In 1969, I boarded a bus in the suburbs of Cleveland for a school trip with my fellow fourth graders into the center of one of the great industrial cities of the world. As we drove downhill past thriving neighborhoods and humming plants, my face was plastered to the window, in awe of the leviathan that we were rolling into. The bus took us to an area called the “Flats,” a neighborhood that traversed the Cuyahoga River, which snaked through the middle of Cleveland and delivered the lifeblood of coal, iron ore, and other resources that powered the city.

When we got out of the bus to explore some more, my classmates and I felt like we had stepped into a cloud of smoke. That morning’s fresh breeze had given way to a smelly cloak that hung heavily around us. Walking over to the river, we saw what looked like a finger painting—water that swirled with colors and emanated aromas that cut through even the smoke that surrounded us.

“The sweet smell of success,” the bus driver exclaimed.

Our class became environmentalists right then and there, even if we did not know quite what that meant. When I got home, I wrote a letter to President Nixon asking him to help protect the planet for kids. My career in some respects was set that day.

That year, the Cuyahoga caught on fire from the sparks of a passing railcar. That and other highly visible eco-catastrophes of the era created the consensus that led to the surge of environmental legislation in the 1970s. The National Environmental Policy Act, signed on New Year’s Day in 1970, envisioned a federal government that protected the environment, and a reorganization plan proposed by President Nixon later that year created the U.S. EPA. The Clean Air Act in 1970 initiated regulation of pollution befouling the air. And, especially gratifying for the kids on that class trip, the Clean Water Act was passed over a Nixon veto in 1972.

Four decades after the Clean Water Act’s passage, it’s safe to say that it has been a rousing success. Seventy species of fish swim the Cuyahoga again (ten fish in total were found when formal fish counting began in the 1980s!), and the rivers that course through our major cities are healthy and thriving. The Clean Water Act should be celebrated for what it is—a flagship environmental achievement, one of the great government success stories of our time.

But that is not the end of the story. For the act has been a victim of its own success. As our rivers get increasingly cleaner, so too are costs going higher and complaints of government overreach growing louder—and, to a certain extent, more justified. Critics highlight billions of dollars spent on tiny improvements, while new sources of pollutants flow into bodies of water almost untreated. Improvements have stalled and new stresses like toxic red tides and oxygen-destroying algae blooms have become more prevalent. To ensure that our waters remain clean for another 40 years, we need to update the Clean Water Act for a new era, one that poses different challenges than those we faced four decades ago.

A Rousing Success

The act owes its success to a feature borrowed from a nineteenth-century law designed to keep trash out of the growing country’s harbors. The Rivers and Harbors Act of 1899 prohibited the discharge of refuse into the navigable waters of the United States and their tributaries. With that statute, the act of polluting was for the first time deemed unacceptable and outlawed whether or not the refuse caused direct harm. A polluting boat captain could not claim as a defense that the harbor was fully navigable despite the refuse, or that the trash would wash away harmlessly.

Edmund Muskie, the Maine senator who championed the 1972 Clean Water Act, translated this principle into a groundbreaking “technology-based” permitting system. Discharging pollution from “point sources”—mostly wastewater plants and factories with specific discharge pipes—was prohibited unless a permit was issued. Recognizing that wastewater and industrial plants would not be able to eliminate pollution overnight, the permits required the implementation of technologies to reduce pollution with standards that became more stringent over time. Gradually, pollution would be eliminated from our waters.

Companies tried to duck the law by claiming that certain waters were so big that pollution was diluted to a harmless state. Others argued that requiring the best technology would put them out of business. Still others argued that national technology standards trampled on state rights. Yet the bill passed, with the House overriding a veto by Nixon, who worried about the bill’s cost, by an astounding 247-23.

Ever since its passage, the courts, including the Supreme Court, have held that the law is constitutional for the most part. Dischargers must comply, courts have found, or face fines, sanctions, or even closure; in addition, they have almost no defense based on the health of the receiving body of water or the cost of the regulations. (Important questions do remain, particularly the extent to which the Roberts Court views the Commerce Clause as allowing the federal government to regulate local waters.)

