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The Clean Water Act 20 Years Later
By Robert W. Adler, Jessica C. Landman, Diane M. Cameron
ISLAND PRESSCopyright © 1993 Island Press
All rights reserved.
The Need for Clean Water
The Impetus for the Clean Water Act
By the early 1970s, water pollution had reached crisis proportions in the United States. The most dramatic alarm rang on June 22, 1969, when the Cuyahoga River in Cleveland, Ohio, burst into flames, fueled by oil and other industrial wastes.
But the Cuyahoga conflagration was not an isolated accident. In 1971, a task force launched by Ralph Nader issued a detailed report, Water Wasteland, outlining the serious state of U.S. waters. Much of the report was anecdotal, as little comprehensive information existed on the condition of U.S. waters. Yet some data were based on nationwide studies, and the pattern portrayed by Nader's researchers was telling:
The Department of Health, Education and Welfare's Bureau of Water Hygiene reported in July 1970 that 30 percent of drinking water samples had chemicals exceeding the recommended Public Health Service limits. The Detroit River contained six times the Public Health Service limit for mercury.
The Food and Drug Administration (FDA) reported in February 1971 that 87 percent of swordfish samples had mercury at levels that were unfit for human consumption.
A national pesticide survey conducted in 1967–68 by the U.S. Bureau of Sport Fisheries (now part of the U.S. Fish and Wildlife Service [FWS]) measured DDT in 584 of 590 fish samples, with levels up to nine times the FDA limit. In 1969, the FDA seized 28,150 pounds of Lake Michigan coho salmon that had been contaminated.
Indiana's Brandywine Creek was declared unfit for swimming in 1969. The Hudson River contained bacteria levels 170 times the safe limit.
Record numbers of fish kills were reported in 1969. Over 41 million fish were killed, more than in 1966 through 1968 combined, including the largest recorded fish kill ever—26 million killed in Lake Thonotosassa, Florida, due to discharges from four food-processing plants.
A 1966 survey found that almost 2 million acres of shellfishing beds had been closed due to pollution.
Ecologist Dr. Charles F. Wurster, Jr., cautioned, in a recapitulation of Rachel Carson's historic warning in Silent Spring almost a decade earlier, that we could lose fifty to one hundred species of birds by the turn of the century due to toxic chemicals.
A 1968 survey found that pollution of the Chesapeake Bay caused $3 million in losses to the fishing industry, and Federal Water Quality Administration economist Edwin Johnson estimated that water pollution cost the nation $12.8 billion a year.
The Nader report, which thrust water pollution into the light of national media attention, was confirmed by official government sources. In 1971, the Second Annual Report of the President's Council on Environmental Quality (CEQ) paralleled, although in less dramatic language, many of the findings of Water Wasteland. More than one-fifth of the nation's shellfish beds were closed because of pollution, and the annual commercial harvest of shrimp from coastal areas had dropped from more than 6.3 million pounds before 1936 to only 10,000 pounds in 1965. The number of fish reported killed each year from pollution increased from 6 million in 1960 to 15 million in 1968 and 41 million in 1969. According to EPA estimates, almost one-third of U.S. waters were "characteristically polluted," that is, known to violate numeric federal water quality criteria. Less than 10 percent of U.S. watersheds were characterized by EPA as unpolluted or even moderately polluted.
The Vision of the Clean Water Act
Prior to 1972, efforts had been made to address water pollution at both the federal and state levels. The Water Pollution Control Act of 1948 (P.L. 80-845) provided the first federal funds for state water pollution control programs and the first dribble of subsidies for the construction of sewage treatment plants. All of the details, however, were left to the states. Uncle Sam began to subsidize sewage treatment construction more seriously with the Federal Water Pollution Control Act of 1956 (P.L. 84-660), with increasing commitments in 1961 (P.L. 87-88), 1965 (P.L. 89-234), and 1966 (P.L. 89-753). Yearly federal expenditures rose from $50 million in FY 1961 to $1.25 billion in FY 1971, and by 1972, more than thirteen thousand grants had been started in about ten thousand locations.
For the most part, however, enforceable mandates or standards did not back up this increasing flow of federal dollars. No federal requirements were imposed on industrial polluters, and municipal dischargers benefited from federal dollars without any significant accompanying federal controls. Most notably, industries and cities did not need federal permits to discharge wastes into waterways. Enforcement was narrow and infrequent and generally limited to interstate pollution. The only serious effort came in 1965, when Congress created the Federal Water Pollution Control Administration (FWPCA) and required the states to develop water quality standards for interstate waters. Even then, enforcers had to prove that a particular polluter caused violations of these instream standards—no small task given the primitive state of water quality monitoring and science and the crowd of dischargers to most polluted waters.
