Clean Water Act (1972, 1977, 1987)

Federal involvement in protecting the nation's waters began with the Water Pollution Control Act of 1948, the first statute to provide state and local governments with the funding to address water pollution . During the 1950s and 1960s, awareness grew that more action was needed and federal funding to state and local governments was increased. In the Water Quality Act of 1965 water quality standards , to be developed by the newly created Federal Water Pollution Control Administration, became an important part of federal water pollution control efforts.

Despite these advances, it was not until the Water Pollution Control Amendments of 1972 that the federal government assumed the dominant role in defining and directing water pollution control programs. This law was the outcome of a battle between Congress and President Richard M. Nixon. In 1970, facing a presidential re-election campaign, Nixon responded to public outcry over pollution problems by resurrecting the Refuse Act of 1899, which authorized the U.S. Army Corps of Engineers to issue discharge permits. Congress felt its prerogative to set national policy had been challenged. It debated for nearly 18 months to resolve differences between the House and Senate versions of a new law, and on October 18, 1972, Congress overrode a presidential veto and passed the Water Pollution Control Amendments.

Section 101 of the new law set forth its fundamental goals and policies, which continue to this day "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." This section also set forth the national goal of eliminating discharges of pollution into navigable waters by 1985 and an interim goal of achieving water quality levels to protect fish, shellfish, and wildlife . As national policy, the discharge of toxic pollutants in toxic amounts was now prohibited; federal financial assistance was to be given for constructing publicly owned waste treatment works; area-wide pollution control planning was to be instituted in states; research and development programs were to be established for technologies to eliminate pollution; and nonpoint source pollution—runoff from urban and rural areas—was to be controlled. Although the federal government set these goals, states were given the main responsibility for meeting them, and the goals were to be pursued through a permitting program in the new national pollutant discharge elimination system (NPDES).

Federal grants for constructing publicly owned treatment works (POTWs) had totalled $1.25 billion in 1971, and they were increased dramatically by the new law. The act authorized five billion dollars in fiscal year 1973, six billion for fiscal year 1974, and seven billion for fiscal year 1975, all of which would be automatically available for use without requiring Congressional appropriation action each year. But along with these funds, the act conferred the responsibility to achieve a strict standard of secondary treatment by July 1, 1977. Secondary treatment of sewage consists of a biological process that relies on naturally occurring bacteria and other micro-organisms to break down organic material in sewage. The Environmental Protection Agency (EPA) was mandated to publish guidelines on secondary treatment within 60 days after passage of the law. POTWs also had to meet a July 1, 1983, deadline for a stricter level of treatment described in the legislation as "best practicable wastewater treatment." In addition, pretreatment programs were to be established to control industrial discharges that would either harm the treatment system or, having passed through it, pollute receiving waters.

The act also gave polluting industries two new deadlines. By July 1, 1977, they were required to meet limits on the pollution in their discharged effluent using Best Practicable Technology (BPT), as defined by EPA. The conventional pollutants to be controlled included organic waste , sediment , acid , bacteria and viruses, nutrients, oil and grease, and heat. Stricter state water quality standards would also have to be met by that date. The second deadline was July 1, 1983, when industrial dischargers had to install Best Available Control Technology (BAT), to advance the goal of eliminating all pollutant discharges by 1985. These BPT and BAT requirements were intended to be "technology forcing," as envisioned by the Senate, which wanted the new water law to restore water quality and protect ecological systems.

On top of these requirements for conventional pollutants, the law mandated the EPA to publish a list of toxic pollutants, followed six months later by proposed effluent standards for each substance listed. The EPA could require zero discharge if that was deemed necessary. The zero discharge provisions were the focus of great controversy when Congress began oversight hearings to assess implementation of the law. Leaders in the House considered the goal a target and not a legally binding requirement. But Senate leaders argued that the goal was literal and that its purpose was to ensure rivers and streams ceased being regarded as components of the waste treatment process. In some cases, the EPA has relied on the Senate's views in developing effluent limits, but the controversy over what zero discharge means continues to this day.

The law also established provisions authorizing the Army Corps of Engineers to issue permits for discharging dredge or fill material into navigable waters at specified disposal sites. In recent years this program, a key component of federal efforts to protect rapidly diminishing wetlands , has become one of the most explosive issues in the Clean Water Act. Farmers and developers are demanding that the federal government cease "taking" their private property through wetlands regulations, and recent sessions of Congress have been besieged with demands for revisions to this section of the law.

In 1977, Congress completed its first major revisions of the Water Pollution Control Amendments (which was renamed the "Clean Water Act"), responding to the fact that by July 1, 1977 only 30 percent of major municipalities were complying with secondary treatment requirements. Moreover, a National Commission on Water Quality had issued a report which recommended that zero discharge be redefined to stress conservation and reuse and that the 1983 BAT requirements be postponed for five to ten years. The 1977 Clean Water Act endorsed the goals of the 1972 law, but granted states broader authority to run their construction grants programs. The act also provided deadline extensions and required EPA to expand the lists of pollutants it was to regulate.

In 1981, Congress found it necessary to change the construction grants program; thousands of projects had been started, with $26.6 billion in federal funds, but only 2,223 projects worth $2.8 billion had been completed. The Construction Grant Amendments of 1981 restricted the types of projects that could use grant money and reduced the amount of time it took for an application to go through the grants program.

