Federal Water Pollution Control Act (1948)

Ann Powers

Excerpt from the Federal Water Pollution Control Act

[I]n consequence of the benefits resulting to the public health and welfare by the abatement of stream pollution, it is ... the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States in controlling water pollution, to support and aid technical research to devise and perfect methods of treatment of industrial wastes which are not susceptible to known effective methods of treatment, and to provide Federal technical services to State and interstate agencies and to industries, and financial aid to State and interstate agencies and to municipalities, in the formulation and execution of their stream pollution abatement programs.

The Federal Water Pollution Control Act (FWPCA) (P.L. 80-845, 62 Stat. 1155) of 1948 was the first major law enacted by Congress to address the problems of water pollution in the United States. Legislators had made numerous attempts, totaling over 100 bills, to pass legislation over the previous half century, but without success. By 1948 industrial and urban growth fueled by World War II had led to obvious, and often notorious, pollution of the country's rivers, streams, and lakes, impelling Congress finally to confront the issue. Unfortunately, the act was not well designed and achieved little. It did not generally prohibit pollution, gave only limited authority to the federal government, and provided an extremely cumbersome enforcement mechanism. In 1972 Congress totally rewrote the act to provide adequate protection for the nation's waters.

WATER POLLUTION CONTROL PRIOR TO THE ACT

Before 1948 various minor laws dealt with aspects of water pollution. The only notable one was the Refuse Act, actually a section of the Rivers and Harbors Appropriations Act of 1899. The Refuse Act was not aimed at preventing water pollution but rather at preventing the dumping of materials that might impede navigation. In the five decades following the Refuse Act, waterways continued to be used as a convenient place to dispose of waste. Indeed, waste disposal was seen as a legitimate use of these waters. As a result, substantially more pollutants were being discharged into the nation's waters at a greater rate than the waters could absorb. In the years just prior to World War II, states and municipalities took some steps to deal with water pollution, but the pressure of war production essentially put those efforts on hold.

In the postwar period, attention again turned to the country's polluted waters. It was reported in 1945 that over 3,500 communities pumped 2.5 billion tons of raw sewage into streams, lakes, and coastal waters every day. The Surgeon General warned that, as a consequence, over half of the U.S. population relied on drinking water supplies of doubtful purity. In a report that eventually accompanied the 1948 legislation, the Senate Committee on Public Works declared that "pollution of our water resources by domestic and industrial wastes has become an increasingly serious problem due to the rapid growth of our cities and industries.... Polluted waters menace the public health (through contamination of water and food supplies), destroy fish and game life, and rob us of other benefits of our natural resources" (House Report no. 1829, to accompany Senate Bill 418, 80th Congress, 2d session, April 28, 1948).

Nevertheless, it was difficult to gain political support for a water pollution proposal. Legislators generally considered the control of water bodies a responsibility of the states and viewed federal regulation with suspicion. Still, some conservationists and public officials recognized the need for action at the federal level. After years of failed bills, the 80th Congress in 1948 achieved a legislative compromise with the support of President Harry S. Truman.

LEGISLATIVE DEBATE

Although there was general consensus on the need to clean up polluted water, there was strong disagreement on the extent of waters to be covered, the rights of the states, and the role of the federal government. Some legislators envisioned extending protection not only to interstate waters (waters that came in contact with more than one state), but also to intrastate waters (rivers and tributaries within individual states) that might contribute pollution to interstate waters. They urged that both intra- and interstate waters be protected by a strong federal program with substantial enforcement authorities.

However, the final bill that reached the House floor at the end of the legislative session, under a gag rule permitting no amendments, was far weaker. The legislation applied only to interstate waters, eliminating from protection under the act heavily polluted waters that were wholly contained within one state, and it restricted the role of the federal government. These weaknesses led members of Congress who had worked long and hard on a water protection bill to speak and vote against the legislation. Nevertheless, many proponents of broader legislation felt that a weak bill was better than no bill at all. The bill passed the House of Representatives by a vote of 138 to 14.

PROVISIONS OF THE ACT

Congress declared that the act's purpose was "to provide a comprehensive program for preventing, abating, and controlling water pollution," and that it was congressional policy "to recognize, preserve, and protect the primary responsibilities and rights of the States in controlling water pollution." The act gave individual states most of the responsibility for abating water pollution and encouraged interstate agreements. In addition to preserving states' control of their waterways, the act limited federal authority for the most part to preparing pollution abatement plans and providing support to the states. It established federal technical services and grants to state and interstate government bodies. The law did not specifically prohibit polluting activities, set standards, or limit new sources of pollution.

Although the act did declare pollution of interstate waters a public nuisance subject to abatement, this applied only when water pollution endangered "the health or welfare of persons in a State other than that in which the discharge originates." When this situation occurred, the Surgeon General of the United States was authorized to bring an abatement action, but only after a cumbersome process and with the permission of the state where the pollution originated. This provision gave the states virtually unlimited power to override a federal action to prevent water pollution. Not surprisingly, in the following twenty years there were essentially no enforcement actions filed under the act.

WATER POLLUTION CONTROL AFTER THE ACT

The Federal Water Pollution Control Act was not effective in preventing and abating water pollution. Because of the federal government's inability to require any direct reduction in discharges, pollution continued to increase and the quality of the nation's waters did not significantly improve. However, the act demonstrated both popular and political support for pollution control efforts. It also established the basic framework for water pollution control, which Congress subsequently amended. Congress changed the act six times before completely rewriting it in the 1972 Federal Water Pollution Control Act Amendments. Today the statute is commonly known as the Clean Water Act and bears little resemblance to its 948 ancestor.

See also: Fish and Wildlife Conservation act of 1980; National Environmental Policy Act; Safe Drinking Water Act.

BIBLIOGRAPHY

Barry, Frank J. "The Evolution of the Enforcement Provisions of the Federal Water Pollution Control Act: A Study of the Difficulty in Developing Effective Legislation." 68 Michigan Law Review 1103 (1969–70).

Clean Water Deskbook. Washington, DC: Environmental Law Institute, 1988.

Rodgers, William H., Jr. Environmental Law. St. Paul, MN: West Publishing, 1992.

The Cuyahoga River Fire

On June 22, 1969, an oil slick on the Cuyahoga River, just southeast of downtown Cleveland, caught fire. By the time the fire was extinguished, twenty minutes later, severe damage had been done to two railroad trestles. The cause of the fire was not determined, but an investigation noted that the "highly volatile petroleum derivatives" on the water could have been ignited by sparks from a passing train. The Cuyahoga had seen other fires, including one in 1936 and a fire in 1952 that caused thirty times as much damage as the 1969 fire—in fact, the police chief, William E. Barry, said of the 1969 blaze, "It was strictly a run-of-the-mill-fire." But the 1969 fire caught the attention of the national press, lead by Time magazine, which reported: "Some river! Chocolate-brown, oily, bubbling with subsurface gases, it oozes rather than flows. 'Anyone who falls into the Cuyahoga does not drown,' Cleveland's citizens joke grimly. 'He decays'." The resulting publicity was a significant factor in the passage of important environmental legislation, including the Clean Water Act, and the creation of state and national Environmental Protection Agencies. Today, the Cuyahoga has gone from a complete lack of life forms (not even slugs or leeches could be found in it), to boasting twenty-seven species of fish, including bass and bluegill. The Cleveland riverfront has also been revitalized with bars, restaurants, and riverboats. Still, the Cuyahoga is considered a "recovering system," and officials warn swimmers to stay away. Cleanup continues.