Lake Michigan shoreline, Indiana

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Kiana Courtney

Keeping our Clean Water Promise

Checking in on environmental enforcement in the Midwest on the 48th anniversary of the Clean Water Act.

The Clean Water Act is lauded as an American success story. This bedrock environmental law was passed in 1972 on a bipartisan basis, and it has turned the tide on pollution to make our lakes, rivers, and streams more fishable, swimmable, and drinkable. Unfortunately, our leaders have strayed from that mission over the past few years, by cutting resources needed to enforce the law. The Environmental Law & Policy Center released two reports this year that showed declining resources led to a decline in Clean Water Act (CWA) enforcement and a rise in significant noncompliance in the Midwest. On the 48th anniversary of the CWA, we are reminded of its importance, its potential, and the role we can play in protecting clean water for communities.

Cleaning Up Midwestern Water

In many ways, the Clean Water Act was borne of the Midwest. Home to famous waterways like the Great Lakes and the Mississippi, the Midwest is also a hub of industry, transportation, and a rust-belt legacy of pollution. After Ohio’s Cuyahoga River caught fire in 1969, the public outrage contributed to a national reckoning that would result in the U.S. Environmental Protection Agency (EPA), the Clean Air Act, and the Clean Water Act (CWA) by 1972.

Under the CWA, a polluting facility is required to get a permit, to limit pollution, and to regularly report how well it’s following the rules. The EPA works with state-level environmental agencies to monitor and enforce the law by doing investigations, charging penalties, and requiring pollution controls. If needed, citizens can also step up to enforce the CWA and file suit against private entities or the EPA. The CWA is not perfect, but it has been transformational.

In March of 2019, officials declared that fish from the Cuyahoga River were safe to eat. Fifty years after that famous fire, this announcement marked a major milestone for one of the nation’s historically most polluted waterways. But the CWA can only work if it is enforced. If we slow-walk progress or stop being vigilant, we could be right back where we started, risking the health and safety of our communities and our environment. Without a strong expectation of environmental law enforcement, facilities are more likely to violate the law and pollute our waterways without accountability.

Troubling trends put our water at risk

Despite decades of bipartisan agreement on the value of environmental regulation and enforcement, recent federal Republican leadership has been slashing EPA’s resources for years. For much of the Obama administration, the Republican-led Congress cut EPA’s budget. Candidate Trump vowed to “get rid of it in almost every form,” and the cuts have continued under his administration while EPA also began spending even less than Congress appropriated for enforcement. It has left states to hold the bag for enforcement—that is not going to protect our environment.

ELPC reviewed and analyzed publicly available enforcement and compliance data to see how shrinking resources might be affecting the Midwest. Our first report, released March 2020, examined CWA enforcement in EPA’s Region 5 office, which covers Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin, and 35 Native American tribal communities. The second report, released this month, found similar results in EPA’s Region 7 office, which covers Iowa, Nebraska, Missouri, Kansas, and nine Native American Tribes.

We found that shrinking funds and plummeting staff levels since 2012 have led to a decline in enforcement case initiations. As my colleague Jeff Hammons put it, “EPA personnel are enforcing the Clean Water Act with one arm tied behind their back.” We also found a drop in penalties and compliance costs over the course of this administration. A minor slap on the wrist offers little deterrence for facilities that might violate the law in the future. Penalties and compliance costs for bad actors should be higher than just the cost of doing business.

A decline in enforcement might make sense if the data showed more facilities complying with the law. Unfortunately, however, the data illustrates a corresponding rise in significant noncompliance with the Clean Water Act in recent years in both Regions 5 and 7. That means polluters are dumping toxins in our water and getting away with it. Our reports featured several examples of facilities with multiple permit violations facing no formal enforcement, including a waste facility in Ohio, an abandoned mine in Missouri, and a food processing facility in Iowa. These facilities harm major waterways like Lake Erie and the Mississippi, which support ecosystems and supply drinking water to millions.

What can we do to support the Clean Water Act?

The EPA should refocus on its critical mission of upholding the rule of law and ensuring tough-but-fair enforcement of the Clean Water Act. It must improve environmental law enforcement and compliance activities, hire and retain adequate staff, and use the full amount of funds appropriated by Congress. Congress should also increase funding to EPA and local environmental protection agencies, to make sure the agency has sufficient resources and capacity to stop pollution and protect our communities.

Concerned community members should contact their members of Congress, tribal leaders, and state officials to demand adequate funding and support for environmental law enforcement. Both now and after the election, we must hold our elected officials accountable to protect our communities and waters.

ELPC will continue to serve as a watchdog for Midwest water. We monitor state and federal enforcement activities and hold polluters accountable to protect our waters. To support our work, please donate here.

In the face of a global public health crisis, climate change, and the perpetuation of systemic racism, we know there is a lot to do—there are a multitude of ways we might tackle the challenges ahead. But America cannot progress by choosing profits over people and the environment. We must fulfill the promise of the Clean Water Act. We must build on decades of science-based policy and legal precedent. We must improve these tools to defend communities from harm, so they can heal. The Clean Water Act has claimed victories for the past 48 years, but we must continue the fight to protect America’s waters for the next 48 years and beyond.

Kiana Courtney,

Staff Attorney

Kiana Courtney is an associate attorney at ELPC, working on clean energy and natural resources protection litigation, rulemaking, and policy.

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