Clean Water Advocacy - Newsroom - AMSA in the News
No. 202
Friday, October 18, 2002 Page B-1
ISSN 1521-9402
Special Report
Water Pollution
As Water Act Turns 30, Challenges Remain
For Environmental Law Hailed As Success
The Clean Water Act turns 30 on Oct. 18, and those involved with water
quality issues are using the occasion to celebrate its successes and ponder the
remaining challenges.
In analyzing the biggest challenge--how to reduce or eliminate pollution from
nonpoint sources--policymakers also must consider whether the Clean Water Act in
its current form provides the tools to achieve that goal.
Hailed as one of the most successful pieces of environmental legislation ever
enacted, it was prompted in part by a growing national concern for the
environment, a sentiment that intensified with images in the late 1960s of the
Cuyahoga River inferno, a Potomac River too polluted for fishing or swimming,
and a nearly dead Lake Erie.
Sen. Edmund Muskie (D-Maine) was the principle author of the legislation, which
required more than 40 meetings of a House-Senate conference committee to resolve
differences before it was sent to President Nixon for his signature. The debate
on the bill revolved mostly around the cost and the level of federal control.
A '$3 Trillion Mistake'
Leon Billings, Muskie's staff director at the time, told BNA Oct. 9 that Nelson
Rockefeller--then the Republican governor of New York--called the legislation "a
$3 trillion mistake." Muskie retorted that "only Rockefeller would know what a
trillion dollars was," Billings recalled.
Despite the urging of EPA Administrator William Ruckelshaus that he sign it,
Nixon vetoed the bill, asserting it would cost too much at a time when the
nation was at war. Billings speculated that Nixon opposed the bill because of
its regulatory structure.
However, the political climate was ripe for the landmark law, according to
Billings, who now works as a consultant and has been a Democratic member of the
Maryland House of Delegates since 1991. The country at that time was on the
"downside of war" and "young people were looking for a positive cause."
After the House voted to override Nixon's veto, the bill came to the Senate,
where Muskie eloquently made the case for that body to do the same:
Can we afford clean water? Can we afford rivers and lakes and streams which
continue to make possible life on this planet? Can we afford life itself? Those
questions were never asked as we destroyed the water of our Nation, and they
deserve no answers as we finally move to restore and renew them. These questions
answer themselves. And those who say that raising the amounts of money called
for in this legislation may require higher taxes, or that spending this much
money may contribute to inflation simply do not understand the language of this
crisis.
The Senate voted overwhelmingly to override the veto.
Act Had Two Goals
The Federal Water Pollution Control Act of 1972 (P.L. 92-500), as the law is
formally known, was intended to "restore and maintain the chemical, physical,
and biological integrity of the nation's waters."
Two goals were designed to accomplish this. The first was to eliminate the
discharge of all pollutants into the navigable waters of the United States by
1985. The second was to achieve an interim level of water quality that provides
for the protection of fish, shellfish, and wildlife and recreation--the
so-called "fishable, swimmable" goal--by July 1, 1983.
To help accomplish that, the law authorized a huge state grants program whose
purpose was the construction of sewage treatment plants, building on a federal
subsidy program for these public works projects that dated back to the 1948
Federal Water Pollution Control Act (P.L. 80-845). The National Pollutant
Discharge Elimination System permit program was implemented to do just as its
name states--eliminate discharges of pollutants to U.S. waters. A program to set
technology-based effluent limits to control pollution at the point of discharge
was imposed while leaving states primary responsibility over the establishment
of water quality standards.
The law saw two more authorizations with major amendments. In 1987, Congress
amended the act to address excess toxic pollutants in some waters and the
emerging phenomenon of nonpoint source pollution. A notable addition in 1987 was
the establishment with federal money of a permanent financing mechanism to
provide low-interest loans that could be repaid, thereby allowing the fund to
revolve in perpetuity. The 1987 amendments also incorporated provisions to
control stormwater, prevent backsliding of permits, regulate toxic pollutants in
sewage sludge, and address pollution problems in estuaries.
