New types of pollution

Untold numbers of new pollutants and sources of pollution have emerged since the CWA was passed-some naturally occurring but many man-made. These "emerging contaminants" are substances and microorganisms that may pose risks to human health or the ecosystem.

Microplasticsand PFAS are of growing concern, especially because of their risk to human health. These and other contaminants, including the pharmaceuticals we ingest that make their way through our sewage, are not broken down in the standard wastewater treatment process that the CWA requires.

Legal challenges

For decades, polluting industries have sought to undermine the CWA by limiting which pollutants and sources can be regulated, as well as which waterbodies qualify for protection. (This, despite how important clean water supplies are to many lucrative industries.)

Here are some of the most recent attacks on the CWA.

The Trump administration's Dirty Water Rule: Anti-science and illegal

In 2015, then president Barack Obama's EPA and Army Corps published the Clean Water Rule to clarify the scope of protections in the CWA-and specifically included wetlands and streams.

But developers have long argued that wetlands should not be protected because they are not navigable waters. And in 2019, the Trump administration repealed the 2015 rule and replaced it with what environmental advocates called the "Dirty Water Rule" because of how it drastically eliminated protections for millions of miles of waterways. The administration couldn't even estimatethis rule's potential impacts, and the EPA's own advisors warned that parts of the rule were not based on science at all.

The Dirty Water Rule was rejected by a federal judge in 2021. But these attacks continued…

Sackett v. U.S. Environmental Protection Agency: Reducing which waters are protected

In May 2023, a controversial U.S. Supreme Court decision gutted the Clean Water Act's protections for wetlands and many streams. Before the Sackett v. EPA case, Congress, agencies, and the courts all understood the CWA to protect most surface waters: oceans, lakes, streams, and wetlands. But the Sackett decision ruled out protections for an estimated tens of millions of acres of wetlands across the country, including swamps, marshes, and bogs-all havens for biodiversity.

The case centered around an Idaho couple who ran an excavation company and dumped 1,700 cubic yards of gravel and sand into wetlands without a permit. The Supreme Court's decision to side with the polluters ultimately narrowed the CWA's wetlands protections to just those with a "continuous surface connection" to a larger body of water. This redefinition also eliminated protections for rain-dependent streams.

Loper Bright Enterprises v. Raimondo: Weakening agency authority

In another Supreme Court decision, this one in June 2024, the Court's conservative majority decided in Loper Bright Enterprises v. Raimondoto upend 40 years of precedent known as the Chevron deference, a long-standing principle that when a law is vague, a federal court should defer to a federal agency's expertise and reasonable interpretation of the law.

This new decision will allow judges to substitute their own views about the meaning of a statute when reviewing actions by not only the EPA but all government agencies. It's too early to know how exactly it will specifically impact environmental and health protections, but it will likely make it harder for agencies to solve complex problems like water pollution-therefore putting public health at risk.

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