New Ways to Protect Water After Supreme Court Disaster

The Klamath River in northern California

BLM.gov

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October 18th is the 52nd anniversary of the passage of the Clean Water Act, so it's a good moment to reflect on where we stand on clean water nationally. The headline: not so hot. But that doesn't mean we should despair-clean water advocates across the country are fighting hard, and we know what we need to do. This post highlights one area of action that might not be obvious but that is critical for us to pursue if we want to protect water resources at a time when our principal tool for preventing harm to aquatic ecosystems, the Clean Water Act, is limited.

The Clean Water Act helped restore our waterways

In 1972, the United States took a monumental step toward protecting its waterways with the passage of the Clean Water Act. This landmark legislation emerged at a time when the nation's waters were in crisis, with industrial waste, sewage, and chemicals regularly discharged into rivers and lakes without restriction.

The state of America's waters in the early 1970s was dire. One of the most infamous examples was the Cuyahoga River in Ohio, which caught fire multiple times in the prior decades due to oil and other pollutants floating on its surface. A river on fire became a symbol of environmental neglect, capturing public attention and sparking a national outcry. Industrial facilities were using rivers as waste disposal systems, and cities were dumping untreated sewage directly into waterways. The result was widespread pollution that threatened public health, wildlife, and the integrity of ecosystems across the country.

The Clean Water Act, which bipartisan majorities in Congress passed overwhelmingly, had a single objective: to restore and maintain the integrity of the nation's waters. It aimed to eliminate the discharge of pollutants into navigable waters by 1985 and achieve water quality levels that are "fishable and swimmable" by 1983. While these specific deadlines proved overly optimistic, the law marked a turning point in environmental policy and set the foundation for decades of progress.

Over the past five decades, the Clean Water Act has led to remarkable improvements in water quality across the United States. Many water bodies once considered "dead" due to pollution have been revitalized, providing habitats for fish and wildlife to thrive once again. Cities and municipalities were required to build wastewater treatment plants, leading to cleaner water for urban and rural communities alike. Industries that had long used rivers as waste disposal systems were forced to comply with new pollution limits. But things were not perfect-not by a long shot.

Progress toward healthy waters has been lagging

As we discuss below, the biggest threat to clean water today is the fallout of a 2023 Supreme Court decisionthat dramatically limited the federal Clean Water Act's ability to protect wetlands and many streams from pollution and destruction. But it's worth noting that our streams, ponds, and wetlands were not in great shape even before the Court made things much worse.

• In a 2017 report to Congress, 55 percent of the rivers and streams assessed by states were found not to meet water quality standards. A recent nationwide analysisfound that, in 2018-19, only 28 percent of river/stream miles had healthy biological communities and only 35 percent had healthy fish communities.

• The National Lakes Assessment, evaluating the health of our nation's lakes between 2017 to 2022, found that roughly half of country's lakes are in poor condition due to nitrogen and phosphorus pollution.

• A 2024 U.S. Fish & Wildlife Service reportrevealed that the rate of wetlands loss in the country accelerated from 2009 to 2019 and that the nation lost approximately 670,000 acres of vegetated wetlands during that span.

So when the Supreme Court announced that it would decide which water bodies are protected by the Clean Water Act's pollution critical control and cleanup programs, we had already fallen far short of achieving the law's objective, such that the country couldn't afford the law to be weakened.

The Santa Cruz River, which runs from south to north through Tumacácori National Historical Park

NPS.gov

FEMA's new rule requires FEMA-funded infrastructure projects located in a floodplain or wetland to use natural features and nature-based approaches, where possible, to preserve the beneficial functions of floodplains and wetlands. Further, FEMA's new rule now requires the agency to factor in the impact of climate change on future flood risk when it decides where and how to build. The new rule requires all construction projects funded by FEMA to be higher elevated and better strengthened against climate-related flood impacts, like sea-level rise.

NRDC and our partners are now urging FEMA to build on this success by going beyond the rules for federal projects and reforming another set of regulations that could have an even bigger impact: the rules that govern the National Flood Insurance Program (NFIP).

When communities enroll in the NFIP, their residents become eligible to purchase federally subsidized flood insurance. In return, those communities must agree to take certain measures to reduce the risk of flooding-for example, requiring new buildings to be elevated and restricting development in floodways. These are commonly known as the NFIP "minimum criteria."

The criteria have not been comprehensively amended since the early 1970s, despite significant increases in flood damage in recent decades. It's especially problematic that they lack any mandatory protections for wetlands or natural floodplain functions. That's why NRDC, together with the Association of State Floodplain Managers, petitioned the agency in 2021to revise the NFIP regulations and incorporate new measures within the minimum criteria that will better manage flood risk. As part of these reforms, FEMA should require communities to avoid development within wetlands and other natural floodplain areas that absorb floodwaters and keep people safe-and where those impacts are unavoidable, to minimize and mitigate any losses that occur.

The agency has confirmedthat it plans to propose regulations updating the minimum criteria "to make communities safer, stronger, and more resilient to increased flooding." It should do so as soon as possible given that climate change is exacerbating flood risk around the country. We look forward to working with FEMA to develop specific policies and actions that communities across the country can adopt to protect wetlands and keep people safe from floods.

There's a lot of work left to do

Ultimately, fixing the problem that the Supreme Court createdis going to require Congress to act, because only a national law can provide comprehensive protections that ensure people can benefit from clean and healthy freshwater ecosystems, no matter where they live. People who care about clean water-that is, all of us!-will need to keep pushing for a legislative solution, but in the meantime, there's plenty we can do to try to avoid the worst outcomes. Federal agencies like FEMA can be a part of that important effort and we'll be working hard to make sure they are.