Few disagree about the remarkable achievements of the Clean Water Act in its 30
years.
The Senate Environment and Public Works Committee held a hearing Oct. 8 to look
at the law and discuss future steps. A number of witnesses recalled the
pollution problems of 30 years ago, noting that 60 percent to 70 percent of U.S.
waters were not clean enough for fishing and swimming. Since then, the number of
people served by sewage treatment plants meeting secondary standards has doubled
and the amount of pollution discharged by industrial facilities has plummeted,
EPA officials said.
Even though progress has been made, there is still a long way to go. In its
National Water Quality Inventory: 2000 Report released Sept. 30, EPA estimated
that about 40 percent of waters assessed by states today do not meet water
quality standards. Nonpoint sources are blamed for most of this, EPA officials
have said.
Nonpoint Sources Identified As Major Problem
G. Tracy Mehan, the EPA assistant administrator for water, said at the Oct. 8
hearing that the remaining challenges "come not just from pipes, but from
diffuse sources such as farming and forestry operations, construction sites,
urban streets, automobiles, atmospheric deposition, and even suburban homes and
yards."
Despite broad agreement on the need to tackle nonpoint sources, debate has
turned to whether the responsibility for controlling nonpoint source pollution
rests with the federal government or local authorities assisted by federal
funds. The federalism debate is not unique to the Clean Water Act, and the
response of the major political parties has been predictable: Republicans have
sought to shrink the federal role, while Democrats have sought to expand it.
President Reagan twice vetoed efforts to reauthorize the Clean Water Act in the
1980s largely because of the $18 billion price tag to fund the construction of
wastewater treatment plants. The administration instead wanted to limit future
construction grant authorizations to $6 billion and to phase out all federal
funding for local construction after 1989.
The Reagan administration also opposed an aggressive federal mechanism for
addressing nonpoint sources not related to agriculture. Non-agricultural runoff,
Reagan officials theorized, was the domain of local governments, a position
embraced by the current Bush administration, industry groups, and most state
officials. Current EPA Administrator Christine Todd Whitman has championed
efforts to give states more authority in implementing environmental laws, saying
they know better than the federal government what works and can tailor their
programs to meet their individual needs.
Clinton Addresses Nonpoint Sources
During the Clinton years, EPA made efforts, mostly at the urging of
environmental groups that finally had an ally in the White House, to extend the
federal reach over nonpoint sources that were not related to agriculture and
some that were.
Specifically, some EPA rulemakings designed to revise existing rules were seen
as efforts to redefine nonpoint sources as point sources. The most obvious
example is the July 2000 total maximum daily load (TMDL) rule that sought to
bring--very indirectly--certain forestry and agricultural practices under the
Clean Water Act permitting regime. The ink was barely dry on the published rule
before lawsuits were filed by organizations representing almost every entity
involved in the clean water debate.
Agriculture and forestry groups said EPA did not have the authority under the
Clean Water Act to regulate their nonpoint discharges under the TMDL program.
Rather, best management practices and strategies worked out at the local level
to reduce the impact of their operations on nearby waters are more effective and
less costly than what could be prescribed on a national level, organizations
representing these interests have said.
The TMDL rule has since been pulled back and a new version, crafted by the Bush
EPA, is expected to be reviewed by the White House Office of Management and
Budget soon.
Another instance where it has been argued that the Clinton EPA was trying to
redefine nonpoint sources is in regulations governing discharges from
concentrated animal feeding operations, known as CAFOs.
The Clean Water Act is clear that these facilities are point sources from which
there should be zero discharge except in certain extreme situations. The
proposed rule revising that regulation would extend the definition of a CAFO to
include the surrounding fields where liquefied waste is sprayed. One EPA
official told BNA in January 2002 that to exclude these fields that were serving
as repositories for tons of waste would be "a joke."
