Monday
December 13, 2004
The Clean Water
Act—30 Years Later
Source: Know
Your Environment,
a publication of the Academy of Natural Sciences of Philadelphia.
Part 1-
Origins, Concepts and Citizen Action
I. Introduction
Cleveland, even now I can
remember
'Cause the Cuyahoga River
Goes smokin' through my dreams
Burn on, big river, burn on
Randy Newman, Burn On
In 1969, the Cuyahoga River in Cleveland caught fire.
The startling spectacle of water catching fire made major news,
and the coverage brought both embarrassment to the city of Cleveland,
and anger to the then-growing environmental movement nationwide.
As with many historical events, there are different
accounts as to what actually happened. Even now, people argue over
whether the fire was fueled by the volatile pollution coating the
river's surface, or simply by rubbish that had collected under a railway
trestle. Most agree that it was a relatively small fire, and that, in
fact, it was not unique-- the river had caught fire twice before, once
in the 1930's and again in the 1950's.
Despite this, the incident had national repercussions.
With the industrialization and development of the mid 20th century,
America's water pollution--symbolized by a burning river--had become
more severe than ever. At the same time, with growing environmental
awareness, the public was less willing to tolerate it. In a press
release on the 30th anniversary of the fire, American Rivers noted
"Never before had an image so thoroughly driven home the
deteriorating plight of our nation's waterways."(1)
Spurred by stories like the Cuyahoga fire, the federal
government began to re-examine its role in addressing water pollution.
As a result, in 1972 Congress passed major legislation, commonly known
as the Clean Water Act (CWA), to regulate discharges into bodies of
water and to support the improvement of water quality. Thirty years
later the CWA and its subsequent amendments remain a centerpiece of U.S.
environmental policy.
In the next three issues we will look at the Clean
Water Act and how it has affected environmental affairs in America over
the past 30 years. The CWA is now part of a vast administrative
apparatus, and impacts on a broad range of American economic and social
institutions. Seen by many as a great success, criticized by others for
being either too strict or too permissive, it nevertheless seems likely
that it will be the foundation of water pollution policy in the U.S. for
the foreseeable future.
II. A New Standard for Water
Looking back from our vantage point in the 21st
century, 1972 seems like a different age. The Cold War defined
international politics, American involvement in Vietnam divided the
nation, the scandal that would be known as Watergate had barely emerged.
Home computers, cable television, VCR's and cell phones were all still
the stuff of science fiction.
Environmental conditions were also in a different age,
particularly where the nation's bodies of water were concerned. For
example, while the Cuyahoga fire was an isolated and probably freak
occurrence, the larger problem was that two thirds of the nation's
rivers were too polluted for swimming and fishing. Lake Erie was in poor
enough condition that some called it "dead", while the
Chesapeake Bay was seeing a precipitous decline in its once-bountiful
seafood harvest.
In cities around the country, polluted rivers were
part of the landscape. The Delaware through Philadelphia, the Charles
River in Boston, and the East River bordering Manhattan were all seen as
severely damaged and unusable for drinking water and recreation. Many of
them contained a witch's brew of pollutants--coliform bacteria,
synthetic organic chemicals, petroleum by-products, too name a few. Even
without rivers catching fire, there were plenty of disturbing trends in
the quality of the nation's surface water.
Other factors were also negatively influencing water
quality. We now know that wetlands play a crucial role in removing
pollutants, controlling floods and promoting aquatic biodiversity. In
1972, science was still in the early stages of understanding these
functions. Lacking this awareness, the U.S. was destroying wetlands at a
rate of almost half a million acres per year.
Also of particular concern at that time was the
treatment of wastewater--sewage--that in some jurisdictions was still
being dumped directly into waterways. Only about half the population of
the country was being served by "secondary" wastewater
treatment facilities--that is, by treatment designed to remove organic
matter from discharged sewage.
Thus, although decades had passed since the so-called
"Great
Sanitary Awakening," (when municipalities first undertook
wastewater management), many of the nation's rivers and streams still
served as de facto cesspools. In some cities, rivers were off limits for
recreation; the Connecticut River was described facetiously as "the
best-landscaped sewer in the country." And just thirty years ago,
raw sewage flowed through the nation's capital, with the Potomac River
"plagued" by "disease-causing bacteria and nuisance algae
blooms…Fish kills and public health warnings were common."
