Gaming The System: The Clean Water Act’s Loophole Problem
For over 50 years, the Clean Water Act has done much to protect our nation’s waterways, but loopholes in the regulations and lax enforcement have crippled its effectiveness, allowing polluters to exploit the system and contaminate our waters with impunity.
October 16, 2024
LA Waterkeeper Legal Team
Photo Credit: Weerayuth Kanchanacharoen
In 1969, Ohio’s Cuyahoga River caught fire. After years of unchecked industrial dumping, the river had become so polluted with oil, chemicals, and waste that a stray ember from a passing train ignited its surface, sparking public outrage along with it.
In response, Congress worked to pass the Clean Water Act (CWA), establishing a landmark law designed to regulate pollutants, set water quality standards, and enforce penalties against those responsible for pollution.
Over the past 52 years, the CWA has done a lot to safeguard our nation’s waterways. However, today’s environmental landscape is far more complicated than it was in 1972.
Emerging pollutants, like PFAS and microplastics, are adding unforeseen layers of ambiguity, while industrial stormwater pollution remains a persistent problem.
Recent U.S. Supreme Court (SCOTUS) decisions have further restricted the Act’s scope, making it even more difficult to hold polluters accountable.
As we approach the 52nd anniversary of the CWA, it is a good time to reflect on the Act’s successes, explore the challenges that still lie ahead, and highlight how organizations like ours are navigating these hurdles to continue fighting for the Act’s vision of safe, swimmable, and fishable waters for all.
The Legacy of the Clean Water Act
The CWA fundamentally reshaped how the U.S. manages water pollution. Before 1972, industrial facilities, municipalities, and even farms were largely unregulated in their discharge of pollutants into the country’s rivers, lakes, and oceans. But with its passage, the CWA set strict limits on pollution in U.S. waters, creating a framework that would significantly reduce the harms of unchecked toxic discharges.
“Loopholes in both the design and enforcement of the IGP have made it easier for companies to appear compliant on paper while continuing to discharge harmful pollutants into our waterways. “
The Act also introduced the National Pollutant Discharge Elimination System (NPDES), which required industries to obtain permits for any pollutant discharges into U.S. waters. This system allowed the government and the public to track which pollutants were being released and hold industries accountable for their impacts on water quality.
Most importantly, the CWA empowered everyday citizens to act as watchdogs, allowing them to sue polluters in federal court for violating clean water standards. Over the years, this provision has led to numerous lawsuits that have forced polluters to clean up their acts and pay for any damage they have caused.
Why It’s Falling Short: The Clean Water Act’s Loophole Problem
While the CWA laid the foundation for regulating water pollution, it couldn’t foresee all the deliberate, sophisticated strategies industries would develop to sidestep its regulations.
Take California’s Industrial General Permit (IGP) for industrial stormwater pollution, for example. Since our founding, LAW has utilized the CWA’s protections to enforce against industrial stormwater pollution, but we’ve seen firsthand how gaps in today’s regulations, including the IGP, allow pollution to persist.
Loopholes in both the design and enforcement of the IGP have made it easier for companies to appear compliant on paper while continuing to discharge harmful pollutants into our waterways. One of the most significant loopholes lies in the IGP’s sampling requirements chosen by the State Water Board.
Although facilities are required to test stormwater twice per half-year, the facilities themselves are free to choose which storms to sample. This flexibility means that many companies take advantage by waiting until multiple storms have diluted pollutants before testing. The result? Artificially clean data, the false impression of good performance even when significant pollution events have occurred in between, and a consequent lack of enforcement of those facilities.
The IGP’s online self-reporting system further enables such exploitation. Under the permit, facilities are required to submit their water quality sampling and compliance data through an online form, and to confirm in the form of a “yes” or “no” answer on the form whether they have conducted the required amount of sampling.
If a facility indicates they didn’t conduct enough sampling by marking “no,” the system requires the facility to offer an explanation, and then raises a red flag internally in the Water Boards’ system for potential follow-up.
However, if they mark “yes,” claiming they have conducted the sampling, no red flag is raised, and no further action is triggered—even if no data is ever uploaded—a fact that the system could easily verify.
In one instance LA Waterkeeper uncovered, a facility avoided any agency enforcement for over four years by marking itself as compliant without ever providing a single actual test result.
Larger companies, with more resources at their disposal, have become particularly adept at taking advantage of every possible loophole and advantage provided by the regulations.