CAFO Rule to Be Signed Soon
Critics of the current practice argue that large livestock operations are merely
disposing of their waste by spraying it on fields. Because the concentration of
nutrients is much more than the crops can use, the excess leaches into
groundwater or runs off into surface water, causing a host of problems for the
water body and upsetting the balance of the aquatic ecosystem. The final rule is
expected to be signed by Dec. 15 under a court order, but the agency has not
shared final details with the public.
If the sprayfields are included in the definition of a CAFO, that would mean
they are point sources subject to the NPDES program, which would give
environmental groups an advantage over what they see as a growing environmental
menace. Because the Clean Water Act allows for citizen suits to buttress
enforcement of the NPDES permit program, these groups would be able to sue,
possibly forcing large livestock operations to rethink their waste management
practices.
The same is true for a TMDL rule that industry critics argue would provide a
backdoor approach to bringing forestry and certain agricultural practices into
the permitting program. Many environmental groups see this as the only way to
effectively get at the remaining water pollution problems.
A Trend Toward Informal Accommodations
In her 1999 book, The Morning After Earth Day: Practical Environmental Politics,
author Mary Graham said that the existing framework of environmental laws and
regulations remains, but is accompanied by "a latticework of informal
accommodations to changing problems and changing times.
"Policy instruments are evolving to provide updated means of furthering common
goals in diverse situations," Graham wrote.
Industry groups have said adjustments are needed to accommodate site-specific
situations and to reduce the costs of getting to the next level of environmental
controls. These groups decry what they perceive as the over-prescriptiveness of
federal pollution control programs. Rather, they want EPA to set performance
standards and let them figure out how to meet them in the most cost-effective
way.
Environmental activists and some members of Congress accuse the Bush
administration of trying to weaken some clean water protections while at the
same time not supporting increases in critical areas such as wastewater and
drinking water infrastructure.
Municipal groups, such as the Association of Metropolitan Sewerage Agencies,
have been devoting most of their energies toward pressing the federal government
for more money to address infrastructure needs. They point to EPA's own analysis
released Sept. 30 indicating that about $270 billion over 20 years is needed to
address wastewater infrastructure needs.
Paul Pinault, the association's president, said at the Senate hearing that
without additional federal funding both to build and repair infrastructure and
to meet new Clean Water Act requirements, 90 percent of the burden will fall on
local governments.
"Although operating efficiencies and rate increases can provide some relief,
they cannot and will not be able to fund the current backlog of capital
replacement projects plus the treatment upgrades that will be required in the
years to come," Pinault said.
Bush Administration Opposes Legislation
The administration opposed bipartisan legislation (S. 1961) introduced in the
spring of 2002 that would have reauthorized the state revolving fund with a
commitment of $35 billion over the next five years with the goal of helping
municipalities repair and upgrade their aging infrastructure.
At the Oct. 8 hearing, Sen. James Jeffords (I-Vt.), chairman of the environment
committee, challenged Mehan on the administration's opposition to the bill,
which was amended in committee to include an additional $7 billion in grants to
address sewer overflow problems that occur in wet weather.
EPA officials said that while they supported the goals of the bill, the
authorization levels conflicted with Bush's budget objectives. In other words,
the bill cost too much. Critics of the Bush administration have interpreted this
to mean the president did not support increases for clean water, which one EPA
official said was an unfair characterization.
In fact, the official said, the administration supported huge increases in the
2002 farm bill for the Environmental Quality Incentives Program (EQIP) and the
Conservation Reserve Program. These programs are designed to reward agricultural
interests for being good stewards of their land by implementing buffer strips
and certain farming practices that help reduce the stresses to nearby
waterbodies, namely runoff and excess loadings of phosphorus and nitrogen from
fertilizers.
Mehan told BNA Oct. 11 that the agency may need to reevaluate the Section 319
program in light of the increased funding in the farm bill, because nonpoint
sources include much more than agricultural runoff. Section 319 helps states do
broader watershed planning, but the Clean Water Act does not provide "the full
complement of tools" to deal with nonpoint sources, Mehan said.