Forty years after its passage, the act can be credited for the profound improvements in our waters. It has bolstered public health, our agricultural system, and the economies of our river and coastal communities. These improvements can be glimpsed close to the capital. In 1965, President Lyndon Johnson called the Potomac River a “national disgrace” because of its condition as a cesspool of sewage and industrial pollution. Today, the river is one of ten locations selected for a national bass fishing tournament, at a site just downstream from one of the largest wastewater treatment plants in the world. On the economic front, the Maryland Department of Natural Resources in 2004 placed the value of the Chesapeake Bay to Maryland and Virginia at more than $1 trillion, with an annual economic benefit of $33 billion to $60 billion.

The Clean Water Act has helped restore and protect regions like the Chesapeake all across America. And yet this very success has helped breed complacency, and it risks spawning a failure that could splinter the consensus behind the law and bring to a halt the progress we’ve made in guaranteeing clean water. What happened?

Blue Plains on the Potomac: A Case Study

Let’s consider Washington’s advanced wastewater plant at Blue Plains, the largest in the world, across the Potomac from Alexandria, Virginia. Every day it treats about 300 million gallons of wastewater—about as much as would fill a professional football stadium to the rafters. Most of this water comes originally from the Potomac, which after its use by people in a 725-square-mile region surrounding Metropolitan Washington (including parts of Maryland and Virginia) is transported to Blue Plains through 1,800 miles of pipes and dozens of pump stations. Over time, as clean-water standards have tightened, Blue Plains has removed an ever-larger percentage of pollutants before discharging the water back into the Potomac. But as the standards have grown more stringent, the costs have gone up exponentially while the benefits have gradually diminished.

Take nutrients. These may sound healthy, but nutrients are actually the byproduct of the food and waste we flush down our toilets and sinks. Nutrients also come from animal waste, leaves, and other organic refuse that wash off our streets. If too many of them flow into our rivers, they function just like fertilizer on our lawns. Algae and other plants thrive and die—a lifecycle that absorbs oxygen—and other organisms, including fish, oysters, and many other species, literally choke from the lack of oxygen in the water.

The nutrients of concern at Blue Plains are nitrogen and phosphorus. In 2000, Blue Plains completed its first phase of nitrogen removal, and by adopting the best technology under the act reduced the concentration of nitrogen in its effluent (or the discharge from the facility) from 14 milligrams per liter to 7.5 mg/l. That removed 7.3 million pounds of nitrogen per year from the plant’s discharge. The cost for Blue Plains? Little more than $16 million—a relative bargain. This reduction allowed the District of Columbia to meet the Chesapeake Bay Agreement goal of a 40-percent reduction of nitrogen—the only jurisdiction in the Chesapeake watershed to do so. In the next phase, which ended in 2010, nitrogen concentrations were reduced from 7.5 mg/l to 5 mg/l, which amounted to a further reduction of 2.9 million pounds per year. But this second-phase reduction cost about $130 million—about eight times the original, larger reduction.

In 2010 the permit ratcheted down again, mandating that the facility meet an even lower target by 2015. Now Blue Plains is required to further reduce the nutrients from 5 mg/l to 4 mg/l, or an additional reduction of 1.2 million pounds per year. This further incremental reduction will cost $1 billion. That is not a typo: The incremental reduction is now for one more milligram per liter—one-tenth the improvements made to date—and the projected cost for this reduction is $1 billion.

To recap: Going from 14 mg/l to 7.5 mg/l, a reduction of 7.3 million pounds a year, cost $16 million; going from 7.5 mg/l to 5 mg/l, a further reduction of 2.9 million pounds a year, cost $130 million; and going from 5 mg/l to 4 mg/l, a still further reduction of 1.2 million pounds a year, will cost $1 billion. The capital cost of infrastructure to remove one pound of nitrogen has increased about 380 times, and in the last iteration alone, we achieve one-sixth the nutrient reduction for 60 times the unit cost of the first incremental reduction.

