Why the Clean Water Act needs an update – or a new name

‘Lax regulation. threats from emerging contaminants and outdated pollution standards are among the deficiencies, experts say

October 18 was the 50th anniversary of the Clean Water Act, and a featured story in The Guardian stood in stark contrast to the celebratory mood exhibited by federal and state agency executives who gathered to honor the landmark 1972 legislation.

“More than 80% of U.S. waterways are contaminated by ‘forever chemicals,’” the headline read.

The culprit? “Lax regulation that allows industrial users to discharge the chemicals into the environment largely unchecked,” according to a recent study.

Forever chemicals like PFAS break down slowly over time, thus the name. They’re widely found in a range of common products like water-resistant clothing, personal care products, food packaging, and in the blood of humans and animals, according to the U.S. Environmental Protection Agency.  

If that wasn’t enough of a reality check to rain on the Clean Water Act parade, a report released in March by the Environmental Integrity Project said a vast number of lakes, rivers and other waterways in the U.S. “remain impaired with pollution” 50 years after the Clean Water Act was enacted. EIP is a non-profit comprised of former U.S. Environmental Protection Agency enforcement attorneys and other environment executives.  

Michigan has the 4th largest number of “impaired” lakes, reservoirs, rivers and streams assessed for water contact recreation in the U.S. – meaning they are too polluted for fishing and swimming. That’s over 90% of our waterways, according to the EIP report. 

The Great Lakes were excluded from the report due to the multiple state boundaries they border, but the report noted that many of the impaired bodies of water in the report flow to a Great Lake. And many Areas of Concern – sites contaminated with legacy toxic chemicals – remain across the basin despite decades of cleanup efforts.

The report said that the Clean Water Act’s pollution standards haven’t been updated for decades, and there has been lax enforcement of permit requirements. 

It also cited limitations in the Clean Water Act that prohibit regulation of agricultural pollution like nutrient runoff from farms that fuel algae blooms in Lake Erie and other bodies of water. 

In 2014, greater Toledo residents and some in Michigan had to rely on bottled water for three days as a toxic algae bloom threatened the city’s Lake Erie water supply and a “Do Not Drink” order was released. 

Stuck in neutral

The Clean Water Act has been “stuck in neutral” and needs an update, University of Detroit Mercy environmental law professor Nick Schroeck told Planet Detroit. As an attorney, Schroeck has been active on Clean Water Act issues, including discharge permits and rulemaking.   

“The Clean Water Act should be updated to ensure faster and regular listing of new chemicals and pollutants,” Schroeck said. He also cited the law’s seeming lack of urgency.

“Regulations have been reactive and have not kept pace with the release of new chemicals of concern into the marketplace, which eventually make their way into our waters and can cause environmental and human health problems,” Schroeck said.

Detroit has experienced flooding in recent years attributed to intense storms fueled by climate change with an aged infrastructure incapable of handling the runoff. 

Specific to Detroit and other older cities, Schroeck wants an “updated law that includes incentives or preference for green infrastructure to manage stormwater rather than doubling down on expensive gray infrastructure. Gray infrastructure is unlikely to keep pace with intensifying rain storms in a warming climate,” according to Schroeck. 

Traditional gray infrastructure includes curbs, drains and pipes and is designed to move stormwater runoff to a nearby body of water. Green infrastructure instead captures rainwater where it falls, reducing the amount of runoff and risk of flooding. 

The last significant amendment to the Clean Water Act was in 1987. 

Congresswoman Debbie Dingell’s connection to the Clean Water Act goes back to its inception when her late husband, Representative John Dingell, was instrumental in its passage. 

Responding to a Planet Detroit inquiry on the next steps for the Clean Water Act, Dingell said, “we must continue to work to establish drinking water standards and clean up our water as science continues to advance and we learn about the harmful effects of new substances all around us – including those like PFAS and hexavalent chromium.” 

The hexavalent chromium reference is to the recent threat of chemical discharge to the Huron River, which flows through parts of Dingell’s district.

Noting that southeast Michigan is heavily industrial, Dingell called for revisions to the Clean Water Act that would strengthen “provisions that hold polluters accountable, as well as proactively address emerging chemicals based on the best available science.” 

Michigan’s mixed results

Michigan has had mixed success in remediating the state’s impaired lakes, rivers and other waterways identified in the EIP report, according to Department of Environmental Great Lakes and Energy spokesperson Jeff Johnston.

“EGLE has been very successful at implementing best management practices that have shown improvements on the small scale,” he said, “but has been unsuccessful at implementing these types of practices at a watershed scale to show significant improvements to water quality.”

To improve the Clean Water Act, EGLE recommended more frequent revisions to the permitting process designed to eliminate pollution from point sources, most typically factories that discharge pollutants to a waterway. That would allow for “additional progress towards meeting the Clean Water Act’s goal of eliminating pollution,” he said.

Johnston pointed to the Biden administration’s American Rescue Plan and the Infrastructure Investment and Jobs Act funding to address environmental justice needs. 

“EGLE believes that these tools will help overburdened communities achieve compliance with Clean Water Act requirements and better address challenges facing environmental justice communities,” Johnston said.

‘Cleaner’ Water Act?

Concerning clean water and the Clean Water Act, Dearborn native, advocate and veteran policy adviser Dave Dempsey takes a more philosophical view. 

Dempsey says we’ve taken a binary approach to environmental policy. Land is either pristine or developed, and that thinking creates unrealistic expectations.  

In a recent interview, Dempsey said there is no pure pristine or wild as humans alter the environment, and the environment reciprocates. 

“Perhaps the Clean Water Act should be called the Cleaner Water Act. The water is not clean and won’t be, no matter how hard we try. We’ll be able to improve it, and setting a clean water goal is good. Still, it won’t happen as everything is a matter of compromises,” Dempsey said.


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