"We need a paradigm shift," Mehan said, adding that the legal structure is not
available in the Clean Water Act for a frontal assault on nonpoint sources.
"Maybe what they're telling us is they want us to fix it with different tools
than we used for point sources."
The TMDL program, he said, can get at the nonpoint source problem indirectly,
"but don't get me wrong; it's three steps removed." Moreover, he said, the Clean
Water Act does not provide a way to address air deposition, another form of
nonpoint source pollution.
Opinions vary as to whether Congress should reauthorize the act and incorporate
language clarifying statutory authority to address nonpoint sources and
wetlands, areas that some advocates for change believe are ambiguous.
Billings said the Clean Water Act is "inherently flexible" and that the
controversies are not of a legal nature. Rather, they are disagreements about
implementation. "People are dissatisfied that they can't pollute without a
permit," he said.
Fear Inhibits Effort to Reopen Law
Attempts to open the Clean Water Act to clarify certain implementation issues,
he said, are too often driven by interest groups whose ultimate goal is to
weaken the statute. This distrust is the main reason EPA has not pushed for
reauthorization. Neither the Clinton EPA nor the Bush administration has thought
that reauthorization is even in the realm of possibility.
The fear that wetlands protections would be weakened is the primary reason
behind the opposition to opening the act, EPA and state officials have said.
Congress attempted to reauthorize the act in 1995, but the effort failed in
large part because of concerns about provisions relating to wetlands.
However, industry officials have said the law is unclear on the definition of
wetlands, and it is up to Congress to make it clear. Property rights advocates
and lawyers for developers cite numerous instances where wetland permitting
requirements are not evenly applied, which they say leaves industry without the
certainty needed to conduct business.
In the meantime, the wetlands program is starting to be driven more and more by
lawsuits. In January 2001, the Supreme Court invalidated the Migratory Bird Rule
used to assert federal jurisdiction over isolated wetlands (Solid Waste Agency
of Northern Cook County v. U.S. Army Corps of Engineers,U.S., No. 99-1178,
1/9/01). The court will hear another case in December on whether a developer
violated wetlands regulations when he "deep ripped" his land (Borden Ranch
Partnership v. U.S. Army Corps of Engineers, U.S., 01-1243, certiorari granted
6/10/02).
Act Said to Be Clear on Wetlands
Billings said he did not think the wetlands issue was as unsettled as some would
argue. The Clean Water Act was clear about what waters were covered.
"If it's a tributary that feeds into a tributary that feeds into a tributary
that feeds into a water of the United States, it's covered," he said, adding
that some of the isolated wetlands discussed were not intended to be included.
Those, he said, should be addressed by the states.
Roberta Savage, executive director of the Association of State and Interstate
Water Pollution Control Administrators, said that the act should be reauthorized
in order to clear up certain definitions such as the precise meanings of point
source and nonpoint source. New language could also be incorporated to integrate
the planning functions under the various sections of the act.
Rep. James Oberstar (D-Minn), the ranking member of the House Transportation and
Infrastructure Committee, also believes a legislative fix is needed.
Oberstar, who was the staff director of the committee that shepherded the Clean
Water Act through the House in 1972, told BNA Oct. 16 that he introduced
legislation in the early 1990s that laid out a road map for taking a holistic
approach to watershed management and nonpoint source control.
He said he thinks such a bill would go a long way to resolve some of the
perceived barriers to moving some of the programs forward. However, the bill
went nowhere because supporters were unable to persuade enough moderate
Republicans to endorse it to offset the loss of votes from conservative
Democrats who opposed it. With the House under GOP control, he said, he does not
see any future for the legislation.
Mehan said legislation to reauthorize the act "will not fly" or would require a
"standing army" to get passed.