Despite this situation, the Federal government had
been reluctant to take regulatory steps. Legal precedent held that water
quality was a state responsibility, and that the federal government was
constitutionally restricted to legislation that dealt with interstate
water issues. Nonetheless, even as early as 1898 Federal legislation had
been passed designed to limit discharges into interstate waterways,
indicating that water pollution has been recognized as a national
concern for a long time.
In 1948, the Federal Water Pollution Control Act (FWPCA)
set the stage for future legislation. (In fact, the bill ultimately
known as the Clean Water Act was actually a set of comprehensive
amendments to the FWPCA.) According to the U.S. Environmental Protection
Agency (EPA), the FWPCA took several
important steps in defining federal policy on water pollution.
First, it established a clear "national interest
in abating water pollution," suggesting that legal thinking was
beginning to expand federal responsibilities. At the same time, the law
reiterated the state responsibility for enforcing and administering
specific water standards. Finally, it developed a new set of
partnerships and activities involving state and federal governments in
policing interstate pollution. This set a precedent for relationships
that would become much more important after passage of the CWA.
From 1948 to 1972, the Congress passed several laws,
such as the Water Pollution Control Act of 1956, the Water Quality Act
of 1965, and the Water Quality Improvement Act of 1970, all of which
broadened the Federal role in protecting water quality. Each of these
laws were designed to promote action at the state level, first by
issuing grants to improve water treatment and, later, to induce states
to set water quality standards. While the federal government did not
attempt to directly enforce standards, it made receipt of federal money
dependent on states meeting certain requirements.
Science, however, was beginning to suggest that more
proactive measures would be needed to improve the nation's water
quality. In 1947 researchers in Pennsylvania, led by Dr. Ruth Patrick of
the Academy of Natural Sciences,
began to develop techniques for evaluating the overall ecosystem of
streams, giving far greater insights into water quality than had been
obtained by methods up to that time. "So far as we are aware,"
according to Dr. Patrick's original report, "this is a new approach
to the problem (of measuring environmental impact)."
In the past, water quality studies had concentrated on
the presence of particular contaminants or on populations of specific
organisms, usually fish. What made the Academy's approach new was the
recognition that ecosystem health depended on having a variety of
species in each portion of the stream's food web.
By examining the microbes, detritus and algae, as well
as the organisms that feed on these (and, in turn, the organisms that
feed on them), it is possible to determine the relative health of the
ecosystem. When streams are stressed by pollutants and other changes,
the diversity of organisms will drop. The drop in diversity can cause an
imbalance in the energy and materials flow of the ecosystem. The result
will be a stream that reflects low water quality and poor environmental
characteristics.
The use of the ecosystem approach ushered in a new age
of water quality monitoring. By examining the whole system, and looking
at how the condition of the water affected the interactions of groups of
organisms, it was possible to develop a more nuanced and sophisticated
view of water quality. The result was a realization that the condition
of America's waterways required aggressive attention.
Thanks to new techniques such as ecosystem monitoring,
it was becoming widely recognized that water pollution remained a
problem on a national level. Despite past legislative efforts,
enforcement was seen as unwieldy and erratic, and, most importantly,
water quality was not improving. By 1972, there was a growing consensus
that the federal government needed to become more aggressive in how it
approached water pollution. For that reason, according to the
Congressional Research Service (CRS),
the FWPCA was "totally revised" by the 1972 amendments. The
legislation "did not continue the basic components of previous laws
as much as it set up new ones."(2)
The goals of the new laws are described as
"optimistic and ambitious." Their requirements included:
¨ Treatment of all municipal and
industrial wastewater;
¨ Federal funds to assist in for
municipal treatment plant construction;
¨ New enforcement procedures;
¨ Expansion of the federal involvement in
setting policies to be enforced on the state level.
The CWA is a long and complex piece of legislation,
and includes a variety of amendments related to specific regions, or, in
some cases specific pollutants. The overall emphasis, however, was on
addressing the fact that waterways had become unable to support the
aquatic life and ecological functions on which both humans and nature
depended.
It was also long and complex, in part, because
"pollution" and "water quality" can be relative
terms. Types of contamination and levels of contaminants may have
different impacts depending on the uses to which a body of water is put
and the sensibilities of the affected public.
In general, however, the law has two principle
components - the funding of water treatment, and the setting of
standards for industrial and municipal discharges. The latter component
has been the most important in defining U.S. water pollution policy
III. Key concepts in the legislation
In mandating water standards, the CWA introduced
several new concepts. Many of these involve terms and ideas that were
unheard of in 1972, but have now become central to the implementation of
water pollution policy.
