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On the 40th Anniversary of the Clean Water Act
The Future of Water
by ALAN FARAGO

When the Clean Water Act was passed by Congress forty years ago under a Republican administration, I was a clueless college undergraduate at Yale. Laws belonged to those serious looking law school students around the corner, perhaps including two I may have passed crossing the quad: Hilary Rodham and Bill Clinton. The environment? It seemed good to me.  If I had been questioned, I could have testified, walking with school friends to the banks of the Providence River in Rhode Island to watch the river in flames like the Cuyahoga in Ohio, that triggered the calls for federal clean water standards.

The Clean Water Act in 1972 organized the array of economic and citizen interests in preventing contamination from overwhelming our rivers, streams, estuaries and bays. It provided the legal framework through which our democracy attempts to sort out growth and protection, development and mitigation, and the values of a society that often fall short of the aspirations of our Founding Fathers. It has been a part of my life in ways that my twenty-year old self would never have recognized. There, too, I might have had a premonition.

I grew up in the summer playing at the bay’s edge in a small town called Touisset. Although I was a child, I vividly recall the rough-edged baymen who were the last generation in a lineage stretching back to the Pilgrims who fed families from the bounty of the bay.

Some of them likely traced their ancestors to the original Tea Party in Boston Harbor. They – like commercial fishermen I respected in Florida decades later—were fiercely independent and didn’t invite the care of the federal government in any way. But when pollution interrupted the food chain, they were helpless themselves to protect an historic and honorable way of life. As a child, I couldn’t have argued ‘there ought to be a law’, but as an adult I never made much headway persuading people disinclined to believe that government could solve the riddle of disappearing fish and marine life.

It is popular, today, to condemn federal regulations and laws like the Clean Water Act passed by Congress on October 18, 1972. But you have to remember, the states weren’t doing their job keeping the waters clean, just like state agencies aren’t doing the job today in Florida.

There is a tendency to bury the need for federal regulations in easily packaged canards. For example, “one size does not fit all”. But there should be no equivocating when it comes to clean water. We should no more compromise on clean water standards that are truly protective of human health and the environment than we should our national parks. Florida, Ohio, Nevada or Colorado don’t equivocate on the Bill of Rights or Declaration of Independence: nor should the states equivocate on the need for strong, tough federal laws protecting clean water.

The Clean Water Act gives citizens hope that governmental agencies will follow their own laws, holding polluters to account for the cost of their pollution. Sometimes, we the taxpayers are those polluters. One of the most important points of the Clean Water Act is that it allows citizens, if they prevail, to recoup attorney’s fees and litigation costs. This provision of the Clean Water Act is extraordinarily important, because it provides a thin measure of hope.

In the 1980’s, I was a young father with a growing family and was struck how the deterioration of Florida Bay that I learned to treasure from the bow of a fishing skiff resembled in many ways what happened in the 1960’s, when the largest coal-fired power plant in New England– in Fall River, Massachusetts—raised bay water temperatures through outfalls. From one summer to the next the entire ecology of the bay, changed. One summer I was watching silver minnows slashing through the shallows in great formations. The next summer they were gone and didn’t return.

Today I am president of Friends of the Everglades. Friends is a grass-roots organization in Miami, founded by an icon of the national environmental movement, Marjory Stoneman Douglas, in 1969. Marjory was a fierce advocate for “doing the right thing”, and she knew perfectly well that powerful, wealthy polluters like Big Sugar were determined to extract every ounce of leverage from state and local jurisdictions. Only the federal interest in the irreplaceable wetlands that require nourishment by clean water blocks exploiters who nonetheless obtain permits and cover their legal tracks.

In recent years, Friends has used the Clean Water Act in several ground breaking lawsuits. Along with our co-plaintiff, the Miccosukee Tribe of Indians, Friends sued the EPA under the Clean Water Act for failing to hold the state of Florida accountable to the law, prohibiting phosphorous pollution of the Everglades in minute quantities that nevertheless fundamentally change to quality of the faded River of Grass; a national treasure all Americans have rallied to restore. In 2012, our Clean Water Act litigation resulted in nearly $1 billion committed to the Everglades by the state and federal government.

We also used the Clean Water Act to attempt to clarify water transfers from a polluted source to a receiving water body. Jurisdictions around the nation paid extraordinarily close attention to our suit, that carried all the way to the US Supreme Court. We lost in the 11th Circuit Court of Appeals and our appeal died in the US Supreme Court.

The Clean Water Act is not perfect. If you are an environmental plaintiff, it can take many, many years for resolution. You can win the battle and the lose war. In the early 2000′s, after nearly a decade, a Sierra Club victory against the expansion of rock mines at the edge of the Everglades consumed hundreds of thousands of dollars. Although the environmentalists won in court, the rock miners spent millions to drag the case out by which time contested permits for wetlands destruction were simply replaced by new ones signed by the US Army Corps of Engineers.

In the last forty years, environmentalists have waged continuous battles at all levels of government, as local and state regulations have fallen beneath the notion that enlightened self interest by polluters is a better motivation that federal law. Anyone who has attended a county commission meeting in Florida, where permitting defaults from one layer of inefficiency to the state, knows the importance of federal authority. Yet the defenders of federal authority — perhaps they even attended Yale and other prestigious law schools in the 1970′s — silently cheerlead from the sidelines as the rules protecting the environment are thrown to the lions and tigers.

Like the flag at Fort Sumter in 1861, the Clean Water Act stands. On its fortieth anniversary, I am older and grayer but also wise enough to know that if radical extremists succeed in shrinking the size of government so it can fit and be drowned in a bathtub, the pollution they discharge from that bathtub will still be governed by the Clean Water Act.

Alan Farago is president of Friends of the Everglades.