No Mechanism for Nonpoint Sources
Yet, no federal regulatory mechanism is available to directly address these
nonpoint source issues. Rather the act has a funding mechanism through Section
319 to provide support for states and localities to come up with their own
remedies.
Billings said the original framers of the act sought to address nonpoint sources
through the regional planning provisions of Section 208, provisions that he said
have been virtually ignored. The intent of this section, he said, was the
establishment of metropolitan planning organizations that would develop land-use
plans with an eye toward protecting watersheds. The problem, he said, was that
the people staffing these so-called MPOs were not part of the "clean water
bureaucracy."
Savage said Section 208 envisioned that regulators would do an areawide plan
first to help determine the best locations for the sewage treatment plants and
other infrastructure. The idea was that the money would go to the regional
planning organizations and other groups to help come up with these plans.
However, once this started happening, a federal court ruled that this course of
action was improper and that the money should go to the states for disbursement.
After the funding was diverted to the states, those involved with the Section
208 plans feared that their hard work would wind up on a shelf and not be
implemented, Savage said.
In fact, though, those plans served as important blueprints for the Section 319
plans designed to control nonpoint sources and later for the total maximum daily
load programs that got off the ground in the 1990s, Savage said.
Originally, she said, "208 did not have nonpoint sources as its mission." That
did not occur until the early 1980s, she said, disagreeing with Billings's
interpretation.
EPA Focusing on Watershed Planning
Mehan is building on the watershed planning idea by shifting the focus of
efforts to revise the TMDL program toward the little-used continuous planning
process laid out in Section 303(e). The CPPs, as they are called, would be
developed by the states and would contain plans for addressing pollution
problems on a watershed basis, including best management practices to control
nonpoint sources. Though the new rule has not been sent to the White House for
review yet, EPA is banking on the concept to both facilitate watershed planning
and incorporate incentives programs.
Environmental groups and states remain skeptical that the plan does not have the
teeth to take the next significant bite out of water pollution.
EPA is also pondering a new pollution credit trading policy that Mehan said
would be a cost-effective pollution control tool. Environmental advocates and
others do not support trading as an option because they see it as a way for
polluters to avoid the responsibility of reducing their discharges.
Billings agreed. "All it does is move the pollution around," he said.
He also questioned EPA's initiatives under the TMDL program, calling them "extra
legal." By that, he said, EPA was exceeding its authority in trying to develop
regulatory nonpoint source programs without additional legislation from
Congress.
The Way Forward Remains Uncertain
The 30th anniversary is being celebrated with dozens of activities organized
throughout the United States--including a National Monitoring Day on Oct. 18--to
raise awareness of water pollution issues and to remind the public that clean
water cannot be taken for granted or achieved solely by controls on major
industrial polluters.
But the way forward remains uncertain at this point.
It is difficult to imagine that the interest groups in the clean water policy
arena could be farther apart on how to proceed. Environmental groups and
congressional Democrats are at odds with the administration's regulatory
initiatives, which they say will weaken the act, and they want the
administration to back more funding for infrastructure. And Congress, in
general, remains divided over national water policy.
The death knell for S. 1961, the SRF reauthorization bill, ultimately turned out
to be the 1931 Davis-Bacon Act, a provision requiring that locally prevailing
wages be paid on projects receiving federal funds, and the formula for
allocating funds to states.
A Senate aide told BNA that he thought the Davis-Bacon issue could be resolved
because it has been in most other laws dealing with infrastructure financing.
The SRF bill, he said, was still hung up on the formula, which is still based on
census data from the early 1970s.
Former Sens. George Mitchell (D-Maine) and Robert Stafford (R-Vt.) both
testified at the Oct. 8 hearing and said bipartisanship is absolutely necessary
to move forward with environmental programs, including resolving the funding
allocation formula.
It was in the spirit of bipartisanship that the law was passed in 1972, and it
is only in this spirit that the country can move forward to meet the new
challenges, they said.
By Susan Bruninga