The first of these is stated clearly in the opening
paragraph of the law: "the objective of this [legislation] is to
restore and maintain the chemical, physical, and biological
integrity of the Nation's waters." The notion of waterways
having "integrity," particularly biological integrity, has
been a subject of interpretation and debate to which we will return in
Part 2. For now suffice it to say that the introduction of the term
indicated a goal of restoring waters to some condition free of human
impact.
To move towards this rather vague goal of
"integrity," the legislation sets several concrete objectives.
Among these were that the federal government would provide aid for the
construction of wastewater treatment facilities and that the discharge
of untreated pollutants into "navigable waters" would be
eliminated by 1985.
It also called for meeting an intermediate step of
having "water quality which provides for the protection and
propagation of fish, shellfish, and wildlife and provides for recreation
in and on the water be achieved by July 1, 1983." These goals, in
general, are commonly referred to as having waters that are "swimmable
and fishable."
One of the most important steps taken in the Clean
Water Act was the statement that, with defined exceptions, "the
discharge of any pollutant by any person shall be unlawful." Though
this proved to be an unreachable goal, it did provide a mechanism for
controlling and monitoring discharges. The effect was not to outlaw all
pollution, but to require that any discharges of pollutants must be done
under a federal permit, administered under the National Pollution
Discharge Elimination System (NPDES).
The NPDES permitting system allows the federal and
state regulators to set standards and monitor discharges of pollutants
while at the same time permitting industrial and municipal operations to
continues. By setting this standard at a federal level, it has become
comprehensive throughout the entire nation. According to the CRS,
"more than 65,000 industrial and municipal dischargers must obtain
permits from EPA (or qualified states)" under the NPDES
requirements.(3)
At the foundation of the NPDES permitting process are
specific water quality standards set by the federal and state
governments. The CWA employs two sets of standards--the so-called
technology-based effluent standards and the overall water quality
standards that are independent of the particular discharge point.
The first of these standards is based on the expected
effluent levels that would be achieved using the "best available
technology"(BAT) in industrial discharges or using "secondary
treatment" in municipal discharges. These effluent levels and the
technology for achieving them are incorporated into the NPDES permit,
and must be met and maintained by specific deadline. It is up to the
company or municipality to maintain monitoring records; for operations
to continue, the permit must be renewed every five years.
This process of requiring particular levels of
effluent based on technical innovations has been labeled, (both
positively and negatively) as "technology forcing." This is
particularly evident in that the CWA required dischargers to move from
"best practicable technology" at the onset of the legislation
to the more stringent BAT requirements as the legislation matured.
In addition to the technology-based standards, each
state is required to develop, with federal approval, water quality
standards which recognize the major uses of each water body and the
levels of pollutant that will not interfere with those uses. These
standards are meant to supplement the technology based standards and may
require additional controls on effluents, above those stated on NPDES
permits, if quality standards are not met for specific bodies of water.
These water quality standards are just one example of
the federal and state connections that run through the CWA. Though the
Act asserts a federal mandate in regulating water pollution, there is
still a recognition that individual states must take the lead in setting
and enforcing standards. "It is the policy of the Congress to
recognize, preserve, and protect the primary responsibilities and rights
of States..." according to Section 1251 of the CWA.
The Act "embodies a philosophy of federal-state
partnership in which the federal government sets the agenda and
standards for pollution abatement, while states carry out day-to-day
activities of implementation and enforcement." (4)
NPDES permits, for example, are currently issued by state agencies in 43
of the states.
Similarly, though the federal government can take both
civil and criminal actions to enforce the CWA, most enforcement
activities are carried out by states, as they have the resources for
regular monitoring. This process is overseen by the federal government,
however, which has the authority to undertake enforcement if the state
actions are not considered adequate.
Another new concept that would become codified by the
CWA was recognizing the importance of wetlands. This provision, often
referred to as Section
404 of the CWA, specifically prohibits the discharge of "dredge
or fill material into the waters or wetlands" of the U.S. While,
again, this does not have the effect of outlawing all such discharges,
it does require a permit (in this case from the Army Corps of Engineers)
in order for such dredging or in-filling to take place. The regulations
related to this section set stringent requirements on operations that
would destroy wetlands. This section of the law has been one of the most
controversial, with particular conflict over the definition of wetlands
and the size of the parcels that should be covered by the law.
