11896, 92d Cong. (introduced Nov. 19, 1971).
• 54 Leslie Salt Co. v. Froehlke, 578 F.2d 742, 754 n.15 (9th Cir. 1978) (quoting S. Rep. No. 92-1236, at 144 (1972) (Conf. Rep.)).
• 55 See generally Riverside Bayview , 474 U.S 121.
• 56 Id. at 462 (quoting S. Rep. No. 92-414, at 77 (1972)).
• 58 Sackett , 143 S. Ct. at 1341.
• 60 140 S. Ct 1837 (2020).
• 61 Id. at 1841.
• 62 See, e.g. , United States v. U.S. Gypsum Co., 438 U.S. 422, 437 (1978) (quoting Rewis v. United States, 401 U.S. 808, 812 (1971)) (referring to “the common-law tradition” and “the general injunction that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity’”).
• 63 See 33 U.S.C. § 1319(c)(1) (negligent violations punishable as misdemeanors); § 1319(c)(2) (knowing violations punishable as felonies); §1319(c)(3) (knowing endangerment violations punishable as more serious felonies).
• 64 U.S. Gypsum Co. , 438 U.S. at 437.
• 65 515 U.S. 687 (1995).
• 66 Id. at 704 n.18.
• 68 Sackett ,143 S. Ct. at 1352.
• 69 See text accompanying notes 36–44, supra.
• 70 See text accompanying notes 36–44, supra.
• 71 143 S. Ct. at 1354.
• 72 The Daniel Ball , 77 U.S. (10 Wall.) at 563–64, 566.
• 73 30 Stat. 1152.
• 74 See, e.g. , City of Milwaukee v. Illinois, 451 U.S. 304, 329–30 (1981) (referring to Section 13 of the Rivers and Harbors Act of 1899 as the “Refuse Act”).
• 75 30 Stat. 1152; see Robert Percival, Allan Miller, Christopher Schroeder & James P. Leape, Environmental Regulation: Law, Science, and Policy 582–84 (9th ed. 2021) (describing the history of the Refuse Act).
• 76 See, e.g. , United States v. Republic Steel Corp., 362 U.S. 482 (1960); United States v. Standard Oil Co., 384 U.S. 224 (1966).
• 77 30 Stat. 1152.
• 78 30 Stat. 1151.
• 79 26 Stat. 454.
• 80 28 Stat. 362–63.
• 81 The only arguable exception is found in Section 6 of the Rivers and Harbors Act of 1864 reference to “in the waters of any harbor or river of the United States.” 28 Stat. 363. But it takes more than a Herculean leap to seize that one statement as evidence that Congress intended in 1972 to equate “navigable waters” as “waters of the United States.”
• 82 Riverside Bayview , 474 U.S. at 133.
• 84 The Thomas/Gorsuch historical argument appears to be largely cribbed from a legal publication to which the concurrence cites six times, whose authors at the time of the article’s publication were attorneys for a leading law firm representing industry in Clean Water Act litigation. See Sackett , 143 S. Ct. at 1347 (citing V. Albrecht & S. Nickelsburg, Could SWANCC Be Right? A New Look at the Legislative History of the Clean Water Act , 32 Env. L. Rev. 11042, 11044 (2002)); id. at 1354 n.7 (citing the aforementioned article three times); id. at 1355 n.8 (quoting the aforementioned article once); id at 1356 (quoting the aforementioned article once). That same law firm filed a brief in support of industry interests in the Sackett case on behalf of the U.S. Chamber of Commerce. See Brief Amicus Curiae of the Chamber of Commerce of the United States in Support of Petitioners, Sackett, No. 21-454. The concurrence, moreover, miscites the publication, which was not in the “Env. L. Rev.” but in the “News & Analysis” section of volume 32 of the Environmental Law Institute’s “Environmental Law Reporter” (Envtl. L. Rep.). The absence of correction prior to the opinion’s publication may suggest a lack of close attention to the article by chambers.
• 85 See Brief for Respondents in Opp’n, Sackett , No. 21-454, at *7.
• 86 Sackett , 143 S. Ct. at 1329.
• 87 Id. at 1330 (quoting Army Corps of Engineers v. Hawkes Co., 578 U.S. 590, 602 (2016) (Kennedy, J., concurring)).
• 88 Id. (quoting Hawkes Co. , 578 U.S. at 602 (Kennedy, J., concurring)).
• 89 Id. at 1331 (quoting Hawkes Co. , 578 U.S. at 594–95, 601).
• 90 Id. at 1356–57, (quoting Rapanos, 547 U.S. at 722 (plurality opinion by Scalia, J.)).
• 91 Id. at 1357 (quoting Rapanos, 547 U.S. at 722 (plurality opinion by Scalia, J.)).
• 94 United States Census Bureau, Census Bureau Releases 2020 Presidential Election Voting Report (Feb. 17, 2022), https://perma.cc/JQA8-PHSB .
• 95 The notable exception is the Trump administration’s “Navigable Waters Protection Rule,” published in April 2020 (85 Fed. Reg. 22,250 (2020)), which embraced much of Justice Scalia’s Rapanos plurality ( see id. at 22,277, 22,279–80). But as Justice Kavanaugh pointed out, even the Trump rule did not go as far as the Sackett majority in limiting the meaning of “adjacent wetlands.” Sackett , 143 S. Ct. at 1362, 1365 (Kavanaugh, J., concurring) (describing how under the Trump rule, unlike the Sackett majority, “adjacent wetlands included wetlands that are ‘physically separated’ from certain covered waters” (quoting 85 Fed. Reg. 22,340)). Soon after the Trump rule’s promulgation, moreover, a federal district court vacated the rule, based on the “seriousness of the Agencies’ errors in enacting” the rule. Pasqua Yaqui Tribe v. EPA, 557 F. Supp. 3d 949, 956 (D. Ariz. 2021).
• 96 In the last opinion that the Court decided before recessing this past summer, Chief Justice John Roberts warned against Justices in their dissenting opinions criticizing Court “decisions with which they disagree as going beyond the proper role of the judiciary.” Biden v. Nebraska, No. 22-506, at 25 (June 30, 2023). The Chief worries that mistaking “plainly heartfelt disagreement for disparagement” may mislead the public in a way “harmful to this institution and our country.” Id. at 26. I agree and share his worry that much public discourse and criticism of the Court is misdirected and expresses mostly policy disagreements with the outcomes rather than any serious grappling with the challenging legal issues actually before the Court. There are nonetheless, though far less often, still extreme rulings and concurring opinions in the mix that warrant being called out. Unfortunately, Sackett is such a case, especially the concurring opinion of Justices Thomas and Gorsuch, which should not go unanswered.