These early efforts clearly were inadequate to cure the serious ills afflicting the rivers, lakes, and coastlines of the United States. By 1972, the nation was ready for stronger medicine. Senator Ed Muskie summarized the situation as he urged his colleagues to override President Richard Nixon's veto of the 1972 law:
Our planet is beset with a cancer which threatens our very existence and which will not respond to the kind of treatment that has been prescribed in the past. The cancer of water pollution was engendered by our abuse of our lakes, streams, rivers and oceans; it has thrived on our half-hearted attempts to control it; and like any other disease, it can kill us.
We have ignored this cancer for so long that the romance of environmental concern is already fading in the shadow of the grim realities of lakes, rivers and bays where all forms of life have been smothered by untreated wastes, and oceans which no longer provide us with food.
Inspired by these concerns, Congress began the 1972 act with the underlying visions and goals that were absent from previous federal water pollution laws. Most important, Congress declared, "The objective of this Act is to restore and maintain the chemical, physical and biological integrity of the Nation's waters." (This chapter sets forth only the most basic explanation of this extremely complex law.)
The language of this bedrock objective is significant in two critical respects. First, by defining the target in terms of ecosystem integrity, Congress sought not just to stop the bleeding, but to return the patient to full health—to rid our waters of all human impacts that threaten human health and the health of aquatic ecosystems. Second, by insisting that we restore and maintain our aquatic ecosystems, Congress directed not only that we repair damaged waters, but that we actively protect those waters that so far have escaped the impacts of past pollution, that is, that we keep clean waters clean.
Congress also set forth a number of subsidiary and interim goals: "In order to achieve this objective it is hereby declared that, consistent with the provisions of this Act—
1. it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;
2. it is the national goal that wherever attainable, an interim goal of 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;
3. it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited.
The first goal is commonly known as "zero discharge," the second as "fishable and swimmable waters," and the third as "no toxics in toxic amounts."
All of the efforts by EPA and the states to cleanse the nation's waters of pollution were supposed to be driven by these pronouncements, and any fair effort to judge the success of these programs must use them as the "guiding star." Senator Muskie, at least, meant what he said: "These are not merely the pious declarations that Congress so often makes in passing its laws; on the contrary, this is literally a life or death proposition for the Nation. "
As important as the principal objective and the interim goals of the law was Congress's newfound fortitude in supporting theory with on-the-ground controls, spurred by the Senate finding that the prior approach "has been inadequate in every vital aspect." The heart of the law is embodied in section 301, which instructs that no one has a right to use the nation's waters as dumping grounds for pollution: "Except as in compliance with [specific provisions of] this Act, the discharge of any pollutant by any person shall be unlawful." Pollution would be allowed to continue only as required by the limitations of technology and economic achievability. A basic corollary to this principle was that pollution control was to be achieved by reducing pollutants, not by diluting them in receiving waters. This change shifted the burden from the government, which no longer had to prove harm to justify action, to the discharger, which had to explain why the discharge could not be eliminated.
The U.S. Army Corps of Engineers (the Corps, or COE) issued some water pollution control permits under the antiquated 1899 Rivers and Harbors Act, but not in a systematic—and certainly not in a universal—fashion. The essential progress made in 1972 was to require permits for all point sources of pollution and to define tough new requirements for these permits. Municipal sewage dischargers had to provide at least secondary treatment, and industrial dischargers had to meet analogous minimum control levels defined by EPA on the basis of what the "best technology" could achieve. These new baseline obligations, known as "technology-based controls," were intended to achieve across-the-board pollution reduction (and, wherever possible, elimination) and to create a level playing field for most dischargers. An improved version of the water-quality-based controls of the 1965 law remained as an important backstop, however, and all dischargers were required to achieve stricter controls where necessary to assure that water quality standards were met in specific waters. States were required to develop water quality standards for in-state as well as for interstate waters, to identify all waters not meeting these standards, to calculate the additional pollution reductions needed to achieve the standards, and to incorporate these requirements into permits. If a state failed to perform any of these functions, EPA was required to do so instead.