“Larger companies, with more resources at their disposal, have become particularly adept at taking advantage of every possible loophole and advantage provided by the regulations […]
Meanwhile, smaller facilities, which lack high-priced consultants or detailed knowledge of the regulations, are more likely to be caught out of compliance, unfairly prejudicing what are often small, privately- and family-owned businesses. “
Other common strategies include:
sampling more storms than are required in order to dilute pollutant averages (but only in years when necessary) and then stopping once the desired average is reached
sampling more locations than are required in order to dilute pollutant averages by sampling in areas without industrial activities that are known to therefore be cleaner
claiming that their businesses are “closed” during rain events, as sampling is only required during claimed operating hours.
Meanwhile, smaller facilities, which lack high-priced consultants or detailed knowledge of the regulations, are more likely to be caught out of compliance, unfairly prejudicing what are often small, privately- and family-owned businesses.
Finally, inadequate enforcement of the IGP further reduces the incentive for compliance. Regulatory agencies rarely, if ever, take formal action against these facilities. Instead of meaningful penalties or legal action, non-compliant companies are often simply asked to submit a plan outlining how they will improve next year.
These plans are often rubber-stamped by regulators, even when they are clearly insufficient or ineffective, based on the flawed logic that simply submitting the plan will be enough to deter facilities from repeating the violations.
If the agencies do impose penalties, they are often applied unevenly. Some facilities are penalized for actions—like uploading sampling results late—that many others get away with. For large companies, these penalties are little more than a slap on the wrist, but they can severely impact smaller businesses.
This issue is compounded by the fact that smaller companies are penalized more often, as they are more likely to be targeted for enforcement, making the penalties disproportionately harmful. Meanwhile, the public and our ecosystems are left to bear the impacts of this continued abuse.
The Fight for Accountability
For over 31 years, Los Angeles Waterkeeper has fought relentlessly to hold polluters accountable and push for cleaner waters and healthier communities. As a member of the California Coastkeeper Alliance (CCKA), Los Angeles Waterkeeper is part of a statewide coalition working to strengthen water protections under the IGP and ensure that industrial polluters are brought to justice.
Over the past few years, CCKA has spearheaded meetings with the California State Water Resources Control Board, raising concerns about the IGP’s shortcomings and loopholes. Each meeting has focused on specific issues that contribute to widespread non-compliance, including the numerous regulatory loopholes in the IGP.
“By creating uncertainty over when judges should and will defer to agency interpretations, this new legal regime complicates enforcement, weakens regulations, and puts the future of the CWA—and its power to hold industrial polluters accountable—at serious risk.“
While the State Water Board has been receptive to many of these concerns and is working on revisions to the IGP—expected in early 2025—progress has been slow and uncertain. Nevertheless, we remain committed to pushing for these changes and ensuring that the updated permit closes the loopholes that have allowed inadequate compliance to persist for far too long.
Beyond policy advocacy, LA Waterkeeper also plays an active role in monitoring industrial facilities, conducting site visits, reviewing reports, and identifying violators. When we find evidence of non-compliance, we often take legal action to force companies to clean up their practices, or otherwise refer them to the Regional Water Board so that it can take action itself.
This legal pressure has led to significant improvements in many facilities, as companies are often required to invest in better pollution control measures as part of settlement agreements to avoid further penalties. Additionally, we continue to collaborate with other NGOs and community members to identify polluting sites and take appropriate action.
The Path Forward
June’s SCOTUS decision to overturn Chevron deference has only further exacerbated these challenges. By creating uncertainty over when judges should and will defer to agency interpretations, this new legal regime complicates enforcement, weakens regulations, and puts the future of the CWA—and its power to hold industrial polluters accountable—at serious risk.
But this doesn’t mean the fight is lost. Los Angeles Waterkeeper, alongside our nonprofit and coalition partners, remains committed to pushing for regulatory reforms and holding polluters accountable. Now, more than ever, we are determined to protect the vital safeguards the CWA was designed to provide.
But we can’t do it alone. In this shifting legal landscape, public support is more critical than ever. By staying informed and supporting our work, you can help protect the legacy of the Clean Water Act and keep our waterways healthy for generations.
Join us—make a donation and become an LA Waterkeeper member today. Your membership not only strengthens our legal standing, empowering us to defend and protect our waters, but also enhances our ability to communicate with and educate the public. It also helps us identify which waterways are most in need of protection, allowing us to focus our efforts where they’re needed most.
Now is the time to act to strengthen our water quality protections and hold polluters accountable—our waters, our health, and our future depend on it.