Finally, in addition to new regulatory and enforcement
standards, the other major provisions of the Clean Water Act are for
appropriation of funds for the construction of public wastewater
treatment projects. Because of the importance of treatment in dealing
with municipal wastewater, and because of the high cost of such
treatment, the CWA specifically calls for both federal grants and loans
to state government to assist with constructing wastewater facilities.
According to Subchapter II of the CWA, the
distribution of grant money is determined by a formula based on state
population and the estimate of each state's wastewater treatment needs,
as determined by the EPA. Projects were only funded if they involved
secondary or "more stringent" standards of treatment.
Funding was initially provided to cover up to 75% of
construction costs, then reduced to 55% after 1984. Additional money was
made available to cover "innovative or alternative" treatment
methods. This has been a costly process--thus far 69 billion dollars
have been appropriated under Subchapter II--and several attempts have
been made in Congress to reduce or remove the flat grants of money to
states for wastewater facilities.
Besides direct funding, money was also made available
to a state "water pollution control revolving fund." These
funds are established according to federal guidelines, and are designed
to become self sustaining. They are intended for making long term, low
interest loans to municipalities and other public agencies to fund
construction and other costs related to wastewater treatment. States are
required to match the federal contribution.
To summarize, the Clean Water Act totally re-defined
the environmental regulatory landscape in the U.S. With the use of new
concepts and a new expectation of technological development, with a
blanket prohibition of discharges and a commitment to spending large
amounts of money, the CWA completely altered the nation's water
pollution policy. It introduced an entirely new set of criteria for
government action in limiting discharges into waterways. Over the next
30 years, the law would guide a variety of major efforts to promote
changes in the American environment.
IV. The unexpected role of litigation
Still, implementation of the CWA has not been without
its problems. In part this is because of the breadth and detail of the
law: hundreds of thousands of NPDES permits have been issued since 1972;
hundreds of billions of dollars have been spent in constructing and
upgrading water treatment. Wetland protections apply to millions of
acres of land while the monitoring of waterway "integrity"
continues to absorb large amounts of money and labor.
Because so many people are impacted by the CWA--either
positively or negatively--there are a variety of reactions to the
implementation and enforcement of the act. Businesses and municipalities
have, for the most part, adapted well to the requirements, and the
result has been an on-going improvement in water quality. At the same
time, there is no denying that the regulations are burdensome, adding
cost that some interests may not feel they can or should bear.
On the other hand, many environmental advocates (as
well as specific communities with environmental issues) feel that the
law has not been enforced strenuously enough. There are criticisms that
insufficient money has been appropriated to support the legislation and
that regulators have been slow in enforcing the letter of the law.
Supporters of the legislation and those in government often counter that
environmentalists have "insufficient recognition of EPA's and
states' need for flexibility to implement the Act."
The result of these disputes has been a variety of
civil lawsuits, either against individual polluters or calling on state
or local agencies to proceed with greater stringency in one or another
area of regulation. This element of civil action was in fact,
specifically anticipated in the CWA itself, with provisions that define
the rights of citizens to bring actions.
Thus, according to the wording of the Clean Water Act
"any citizen may commence a civil action" against any person
or government agency "alleged to be in violation of an effluent
standard or limitation under this chapter." Furthermore, the Act
explicitly states that suit can also be brought against "the [EPA]
Administrator where there is alleged a failure of the Administrator to
perform any act or duty under this chapter." The district courts
are given jurisdiction "to enforce such an effluent standard or
limitation…to order the Administrator to perform such act or
duty."
Given the diffuse enforcement responsibilities in the
Clean Water Act, it was anticipated that civil litigation will come into
play when there is a public sense that government is not moving
aggressively enough. The law includes a process for individual citizens
to act as "mini-attorney generals" and file actions when state
or federal agencies have failed to do so.
Ultimately, as one expert notes, "Courts have
recognized that citizen suits play an important role in the enforcement
of this nation's environmental laws."(5)
This has been the case on a variety of issues related to the CWA,
including enforcement of the "total maximum daily load" (TMDL)
requirement for water standards and the management of nonpoint source
(NPS) pollution. (See Part II for further discussion of both of these.)
Nonetheless, this has created a variety of situations
in which conflict and court action have come to define the
implementation of the CWA. Understandably, this has met with strong
criticism from those interests that have been the target of such suits.
