While it was sad to leave campus when Barnard and Columbia moved to virtual classes, studying during the spring and spending the summer at home afforded me new opportunities to engage with the concepts covered in Professor Neacsu’s Spring 2020 Environmental Law class. During the Environmental Law class, I became particularly fascinated with the Clean Water Act (33 USC 1251) and wrote my class final paper on the subject.
The Clean Water Act (CWA) is one of the most progressive and important, yet controversial statutes of environmental regulation. Its main purpose is to provide the framework and structure for controlling pollutants in United States waters. The Clean Water Act was first passed in 1972 and was formerly known as the Federal Water Pollution Control Act. Its goal is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” (33 USC §1251 a).
The CWA also provides the goals of eliminating discharge pollutants, protecting fish and wildlife, prohibiting toxic pollutants, implementing adequate wastewater treatment, conducting research to develop protection technology, and developing a method to control nonpoint sources of pollutants. Further, the Act states that the United States, specifically through Congress and the President, will take “meaningful action for the prevention, reduction, and elimination of pollution” in international waters as well as national waters (33 USC §1251 c). While the Clean Water Act provides the framework for protecting the United States’ waterways, there is still debate over what constitutes a point and non-point source of pollution, and how to monitor groundwater pollution.
Building on this newfound interest, I found the Environmental Law Institute’s summer school program. The Environment Law Institute is a “non-partisan research and education center working to strengthen environmental protection by improving law and governance worldwide”. The free weekly seminars addressed concepts from the basics of key environmental legislation to environmental justice. Each seminar had a panel of experts who presented on and answered questions about current cases and applications of environmental law legislation and concepts. The June 16, 2020 seminar addressed the Clean Water Act: its origin and goals, implementation, and enforcement as well as examples of its applications. You can find the link to watch the seminar here.
During the webinar, I found Professor Sara Colangelo’s discussion of the County of Maui v. Hawai’i Wildlife Fund (140 S. Ct. 1462) case interesting and timely. The case was argued in front of the Supreme Court in April 2020, and serves as a recent application of the Clean Water Act. It was actually brought forth by citizens, empowered under the Clean Water Act’s citizen suit provision to enforce the health of U.S. waterways. In summary, the County of Maui’s Lahaina wastewater reclamation plant was partially treating sewage then pumping 4 million gallons of the treated water each day into four underground wells. The sewage was reemerging half a mile away from the underground wells and polluting the popular Kahekill beach (140 S. Ct. 1462 1466).
The legal issue was “whether the pollutants’ journey through groundwater before reaching the ocean exempted the County’s plant from federal permitting requirements under the Clean Water Act” . This case included strong evidence from scientific analysis of coral degradation to a groundwater dye tracer study. According to Professor Colangelo, this strong pictorial evidence is rare for a Clean Water case. With the opinion written by Justice Beyer, the Supreme Court ruled that the wastewater plant required a permit “if the addition of the pollutants through groundwater is the functional equivalent of direct discharge from the point source into navigable waters” (140 S. Ct. 1462 1468).
Beyond learning about environmental regulations at school and at online webinars, the local Montgomery County Maryland Department of Environmental Protection started the Lower Booze Creek restoration repair project near my home. As I have been home during the pandemic, I have been able to observe the creek and the progress of the restoration project. Booze Creek has an estimated drainage area of 2,790 acres and flows into the Cabin John Creek, which later feeds the Potomac River. Much of the watershed is developed, suburban land, including a high density of impervious surfaces. With an increase in large rainstorms, especially in the summer months, the banks and riparian zones of the creek are severely impacted, leading to soil erosion and pollution of the water. The restoration project hopes to “address long-term channel stability and achieve water quality, ecological, and infrastructure improvements”. It is encouraging to see that the health of the creek is one of the priorities in Montgomery County, MD.
The beauty of the concepts learned in the spring’s environmental law class is its ability to be applied to real environmental situations. Learning about the legal consequences of the Clean Water Act in both Montgomery County, MD, and Maui in Hawaii brings to life national environmental legislation and how it affects citizens nationally and locally, even as personal as your own backyard.
By: Eden Halpert, Barnard College, Class of 2023