These strict new requirements for discrete dischargers were designed to address some of the goals of the 1972 law—to have "fishable and swimmable waters" by 1983, "zero discharge" by 1985, and "no toxics in toxic amounts." But even in 1972, Congress recognized that much of the country's water pollution came from far more diffuse, nonpoint sources (polluted runoff from farms, streets, parking lots, mining sites, and so on) and that the ultimate objective of the act, restoring the "chemical, physical and biological integrity of the Nation's waters," required a more comprehensive approach. Even the definition of pollution in the 1972 law, "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water," suggested impacts far broader than the release of chemical pollutants from sewers and factories. In section 208 of the new law, Congress urged on EPA and the states a system of comprehensive water quality planning and management. States were to identify all sources of pollution and water-body impairment and to develop a coordinated approach to address these forms of pollution simultaneously. The watershed approach, largely abandoned by EPA and the states in the 1980s, resurfaced as a prominent "new" approach to pollution control as the act passed its twentieth anniversary.
The Clean Water Act has been modified extensively since 1972, most notably in 1977 and 1987. In 1977, for example, Congress expanded and specified EPA's mandate to control the release of toxic pollutants into sewers and surface waters. In 1987, frustrated by slow progress in controlling pollution from diffuse sources, Congress adopted new programs to address polluted runoff from farms, factories, and city streets. In an effort to return to more site-specific, watershed-based planning, it adopted special programs to clean up the Great Lakes (by improving and implementing the 1978 International Great Lakes Water Quality Agreement), the Chesapeake Bay, and seriously impaired estuaries around the country.
None of these changes, however, altered the fundamental objectives of the act to eliminate all forms of pollution and to restore and maintain the integrity of the nation's waters.
The Need to Meet the 1972 Goals
In its fifth annual survey of the best places to live in the United States, Money magazine ranked what the people of this country most want in a city. The highest valued characteristic, even above low crime rate, was clean water. The local leisure activity with the highest rating was access to a lake or an ocean. Both measures indicate the high value placed on the quality of our water resources.
More rigorous surveys underscore the public's concern about water pollution. In a 1992 Roper poll, 77 percent of the respondents agreed that water pollution was one of the "most serious" environmental problems (see Table 1.1). An even higher percentage (79) believed that current water pollution regulations do not go far enough to protect public resources.
A comprehensive review of more than five hundred public opinion surveys conducted since 1974 confirms that the public ranks water quality high among environmental problems (but rejects Money's conclusion that the public views water quality problems as more serious than such societal ills as crime and drugs). According to this survey, most people believe that water quality problems are getting worse, and the percentage of people who share this view has increased since the Clean Water Act was passed.
These responses indicate that the U.S. public understands, at a fundamental level, the importance of clean water and healthy aquatic ecosystems to their lives and welfare. And for good reasons:
The human body is more than two-thirds water; to replenish this supply, we each consume an average of 2 liters of fresh water each day (directly or through other liquids). Water is the most basic component of all of our cells, the supply system for nutrients (through our blood), the garbage disposal for many of our wastes (through urine and perspiration), and a structural and mechanical mainstay for most of our vital organs.
Water is essential to all of our food supplies—to irrigate our crops, to water our livestock, and to spawn and rear our fish and shellfish.
Since all life on earth evolved from the oceans, water fuels all species—plant and animal—and is the most fundamental component of all of our ecosystems, whether we think of them as marine, freshwater, or terrestrial.
Throughout history, water bodies have supported human cultural development, serving as sources of commerce, recreation, and aesthetic and spiritual fulfillment.
Clean water and healthy aquatic ecosystems can provide all of these vital functions and more. Pollution and crippling of our rivers, lakes, and coastal waters, on the other hand, can have devastating effects on our society and our economy. Contaminated drinking water, beaches, and seafood can cause serious illness and even death. Lost or damaged habitat can lead to extinctions or serious declines in species that live in, or depend on, aquatic ecosystems. Chemical pollution can kill large numbers of fish and wildlife, and toxic chemicals, in even small amounts, can cause deformities, reproductive failures, and other adverse effects on many species, including humans. Polluted waters and lost habitat can also severely affect important sectors of our economy—commercial and recreational fishing and shellfishing, water-based recreation and tourism, and waterside land among them.
Excerpted from The Clean Water Act 20 Years Later by Robert W. Adler, Jessica C. Landman, Diane M. Cameron. Copyright © 1993 Island Press. Excerpted by permission of ISLAND PRESS.
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