• < Previous

Home > Graduate Theses, Dissertations, and Problem Reports > 11383

Graduate Theses, Dissertations, and Problem Reports

Essays on clean water act and safe drinking water act.

Sharaban Tahura Anica , West Virginia University Follow

Date of Graduation

Document type.

Dissertation

Degree Type

Davis College of Agriculture, Natural Resources and Design

Division of Resource Economics & Management

Committee Chair

Levan Elbakidze

Committee Co-Chair

Alan Collins

Committee Member

Suhyun Jung

Jason Hubbart

This dissertation empirically examines three issues related to CWA and SDWA: 1) Financial Assistance and Environmental Compliance; 2) Financial Assistance Priorities from the Clean Water State Revolving Fund; and 3) Drinking Water Compliance during COVID-19 Pandemic.

Using the National Pollution Discharge Elimination System compliance and the Clean Water State Revolving Funds (CWSRF) data for wastewater treatment plants in nine states between 2010 and 2018, chapter 2 examines a) the effect of non-compliance on the distribution and size of awarded CWSRF loans, and b) the effects of the CWSRF provision and award size on post-funding compliance. Funded facilities are found to have poorer compliance records than the unfunded ones and that funded facilities decrease violations within two years after receiving financial support. On average, a $50 million CWSRF loan decreases violations by one count within two post-funding years.

Adequate investment in wastewater infrastructure remains a critical challenge for environmental protection in the US. In Chapter 3, I examine states’ prioritization of investment in wastewater treatment facilities using the Clean Water State Revolving Funds (CWSRF) allocation and wastewater treatment plant data from 2010 to 2019 from nine states. Discrepancies and consistencies between regulators’ stated and revealed funding priorities are documented based on the records of intended and observed allocation of CWSRF support. I find that states intend to and provide CWSRF assistance to wastewater treatment plants with poorer Clean Water Act compliance records in previous years. I also find that larger facilities are prioritized in intended as well as observed allocation of assistance. Although impairment of discharge receiving streams is not a significant factor in assistance distribution plans, the observed allocation of funds is positively correlated with receiving stream’s impairment. Poorer communities are prioritized in intended as well as observed assistance allocation. However, income-based prioritization is weaker in states with greater corruption.