The Water Quality Act of 1987 phased out the grants program by fiscal year 1990, while phasing in a state revolving loan fund program through fiscal year 1994, and thereafter ending federal assistance for wastewater treatment. The 1987 act also laid greater emphasis on toxic substances; it required, for instance, that the EPA identify and set standards for toxic pollutants in sewage sludge , and it phased in requirements for stormwater permits. The 1987 law also established a new toxics program requiring states to identify "toxic hot spots"—waters that would not meet water quality standards even after technology controls have been established—and mandated additional controls for those bodies of water.

These mandates greatly increased the number of NPDES permits that the EPA and state governments issued, stretching budgets of both to the limit. Moreover, states have billions of dollars worth of wastewater treatment needs that remain unfunded, contributing to continued violations of water quality standards. The new permit requirements for stormwater, together with sewer overflow, sludge, and other permit requirements, as well as POTW construction needs, led to a growing demand for more state flexibility in implementing the clean water laws and for continued federal support for wastewater treatment. State and local governments insist that they cannot do everything the law requires; they argue that they must be allowed to assess and prioritize their particular problems.

Yet despite these demands for less prescriptive federal mandates, on May 15, 1991, a bipartisan group of senators introduced the Water Pollution Prevention and Control Act to expand the federal program. The proposal was eventually set aside after intense debate in both the House and Senate over controversial wetlands issues. Amendments to the Clean Water Act proposed in both 1994 and 1995 also failed to make it to a vote.

In 1998, President Clinton introduced a Clean Water Action Plan, which primarily focused on improving compliance, increasing funding, and accelerating completion dates on existing programs authorized under the Clean Water Act. The plan contained over 100 'action items' that involved interagency cooperation of EPA, U.S. Department of Agriculture (USDA), Army Corps of Engineers, Department of the Interior, Department of Energy, Tennessee Valley Authority , Department of Transportation , and the Department of Justice. Key goals were to control nonpoint pollution, provide financial incentives for conservation and stewardship of private lands, restore wetlands, and expand the public's 'right to know' on water pollution issues.

New rules were proposed in 1999 to strengthen the requirements for states to set limits for and monitor the Total Maximum Daily Load (TMDL) of pollution in their waterways. The TMDL rule has been controversial, primarily because states and local authorities lack the funds and resources to carry out this large-scale project. In addition, agricultural and forestry interests, who previously were not regulated under the Clean Water Act, would be affected by TMDL rules. As of May 2002, the Bush administration has delayed the rule for further review.

In May 2002 the EPA announced a new rule changing the definition of "fill material" under the Clean Water Act to allow dirt, rocks, and other displaced material from mountaintop coal mining operations to be deposited into rivers as waste under permit from the Army Corps of Engineers, a practice that was previously unlawful under the Clean Water Act. Shortly thereafter, a group of congressional representatives introduced new legislation to overturn this rule, and a federal district court judge in West Virginia ruled that such amendments to the Clean Water Act could only be made by Congress, not by an EPA rule change. Whether or not the fill material rule will remain part of the Act remains to be seen.

As the Federal Water Pollution Control Act marks its thirtieth anniversary, the EPA state and federal regulators are increasingly recognizing the need for a more comprehensive approach to water pollution problems than the current system, which focuses predominantly on POTWs and industrial facilities. Nonpoint source pollution, caused when rain washes pollution from farmlands and urban areas, is the largest remaining source of water quality impairment, yet the problem has not received a fraction of the regulatory attention addressed to industrial and municipal discharges. Despite this fact, the EPA claims that the Clean Water Act is responsible for a one billion ton decrease in annual soil runoff from farming, and an associated reduction in phosphorus and nitrogen levels in water sources. EPA also asserts that wetland loss, while still a problem, has slowed significantly—from 1972 levels of 460,000 acres per year to current losses of 70,000-90,000 annually. However, critics question these figures, citing abandoned mitigation projects and reclaimed wetlands that bear little resemblance to the habitat they are supposed to replicate.

See also Agricultural pollution; Environmental policy; Industrial waste treatment; Sewage treatment; Storm runoff; Urban runoff

[David Clarke and Paula Anne Ford-Martin ]

RESOURCES

BOOKS

Committee on Mitigating Wetland Losses, Board on Environmental Studies and Toxicology, Water Science and Technology Board, Division on Earth and Life Sciences, National Research Council. Compensating for Wetland Losses Under the Clean Water Act. Washington, DC: National Academy Press, 2001. (Full-text available online at http://books.nap.edu/books/0309074320/html/index.html)

PERIODICALS

Kaiser, Jocelyn. "Wetlands Policy is All Wet." Science Now (June 26, 2001): 3.

OTHER

Copeland, Claudia. "Water Quality: Implementing the Clean Water Act." CRS Issue Brief for Congress IB89102 (August 2001). Online at http://cnie.org/NLE/CRSreports/water/h2o-15.cfm

Sierra Club. Clean Water Online [Accessed June 1, 2002]. http://www.sierraclub.org/cleanwater/waterquality/

ORGANIZATIONS

America's Clean Water Foundation, 750 First Street NE, Suite 1030, Washington, DC USA 20002 (202) 898-0908, Fax: (202) 898-0977, Email: , http://yearofcleanwater.org/