by Cassondra Britton
“How could this happen?” this question was repeated when discussing the tragedy that had befallen Flint, Michigan. In 2014 thousands of Flint residents began noticing their water had begun to look, taste, and smell funny. By 2015 the Environmental Protection Agency (EPA) and Virginia Tech indicated dangerous levels of lead in the water at residents’ homes. However, these tests came too late, many children and adults had dangerous levels of lead in their blood with no remedy. After the Flint, Michigan story broke out the people across the United States began to fundraise and raise awareness of the tragedy using their own money to provide bottled water for the residents. Why was this necessary in the United States shouldn’t the government be in charge of that?
More than 50% of Americans believe water is a RIGHT
One would think the US government would be liable to provide a basic necessity, such as clean water, but the right to clean water is nowhere to be found in United States law, it absent from the United States Constitution and congressional bills. Yet more than half of Americans believe that water is a right and ninety one percent are “concerned that America’s waterways will not be clean for their children and for their grandchildren.” The rapidly declining sewage and wastewater infrastructure, as well as the increasing levels of nonpoint source pollution, runoff from farms, juxtapose these convictions. This dynamic has led to almost half of the nation’s waters being too polluted to serve as drinking water, or to support wildlife, and a decline in EPA regulation.
The strongest piece of legislation, in the US, that addresses this right to water is the Clean Water Act (CWA). Passed in 1972, the CWA goal was to regulate pollutants in the water and surface water, but it does not guarantee a right to clean water rather provides measures to ensure clean water. Under the CWA, the EPA can implement pollution control and water quality standards. However, this CWA enforcement and power has continued to decline since its invocation. Recently, two Supreme Court decisions, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v. United States narrowed the CWA power significantly.  By focusing on the wording of “navigable waters”, a term the CWA uses, the Supreme Court through these cases narrowed the reach of the CWA significantly by excluding wetlands, headwaters, and intermittent streams from the Protection of the CWA. These facts combined with EPA budget cuts and rapid underfunding created the ongoing tragedy in Flint. It wasn’t until January 2016 that the government provided bottled water to the citizens of Flint and as of April 2018 the bottled water program is beginning to end, but the water infrastructure problems are not set to be done till 2020.
91% of Americans are concerned their water will not be clean for their children or Grandchildren
The next question then becomes wasn’t the CWA created to prevent a Flint crisis? How do we as a nation prevent this tragedy from reoccurring, especially as climate change pushes our water infrastructure. To solve this issue we can look abroad. In July 2010 the UN general assembly recognized the human right to water and sanitation by stating “…the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.” The CWA is limited because it doesn’t make water an express right like the right to free speech granted by the US constitution. The United States did not originally adopt this fundamental right, but if the US did adopt this right the UN would consider Flint a human right violation. Another approach, according to Sharmila Murthy Suffolk University School of Law professor, is to make providing safe drinking water an absolute government obligation.
Finally, we as a nation could call for the CWA to be revised and given the power it once had. The CWA was not always so weak, before its passage only about a third of the US water was safe for swimming or fishing with most of the water being contaminated by raw sewage and there was rapid widespread wetland loss. Within 40 years of the CWA nearly 65 percent of water in the US has been deemed safe for swimming and wetland losses have dramatically fallen. The problem is the act is not strong enough and broad enough to protect drinking water across the US. If we as a nation demand more funding for the EPA and demand congress revise the CWA to include mandatory drinking water standard, mandatory water infrastructure inspections, and staffing as well as funding for this large project communities across the country could finally have access to the fundamental human right of clean drinking water.
Steps to Prevent the Next Water Crisis:
- Adopt UN right to water and Sanitation
- Make safe drinking water an absolute government obligation
- Revise and Strengthen the Clean Water Act
 Reed Benson, Pollution without Solution: Flow Impairment Problems Under Clean Water Act Section 303, 24 STAN. ENVTL. L.J. 199, 267 (2005).
Cassondra Britton is a second-year law student working on her concentration in environmental law. Her longtime goal is to work with water and conservation. Cassondra is currently taking the course ‘Human rights, the Environment, Development and Community Resilience’ this quarter with Professor Brownell.