According to the USEPA, the COVID-19 pandemic adversely affected water systems’ operations due to supply chain disruptions, water workforce staffing shortages, financial effects, and operational difficulties. Such challenges for drinking water systems functioning need to be analyzed to ensure current and future public health safety. In Chapter 4, I empirically examine SDWA violations to identify environmental regulatory risks emerging from COVID-19 pandemic. Using annual data from 2011 to 2020 for all 50 states, I observe that counties with more COVID cases experience decreased facility level SDWA health-based violations relative to the counties with fewer COVID cases. Also, the reported number of health-based drinking water violations decreased after February 2020 when the pandemic hit US. The decrease in health-based violations can be a result of weakened monitoring or reporting (M&R) activities. SDWA monitoring and reporting violations deceased with growth in the number of COVID cases.

Using mediation analysis, I observe that the direct effect of COVID on health-based drinking water violations vanishes once I account for M&R violations as one of the regressors for health-based violations. Thus, I conclude that COVID-19 had no direct effect on health-based violations but did weaken monitoring and reporting activities. Staff and equipment shortages, limited access to sample collection locations, and EPA's temporary enforcement discretion policy for regular monitoring activities are some of the possible channels that could have affected M&R activities during the pandemic. On the other hand, staffing, chemical treatment, and operational budget shortage can also increase the number of health-based violations. However, in the presence of degraded M&R activities, such health-based violations can remain undetected. Our negative and significant estimate of the effect of the number of COVID cases on health-based violations supports such possibility. We observe a positive and significant effect of COVID cases on M&R violations, which explains the decrease in health violations when COVID cases increase.

Recommended Citation

Anica, Sharaban Tahura, "Essays on Clean Water Act and Safe Drinking Water Act" (2022). Graduate Theses, Dissertations, and Problem Reports . 11383. https://researchrepository.wvu.edu/etd/11383

Since August 17, 2022

Included in

Natural Resource Economics Commons , Natural Resources Management and Policy Commons

https://www.doi.org/10.33915/etd.11383

• Collections
• Disciplines
• WVU Libraries
• WVU Research Office
• WVU Research Commons
• Open Access @ WVU
• Digital Publishing Institute

Advanced Search

• Notify me via email or RSS

Author Corner

• Submit Research

Home | About | FAQ | My Account | Accessibility Statement

Privacy Copyright

• Share full article

Advertisement

Supported by

A Clear, Clean Water Act

Clean water policy is in a terrible muddle, and the country has the Supreme Court to thank for it.

The 1972 Clean Water Act was written to protect all the waters and wetlands of the United States. Two unfortunate Supreme Court decisions narrowed its scope, weakened its safeguards and thoroughly confused the federal agencies responsible for enforcing it. As a result, thousands of miles of streams and millions of acres of wetlands have been exposed to development.

The remedy lies in a Senate bill called the Clean Water Restoration Act, which would reassert the broad reach of the 1972 law. Similar legislation has been languishing for years, and if this version has any hope, it will need a strong push from the White House.

The good news is that Lisa Jackson, President Obama’s new head of the Environmental Protection Agency, cares about clean water issues and isn’t afraid of a fight. She has already moved to restrict pollution from coal mining operations in Appalachia and is promising to crack down on polluted runoff from animal feedlots.

Without endorsing any particular bill, Ms. Jackson agreed last week that the system that has long protected America’s waterways from unregulated development and pollution is paralyzed — and will remain paralyzed unless Congress fixes it. An internal E.P.A. report furnished to Congress last year revealed that the agency had dropped or delayed more than 400 cases involving suspected violations of the law — nearly half the agency’s entire docket. The reason in every instance was that regulators did not know whether the streams and wetlands in question were covered by the law.

Until the two Supreme Court rulings, the Clean Water Act had been broadly interpreted by courts and by federal regulators to shield all the waters of the United States — seasonal streams and remote wetlands as well as large navigable rivers and lakes — from pollution and unregulated development. The assumption was that even the smallest waters have some hydrological connection to larger watersheds and therefore deserve protection. The Supreme Court, however, exploiting ambiguities in the law, effectively decreed that only navigable, permanent water bodies deserve protection.

As a result, at least 20 million acres of wetlands and as much as 60 percent of the nation’s small streams have been left unprotected, while effectively shutting down enforcement actions against developers who have been disturbing or plan to disturb these waters without a permit.

The Clean Water Restoration Act would establish, once and for all, that federal protections apply to all waters, as Congress intended in 1972. Now a new Congress and a new White House must ensure that it becomes law.

We use cookies to enhance our website for you. Proceed if you agree to this policy or learn more about it.