There has been considerable effort by some defendants to prove that
"citizen-litigators" do not have "standing" i.e., a
legitimate stake in the question.
A recent U.S. Supreme Court decision, Friends of
the Earth vs. Laidlaw Environmental Services, however, reinforced
the rights of citizen action in enforcing the CWA. By a 7-2 majority,
the Court ruled that citizens could bring suit even if they were not
directly affected by the pollution, and that damages could be awarded in
the form of payment to the regulating agency. In other words, even if
the plaintiff did not have grounds to be awarded damages, their
litigation could result in penalties being assessed.
Reactions to the Laidlaw case demonstrate how
different stakeholders are divided on this issue. The National
Petrochemical and Refiners Association, an industry group, concluded its
comments with a quote from Justice Scalia's dissent in the case:
"By accepting plaintiffs' vague, contradictory, and unsubstantiated
allegations of 'concern' about the environment as adequate to prove
injury in fact, and accepting them even in the face of a finding that
the environment was not demonstrably harmed, the Court makes the
injury-in-fact requirement a sham."(6)
At the same time, the President of Friends of the
Earth, (the plaintiff in the case) Dr. Brent Blackwelder stated:
"This decision protects citizens' legal right to enforce the Clean
Water Act and other pollution-control laws. The U.S. Supreme Court
rightly moved to preserve one of America's most effective tools for
combating water pollution."(7)
All this is not say that citizens can file suits at
the first sign of water pollution. There is, in most cases, a set
process of notification and investigation involving local, state and
federal water resources agencies. There must be physical evidence, often
involving authoritative studies, demonstrating that a waterway has been
compromised. There must also be evidence as to the source of the
contamination. Nonetheless, the use of citizen litigation does provide a
means of public oversight and a way of determining if the law has been
adequately enforced.
V. Conclusion
In discussing the implementation of the CWA and how
the policies evolved from 1972 to the present, it is important to
remember that this is a broad, sweeping piece of legislation, with many
elements. There are a variety of points at which it is open to conflict
and interpretation, prompting enormous efforts both in litigation and in
legislation. Yet even those who object to some of the provisions of the
CWA are not proposing that it be dismantled.
This is because in many ways the CWA is seen as a
groundbreaking. There is little question that water quality was very
poor when the law was passed, nor does anyone deny that it has seen
considerable improvement. One need only look at some of the
environmental accomplishments associated with the law: annual wetland
destruction has been decreased by 75%; over two thirds of the nation's
rivers are now considered "swimmable and fishable;" the number
of people served by secondary wastewater treatment has more than doubled
since 1972.
Despite the litigation and controversy, the
implementation of the Clean Water Act has proceeded forcefully since
1972. Thousands of wastewater management systems have been constructed
or upgraded, NPDES permits are approved and issued as a routine part of
doing business, waterways are regularly assessed for biological
integrity. The condition of America's waterways have indeed undergone
marked improvement.
In our next two issues we will continue our discussion
of the implementation of the CWA. In particular, we will consider some
of the CWA's most controversial elements, such as the definition and
protection of wetlands and the so-called TMDL standards. Finally, we
will look at the future of the Act, and how this landmark piece of
environmental legislation may be used to address new pollutants and new
challenges as it completes its 30th year in existence.
VI. References
1. American Rivers, June 21, 1999. "Anniversary
of Cuyahoga River Burning." Press Release.
2. Copeland, C., 1999. "Clean Water Act: A
Summary of the Law." Congressional Research Service Report for
Congress. RL30030.
3. Copeland, 1999. Cited above.
4. Copeland, 1999. Cited above.
5. Russo, S., 1995. States, citizens, and the Clean
Water Act: State administrative enforcement and the diligent prosecution
defense. New York University Environmental Law Journal, Vol. 4 Issue 2.
6. Scalia dissent from Friends of the Earth vs.
Laidlaw Environmental Services, 528 U.S. 167 (2000), quoted in
"A Lever that Will Move the World," NFRA On-Line, Washington
Bulletin, January 28, 2000. On-line: http://www.npradc.org/publications/wb/1-28-00.html.
7.
Friends of the Earth, Jan. 12, 2000. Supreme Court Decision Defends
Public's Right to Clean Water Citizens' Ability to Take Legal Action to
Stop Water Pollution is Protected. Press Release.
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