The Clean Water Act at 52

Given this year’s election, national politics are front of mind for many. Unfortunately, the protection of something as fundamental as water has become a political issue. There is one major piece of federal legislation—The Clean Water Act (CWA)—which just celebrated its 52^nd birthday on October 18. The Act shaped water policy in the United States and helped restore the quality of our country’s waters, but much has changed since its passage and recent court rulings have weakened its reach.

History of the Clean Water Act

The Federal Water Pollution Control Act of 1948 was the first major U.S. law to address water pollution. It provided money for research but lacked federal oversight, goals, and limits for pollutants. While it funded development of several wastewater treatment plants in the Lake Champlain Basin, raw sewage was still being dumped into the lake and water quality continued to degrade after its passage. Similar or far worse scenes played out across the country as waterways were used as depositories for industrial and human waste. Lake Erie was so polluted with contaminants in the 1950s and 1960s it was projected to become biologically dead. High levels of mercury were discharged into the Detroit River daily. Pollutants in Ohio’s Cuyahoga River caused it to catch fire on multiple occasions. The dire condition of our waterways led to growing public concern and helped spawn the environmental movement which gained momentum with Rachel Carson’s 1962 publication of Silent Spring (LCC was formed in 1963) and was further ignited by images of the Cuyahoga River in flames broadcast on televisions nationwide in 1969.  

It was clear that more controls and oversight were needed to protect and restore waterways. In 1972, the Act was amended and transformed into what we commonly know as the Clean Water Act (CWA). The CWA gave the Environmental Protection Agency (EPA) power to reduce pollution to surface waters by setting standards for water quality based on designated uses. Discharges into “waters of the United States”—or WOTUS—were banned without a permit. The law was designed to regulate “point source” pollution, or pollution that comes from a single source.

Subsequent amendments in 1977 and 1987 expanded the scope of the CWA, enhancing protections for wetlands and increasing efforts to address “non-point source” pollution, such as runoff from agricultural and urban areas. Later modifications empowered those affected by pollution to sue and provided incentives for businesses to invest in new technologies. As a broad federal Act, the CWA sets the base rules while states are generally delegated the responsibility for implementation and enforcement.

In 1990, Vermont Senators Patrick Leahy and Jim Jeffords with New York Senators Daniel Patrick Moynihan and Alfonse D’Amato introduced the Lake Champlain Special Designation Act as an amendment to the CWA to formally recognize Lake Champlain as a waterbody of national importance and provide ongoing resources for its protection. The Act required the development of a pollution prevention, control, and restoration plan to protect the future of the Lake Champlain Basin and created the Lake Champlain Basin Program to oversee its implementation. This work is ongoing and the plan must be updated every five years. The provision helps channel resources for conservation work and research throughout the Lake Chaplain Basin.  

Impacts of the Clean Water Act

The CWA has led to major nationwide improvements in water quality, including Lake Champlain. According to the EPA, 700 billion tons of pollution is diverted from our waters annually thanks to the effluent guidelines in the CWA. Many rivers and lakes previously deemed unsafe for swimming and fishing have been restored, benefiting both ecosystem and human health.

The CWA reflects the conservation concerns at the time of its passage—first regulation on industrial and wastewater point source pollution, and then rules on non-point source pollution from nutrient laden runoff with the creation of total maximum daily load rules. These concerns are still central in the fight for clean water, but the CWA does not address groundwater and newer contaminants of emerging concern: PFAS, microplastics, and pharmaceutical compounds are not regulated under the CWA and are continuing to enter our waterways.

The Clean Water Act Weakenings

Given the nature of water as flowing over and through landscapes regardless of borders, what exactly constitutes WOTUS has been contested since the Act’s passage. In 2015, the WOTUS Rule was published by the EPA and the US Army Corps of Engineers to add clarity. It expanded the CWA to provide protections for intermittent and ephemeral streams that contribute flow to specific regulated waters and display physical characteristics such as a bed, bank, and ordinary high-water mark. They also established numerical distance criteria to determine when waters and wetlands are covered under the CWA based on their proximity to regulated waters which helped safeguard more vulnerable waterbodies.

Shortly after President Trump took office in 2017, the 2015 WOTUS Rule was rescinded by executive order, and along with it the protections afforded to headwater streams and wetlands. This appeased the interests of the fossil fuel industry, mining companies, large developers, and other major polluters.

Following the trend in the Executive branch, the U.S. Supreme Court has stripped the CWA of substantial power in recent years putting wetlands at risk—despite their importance in storing water, protecting against floods, and acting as highly diverse habitats. In 2023’s Sackett v. EPA, the Court weakened the law by narrowing its scope ruling that wetlands need “continuous surface connection” to federally protected navigable waters to be protected under the CWA. This ruling is not based in science. Water flows in ways beyond what is “navigable”. In wetlands, water moves through the soil and vegetation rather than as visible surface water. Just because a wetland is separated by a road, or even by a slight rise in land, from navigable surface water, does not mean it lacks hydrological connection. By endangering wetlands, we not only put at risk these critical habitats and communities in flood hazard areas, but we also imperil the health of all waters because all water is connected.

In June 2024, the Supreme Court overturned the established “Chevron deference” in the case Loper Bright Enterprises v. Raimondo. The Chevron deference was a precedent that allowed federal agencies with scientific expertise like the EPA to interpret and enact specifics on ambiguous laws. That power now lies with Court judges, who have proven a lack of scientific literacy when it comes to water.

Although the federal bar for wetland conservation has been lowered, wetlands in the Lake Champlain basin face less risk due to strong state protections. In 2022, New York passed the Freshwater Wetlands Act, and in 2024 Vermont enacted the Flood Safety Act that strengthened pre-existing safeguards and prioritized wetland restoration in floodplains.

The CWA has played a vital role in improving the quality of U.S. waters since its inception. Its effectiveness is evident in cleaner waterways and healthier ecosystems, but recent Supreme Court decisions have introduced significant challenges to its regulatory framework. While the future of our waters on a national level hangs in the balance, LCC will continue our work of safeguarding Lake Champlain’s waters on a regional and state level and striving toward thriving aquatic ecosystems and clean, accessible water for all. If you are interested in getting more directly involved in lake advocacy, please complete LCC's Volunteer Response Form.