This article examines the assumptions upon which Congress relied in enacting the 1972 Clean Water Act and the extent to which they have been borne out or belied as the federal and state governments have implemented their statutory responsibilities in the quest to achieve acceptably clean water. It traces the development of federal water pollution control legislation before 1972, highlighting the deficiencies that contributed to the need for a new approach in 1972. It then examines the scientific and technical, political, and legal assumptions that helped shape the 1972 Clean Water Act in an effort to determine whether the failure to achieve fully the statute’s goals is inherent in the statute’s design or is more likely the result of the law’s incomplete implementation. The article concludes that a surprisingly large share of the assumptions upon which Congress built the Clean Water Act were valid and have helped to make the statute an environmental success story. The statute’s failure to perform even more admirably than it has is due largely to a lack of legislative clarity in addressing the role of wetlands in preserving the integrity of aquatic ecosystems and to Congress’ unwillingness to adopt, or force the states to adopt, measures to control nonpoint source pollution.
GW Paper Series
GWU Legal Studies Research Paper No. 484; GWU Law School Public Law Research Paper No. 484
Robert L. Glicksman & Matthew R. Batzel, Science, Politics, Law and the Arc of the Clean Water Act: The Role of Assumptions in the Adoption of a Pollution Control Landmark, 32 Wash. U. J.L. & Pol'y 99 (2009).