• Essay Database >
• Essays Examples >
• Essay Topics

Essays on Clean Water Act

6 samples on this topic

To some students, crafting Clean Water Act papers comes easy; others need the help of various types. The WowEssays.com collection includes professionally crafted sample essays on Clean Water Act and relevant issues. Most definitely, among all those Clean Water Act essay examples, you will find a piece that conforms with what you imagine as a worthy paper. You can be sure that literally every Clean Water Act piece showcased here can be used as a bright example to follow in terms of overall structure and composing different parts of a paper – introduction, main body, or conclusion.

If, however, you have a hard time coming up with a solid Clean Water Act essay or don't have even a minute of extra time to browse our sample collection, our free essay writer service can still be of great help to you. The matter is, our experts can tailor a model Clean Water Act paper to your individual needs and specific requirements within the pre-set interval. Buy college essays today!

A-Level Essay On Environmental Problem – Groundwater Pollution In Texas Due To Fracking For Free Use

Outlines for creating newspaper articles from press releases: free sample essay to follow.

Event 1: Delaware Burger Battle.

Event details: The Kenny Family Foundation is hosting the Delaware Burger Battle. 20 restaurants are participating. Event will be held at Twin Lakes Brewery in Greenville. The restaurants will have to serve burgers to critics and the eating public.

Awards: Critic’s Choice Winner, People’s Choice Winner and Best Alternative Burger

Significant participants: Defending champion Redfire Grill + Steakhouse (Hockessin). James Beard nominee Jay Caputo of Rose & Crown (Lewes). Bryan Sikora of La Fia in Wilmington.

Local significance: an informal tradition over the years, marking the last weekend of summer before the new school year.

Main sponsor: The Kenny Family Foundation is sponsoring the event for the second year running. Proceeds go to Ministry of Caring’s Emmanuel Dining Room.

Cost of ticket : $45 for booking ahead, $55 on day of event. Teenagers $15, other children $5

Geology: Water Shortage In The United States Of America. Essay Sample

275 words = 1 page double-spaced

Password recovery email has been sent to [email protected]

Use your new password to log in

You are not register!

By clicking Register, you agree to our Terms of Service and that you have read our Privacy Policy .

Now you can download documents directly to your device!

Check your email! An email with your password has already been sent to you! Now you can download documents directly to your device.

or Use the QR code to Save this Paper to Your Phone

The sample is NOT original!

Short on a deadline?

Don't waste time. Get help with 11% off using code - GETWOWED

No, thanks! I'm fine with missing my deadline

Essays on Clean Water Act

We found 2 free papers on clean water act, essay examples, united states vs. iverson.

Clean Water Act

United States

CH2O is a company that blends chemicals to create products such as acid cleaners, and then ships the blended chemicals in drums to the customers. After the drums containing the chemicals reaches the customer, CH2O asked that the customer returned the drums to be reused. Once the drums were returned, the company cleaned the drums…

Research Paper on Water Pollution

Water is an extremely important natural resource, making up more than 70% of the Earth’s surface. It plays a vital role in supporting life and promoting growth. The human body contains significant quantities of water, ranging from 50-80%, with high proportions found in blood, muscles, and the brain. In fact, approximately 95% of the brain…

Frequently Asked Questions about Clean Water Act

Don't hesitate to contact us. We are ready to help you 24/7

Hi, my name is Amy 👋

In case you can't find a relevant example, our professional writers are ready to help you write a unique paper. Just talk to our smart assistant Amy and she'll connect you with the best match.

Clean Water Act Essays

Environmental laws and regulations, popular essay topics.

• American Dream
• Artificial Intelligence
• Black Lives Matter
• Bullying Essay
• Career Goals Essay
• Causes of the Civil War
• Child Abusing
• Civil Rights Movement
• Community Service
• Cultural Identity
• Cyber Bullying
• Death Penalty
• Depression Essay
• Domestic Violence
• Freedom of Speech
• Global Warming
• Gun Control
• Human Trafficking
• I Believe Essay
• Immigration
• Importance of Education
• Israel and Palestine Conflict
• Leadership Essay
• Legalizing Marijuanas
• Mental Health
• National Honor Society
• Police Brutality
• Pollution Essay
• Racism Essay
• Romeo and Juliet
• Same Sex Marriages
• Social Media
• The Great Gatsby
• The Yellow Wallpaper
• Time Management
• To Kill a Mockingbird
• Violent Video Games
• What Makes You Unique
• Why I Want to Be a Nurse
• Send us an e-mail