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A Bolder Clean Water Act for the Next 40 Years

As game-changing laws go, the 1972 U.S. Clean Water Act ranks high. With images of rivers like the Cuyahoga burning and fish floating belly up in Lake Erie still fresh in the public’s mind, the Act transformed the nation’s relationship with fresh water.  It forbade cities and industries from using rivers and lakes as waste...

The Connecticut River, New England's largest, at Holyoke Dam in Massachusetts during the dry summer of 2012. Thanks to the Clean Water Act, many rivers like the Connecticut are cleaner today, but dams and droughts create new challenges to river health. photo by Sandra Postel

As game-changing laws go, the 1972 U.S. Clean Water Act ranks high.

With images of rivers like the Cuyahoga burning and fish floating belly up in Lake Erie still fresh in the public’s mind, the Act transformed the nation’s relationship with fresh water.  It forbade cities and industries from using rivers and lakes as waste receptacles.  And it shifted the burden of proof about pollution’s harms from the government to polluters: the Act required dischargers to have a permit, and mandated the adoption of technology-based pollution controls.

The Act also set an ambitious goal: by 1985 the nation’s waters should be “fishable and swimmable.”  Although we missed that deadline, we are two-thirds of the way to achieving that goal. And we now know that reaching it will require addressing so-called “non-point” sources of pollution, including runoff from farms and city streets.

This year, as we celebrate the Act’s 40th anniversary, we can take pride in its accomplishments.  But after four decades, the Act needs to be given new teeth and updated tools, both to meet its original goals as well as to address new water challenges that have emerged since its passage.

Here’s a short list of priorities.

First, clarify the scope of the Act.  Recent Supreme Court cases have caused a great deal of confusion and ambiguity about what waters the Act actually protects. In particular, the 2006 case of Rapanos v. United States produced hydro-illogical results by disavowing the connections between wetlands, headwater streams and navigable waters.

I joined with nine other scientists in an amicus brief in that case, in which we wrote: “Reasonable people can disagree over language, and it is for the Court to decide questions of law. But when it comes to the connection of tributaries, streams, and wetlands to navigable waters and interstate commerce, there is no ecological ambiguity…[I]f  the Clean Water Act does not protect these resources, then it does not protect navigable waters from pollution, and it cannot achieve its goals.”

Second, provide stronger incentives (or requirements) to curb fertilizer and pesticide runoff from farms.  This runoff is not only contaminating rivers and groundwater, it is a major cause of the low-oxygen dead zones in the Gulf of Mexico and other coastal areas that threaten commercial fisheries and other marine life.

Third, address pollution from urban storm water.  When heavy rains run off city streets, they carry automobile oils and other pollutants into nearby rivers and streams.  When storm water flows into sewers it can overload wastewater treatment plants, causing discharges of untreated sewage, as happens, for example, into New York Harbor and San Francisco Bay.

An estimated 10 trillion gallons of polluted stormwater annually runs off urban environments.  Upgrading sewers and wastewater infrastructure can help, but innovative “green infrastructure” – including rooftop gardens, rain-catching street designs and permeable pavement – can help mitigate the effects of storm water while beautifying urban environments and saving money.  A study by the Natural Resources Defense Council describes how Nashville, New York City, Philadelphia, Portland, Oregon, and a number of other cities are investing in these solutions.

Fourth, bring the energy production practice of hydraulic fracturing under the purview of the Clean Water Act (as well as the Safe Drinking Water Act) and establish permitting requirements that safeguard surface and groundwaters from contamination.  Fracking should be discontinued or banned, as New York State has done, until the public health risks are fully understood and water protections can be put in place and verified.

Fifth, reinvigorate water conservation and efficiency.  Water quality depends on having adequate quantity. A few years after the Clean Water Act’s passage, President Jimmy Carter issued a presidential directive calling on all federal agencies with authorities over water to incorporate water conservation into long-term water supply planning.  The Army Corps of Engineers, EPA, and other agencies began to do this, and had this effort continued in subsequent administrations the savings could have allowed more water to remain in rivers and streams, enhancing supply and quality.

The water efficiency standards for toilets, faucets and showerheads passed as part of the 1992 Energy Policy Act helped build conservation into new homes and offices. Amy Vickers, author of the Handbook of Water Use and Conservation, and principal author of those efficiency standards, estimates that by 2025 they will produce savings equivalent to the annual water use of six New York Cities. That is good progress, to be sure, but a new round of incentives for outdoor water use and, especially, farm irrigation is crucial.

Six, restore natural flow patterns to rivers.  The importance of the “natural flow regime” to river health was not known in 1972.  However, we now know that it’s not sufficient to keep some “minimum flow” in a river channel. A healthy river needs flows that mimic to some degree its natural flow variability—the pattern of highs and lows, floods and droughts—that the river historically exhibited and that the life in it depends upon for migration, spawning, food and habitat.

For about a decade, The Nature Conservancy and the Army Corps of Engineers have worked together to pilot the re-operation of 36 dams in 8 different river basins across the United States.  The early results are promising that we could achieve good ecological benefits with minimal sacrifice of hydropower, flood control, recreation and the other purposes for which the dams were built.  With 1,932 federal dams across the country, we might achieve substantial gains in river health by asking, dam by dam, whether we can give the river back some of its natural flows by operating the dams a bit differently.

Lastly, we need innovative responses and adaptations to drought.  Water stress is intensifying across the country, and when drought hits on top of that stress, rivers and other freshwater ecosystems often suffer.  Pilot projects and policy adaptations to showcase new approaches to safeguarding rivers, lakes and streams during droughts will be especially critical as climate impacts, with all their attendant effects on the water cycle, unfold.

Sandra Postel is director of the Global Water Policy Project and lead water expert for National Geographic’s Freshwater Initiative.  She is the author of several acclaimed books, including the award-winning Last Oasis, a Pew Scholar in Conservation and the Environment, and one of the “Scientific American 50.”

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Meet the Author

Sandra Postel
Sandra Postel is director of the Global Water Policy Project and author of Replenish: The Virtuous Cycle of Water and Prosperity. From 2009-2015, she served as Freshwater Fellow of the National Geographic Society. Sandra is also co-creator of Change the Course, the national water stewardship initiative awarded the 2017 US Water Prize for restoring billions of gallons of water to depleted rivers and wetlands. The recipient of several honorary degrees, she works to bridge science, policy, and practice to promote innovative ways of securing water to meet both human and ecosystem needs.