Legal Tools for Climate Adaptation Advocacy: Clean Water Act Permitting and Funding Programs

Climate change imperils the quality of water resources and aquatic ecosystems by introducing or exacerbating supply challenges and pollution threats. Existing legal frameworks, including permitting and grant programs, can incorporate climate change adaptation into the way we protect water. In particular, the Clean Water Act – the primary tool used nationwide to protect surface waters from pollutant discharges and fill activity – can be used to promote climate change adaptation in a number of ways. The Clean Water Act was enacted in 1972 and amended in 1977 and 1987. The statute is principally administered by the U.S. Environmental Protection Agency, which issues regulations, brings enforcement actions, awards grants, and more. Clean Water Act permitting is often administered by the states, subject to EPA oversight. At the same time, states are able to enact their own water protection laws beyond the scope of federal law. In order to use the Clean Water Act to encourage adaptation to climate change, both federal and state authorities can reconsider how permits are issued and how grants are pursued and awarded. For instance, as climate change renders clean freshwater resources scarcer in many places, authorities can respond by imposing stricter pollution limits through the Clean Water Act where necessary to protect an increasingly stressed water supply, accounting for both current conditions and future trends. Furthermore, as climate change creates new or increased pollution threats for some waterways, Clean Water Act authorities can respond through permitting processes or strategic funding opportunities