Making Rules: Clean-Water Utilities Have Earned the Right to More Trust From Regulators

The Clean Water Act has been enormously effective since its passage in 1972. But is it time to revisit its provisions and approach?

It’s hard to name a federal law or regulation that has done more good than the Clean Water Act.

Passed in 1972 with the lofty aim of making the nation’s heavily polluted lakes and streams fishable and swimmable, the act has brought enormous progress. A poster child for the act’s success is Lake Erie, which had been written off as dead, but within a relatively short time was reborn and became an incredible walleye fishery.

Today the work continues, but at least one influential industry group sees a need for changes in approach. The National Association of Clean Water Agencies in recent years has worked with the U.S. EPA and Congress on ways to streamline and simplify the act’s regulatory framework, aiming to give utilities more flexibility in meeting their obligations to protect public health and the environment.

This makes sense in a climate where public and private entities routinely go beyond what laws require, on issues from clean water, to clean air, top sustainability and climate change.

To cite just a couple of examples, clean-water plants routinely outperform their effluent permits, and by wide margins. Meanwhile, many states, counties and cities, not to mention corporations, have broad and aggressive plans to reduce carbon emissions, although not required by any federal or state regulations to do so.


In my observation, an environmental ethic has taken hold that organizations nearly across the board are responding to. Regulations like those under the Clean Water Act have tended to emphasize command and control with enforcement by way of consent decrees and fines as the hammer. That was no doubt necessary 50 years ago when our society was used to treating lakes and rivers like sewers and the concept of pollution control was new.

Times have changed, and greatly. Corporations feel public pressure to operate sustainably. Public entities like utilities do as well, but through my contacts with clean-water and drinking water operators, I notice something more fundamental.

Operators in an important sense are true environmentalists. They continuously strive for a better end product not because of public pressure but because they see it as their job. They take intense pride in it. And so, where is the dire need for command and control over what they do?


In line with that, NACWA sees a need for what might be described as a kinder, gentler approach, one that regulates in ways that encourage efficiencies, innovation and cost savings.

More to the point, the association argues that utilities, through decades of working effectively to safeguard the environment and improve the waterways, have earned the right to operate as partners in setting the regulatory agenda.

 After all, who knows more about making clean drinking water and high-quality effluent than the people who do it, or oversee it, every day of their working lives? Wouldn’t regulators benefit more from tapping into operators’ knowledge and expertise than from handing down edicts?

 One example of a more flexible approach to regulation lies in the dealing with nutrients that cause algae blooms and, in extreme cases, “dead spots” in places such as the Gulf of Mexico and the Chesapeake Bay. To date, regulation has focused mostly on point sources, including the outfalls of clean-water plants, when other sources like failing septic systems and runoff from farm fields and urban streets are also significant and possibly larger contributors.

Toward that end, a concept called adaptive management has come to the fore. Under that approach, instead of spending millions for plant upgrades to meet ever-stricter effluent phosphorus limits, utilities can work within the watershed to reduce nutrient inputs from farms and other nonpoint sources, often producing greater net nutrient reductions at less cost.


NACWA has also advocated, successfully, for a change of emphasis within the EPA from enforcement to compliance assistance as the best way to accomplish the goal of protecting water quality. In fact, four years ago, the EPA officially changed the name of its key priorities from National Enforcement Initiatives to National Compliance Initiatives.

This change acknowledged that heavy-handed enforcement and the meting out of penalties are not and shouldn’t be the only tools in regulators’ kits. The underlying assumption here is that utilities want to, can and will do the right things for the waterways if given the freedom to innovate. They may simply need helping in deciding what changes to make and how to make them in ways that are affordable and technically feasible.

Changes like these signal an era in which utilities and regulators are not adversaries but are on the same team, working to benefit the environment and society. It’s a way to help ensure that progress toward the goal of fishable and swimmable waters will continue. 


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