Compounding the reality of exploding costs and diminishing benefits is a stubborn fact about the source of pollutants to the Chesapeake Bay. From 1985 to 2010, the percentage of nutrients from industry and wastewater plants declined by 31 percent, representing a decrease in the total loads to the bay from 18 percent to 16 percent. This reduction is even more impressive when you remember that more than five million people moved into the region over that time.

On the other hand, nutrients also come from “nonpoint source” pollution. In contrast to the discrete point sources of industry and utilities, nonpoint-source pollution flows into our water bodies via the rainwater runoff from the land that surrounds us, be it farm fields, front lawns, paved roads, or parking lots. This type of pollution has increased from 56 percent to 58 percent for nitrogen and 54 percent to 71 percent for phosphorus, in large measure due to both suburban sprawl and the reduction in point-source discharges. Homeowners and farmers alike frequently overfertilize their land, much of which runs off in the rain. Animal waste, decaying leaves, and a wide range of oil, grease, metals, and other pollutants spill off the land in rainstorms as well. This rainwater flow heads into the nearest water body. Algae in the water don’t care whether the nutrients come from wastewater plants or from runoff—they just gorge on the nutrients and absorb the oxygen in the water, causing other aquatic life to struggle.

Such nonpoint-source pollution is now the major impediment to good, quality water. Yet the Clean Water Act has not evolved to meet this reality. Blue Plains, just one of 483 wastewater plants in the six-state region that drains to the Chesapeake, is spending $1 billion to remove the next increment of nutrients. In comparison, the Natural Resources Conservation Service, the largest federal supporter of programs to reduce nutrient pollution from agriculture, spent $306 million in total over the entire Chesapeake region—from 1994 to 2005! But Blue Plains’s discharge, huge though it may be, is just 2 percent of the total nutrient load that goes into the Bay. Today, agricultural runoff causes 20 times more of the problem. Which is why, despite the enormous expenditures by industry and utilities, the capital region’s rivers and the Chesapeake Bay are no longer improving. The act’s success has ensured that industry and utilities are no longer the largest share of the problem. Even if we reduce pollutants from these sources to zero, the area’s waters would still not be that much cleaner, all because of nonpoint-source pollution.

Compounding the failure is the unfairness of overburdening metropolitan ratepayers with a disproportionate share of resolving our clean-water problem. Ratepayers foot the bill for the billions of dollars of huge capital projects, despite the relatively minor incremental improvements to water quality. For District of Columbia ratepayers, total monthly bills have increased by more than 70 percent in the last five years—from about $40 a month to more than $70—a trend likely to continue for the foreseeable future and a fate shared by ratepayers countrywide.

Critics, then, are fundamentally right. The Clean Water Act today is driving costs that are unfair, overburdening metropolitan populations while the major sources of problems to most water bodies—located in suburban and rural areas—go mainly unchecked. Federal and state bureaucracies continue to ratchet down the discharge levels from certain sources and not others, following an approach informed by the problems we confronted in the 1960s.

To be fair, the Clean Water Act has provisions that seek to reduce nonpoint-source pollution. Although an afterthought in the congressional debate that led to the statute in 1972, these sections of the act enable the development of “pollution diets” that can help identify reductions from all sources. A “pollution diet”—technically called a Total Maximum Daily Load (TMDL)—is the total amount of a pollutant a water body can handle safely without harm to human or aquatic life. If a water body exceeds the TMDL, regulators allocate reductions from all sources, including nonpoint sources. Yet to date, most of the reductions continue to focus on metropolitan areas, aren’t nearly as stringent as the technology-based requirements on industry and utilities, and are largely voluntary for agriculture. Voluntary reductions before 1972 brought us burning rivers. Voluntary reductions today are about as successful.

A New Clean Water Act

The Clean Water Act needs to change. What should a new and improved act look like? For the Clean Water Act to evolve, we need to start with some basic principles.