CLEAN WATER ACT

In the late 1960s and early 1970s, the U.S. government passed a series of pollution control acts designed to clean up and protect the nation's environment. The lawmakers' intent was to reduce the impact of conventional pollutants in the air and on surface waters. Later, lawmakers recognized that toxic pollutants discharged into the water were also dangerous. They took steps to control these, too. One of the results of their efforts was the Clean Water Act (CWA) of 1972, which drew—and continues to draw—a considerable amount of opposition from some manufacturers, many of whom have been assessed large fines for violating it. The law survives today in a strengthened form, even though President Reagan attempted to eliminate it during his term of office.

BACKGROUND OF THE CLEAN WATER
ACT

Any discussion of the CWA must be prefaced with a history of water pollution control laws, particularly the relationship between the Federal Water Pollution Control Act (FWPCA) Amendments of 1972 (also known as the first Clean Water Act) and the 1977 CWA. Anti-water-pollution laws in the United States are by no means new. The Rivers and Harbors Act of 1899, which prohibited the discharge of pollutants or refuse into or on the banks of navigable waters without a permit, set the standard. Twenty-five years later the government passed the Oil Pollution Act of 1924, which prohibited the discharge of refuse and oil into or upon coastal or navigable waters of the United States. After World War II came the Water Pollution Control Act of 1948, a direct predecessor to the CWA, which declared that water pollution was a local problem. It charged individual states with coordinating research activities concerning water pollution problems, with the assistance of the U.S. Public Health Service. Two more acts followed in the next 13 years.

The Water Pollution Act of 1956 contained enforcement provisions that provided for federal abatement suits at the request of state pollution control agencies. The act was amended in 1961 to broaden federal jurisdiction. More importantly, it shortened the enforcement process by stating that where health was being endangered, the federal government did not need permission from affected states to become involved. The federal government continued to expand its powers in the regulation of water pollution through the next two decades.

The Water Quality Act of 1965 set water quality standards enforceable by state and federal governments. The act became the basis for interstate water quality standards. It also created the Water Pollution Control Administration within the U.S. Department of Health, Education, and Welfare. Next came the Clean Water Restoration Act of 1966, which imposed a fine of $100 per day on any polluter who failed to submit reports required by the law.

Four years later, the federal government passed the Water Quality Improvement Act of 1970, which prohibited the discharge of harmful quantities of oil into or upon the navigable waters of the United States or its shores. The act applied to both offshore and onshore facilities and vessels. It also provided for regulation of sewage disposal from vessels. All of these acts combined still left gaps open in the overall regulatory system. So, the government enacted the Federal Water Pollution Control Act (FWPCA) Amendments of 1972, which mandated a powerful federal-state campaign to prevent, reduce, and eliminate water pollution. This was by far the most sweeping of the federal anti-water pollution laws.

GOALS OF THE FWPCA AMENDMENTS

The amendments to the FWPCA had two aims: to reduce the pollution of free-flowing surface waters and protect their uses and to maintain the quality of drinking water. The need to protect the nation's drinking water grew from the realization in the mid-1970s that over half of the country's drinking water was being threatened by contamination from such sources as underground storage tanks, fertilizers and pesticides used in farming, and the ever-growing number of hazardous waste sites. It was only a matter of time before experts connected the problems affecting the nation's drinking and surface waters. Thus, the government turned its attention to regulating the quality of surface waters, too.

The federal government set fairly specific calendar deadlines by which changes in water pollution should be effected. According to the amendments, by I July 1983, water across the nation should be clean enough for swimming and other recreational uses—and for the protection and propagation of fish, shellfish, and wildlife. By 1985, the government hoped to eliminate the discharges of pollutants into U.S. waters. The second deadline proved elusive. Businesses of all types are still discharging pollutants into water, sometimes deliberately and sometimes inadvertently. Nonetheless, the government has made significant headway in preventing the discharge of pollutants from water and eliminating those that do enter it. That is due in part to the stringent demands of the FWPCA amendments.

The amendments established a national pollutant discharge elimination system (NPDES), which required permits for all point sources of pollution—i.e., those which are evident, confined, discrete places through which pollutants enter the water—thus providing the first major direct enforcement procedure against polluters. The system mandated that it is illegal for any industry to discharge any pollutant into the nation's waters, unless it has an NPDES permit. The amendments also made abundantly clear what constituted a pollutant and what was excluded.

Pollutants covered under the permit included solid waste; incinerator residue; sewage; garbage; sewage sludge; munitions; chemical wastes; biological materials; radioactive materials; heat; wrecked or discarded equipment; rock; sand; cellar dirt; and industrial, municipal, and agricultural wastes discharged into water. Among the pollutants not included under the permits were discharges of sewage from vessels; water, gas, or other material injected into oil or gas wells; and dredged or fill material. All exclusions were covered by other pollution control regulations. The federal government took seriously its responsibility to control pollution. So did the individual states.

By 1988, 39 states were issuing permits under the NPDES structure. The Environmental Protection Agency (EPA), formed in 1970 from 15 separate components of 5 executive departments and independent agencies, issued permits in the other states and on Native-American reservations. Occasionally, conflicts arose between the EPA and state regulations, which confused and infuriated some businesspeople, but they were ordinarily resolved on a case-by-case basis. The permit system laid out exactly what any industry could or could not discharge into water.

The permits issued regulated what could be discharged. Furthermore, the EPA mandated that industries must monitor their waste and report on discharges and comply with all applicable national effluent limits and with state and local requirements that may be imposed. For facilities that could not comply immediately, the permit allowed for a firm schedule of dates by which they had to reduce or eliminate pollutants. Many business leaders saw these mandates as an unnecessary intrusion of government on private rights. Eventually, some members of government, notably President Ronald Reagan, agreed. But that disagreement did not come until the late 1980s. In the meantime, the federal government continued to closely scrutinize the surface water pollution problem in an effort to eliminate it as quickly as possible.

THE PROBLEMS AFFECTING SURFACE
WATER

Ordinarily, water is capable of cleansing itself of impurities through the use of its oxygen. It cannot complete the task, however, when the quantity of wastes exceeds its capacity to assimilate the pollutants. In such cases, the oxygen simply cannot break down the organic pollutants. In other cases, excessive nutrients from agricultural activities and municipal sewage can cause entropication, a state of ecological imbalance in which algae growth occurs at the expense of other forms of aquatic life. This chemical imbalance can be devastating to the environment.

Abundant algae formations on the surface of water deplete available oxygen and inhibit sunlight from reaching submerged vegetation. That hampers photosynthesis, the process by which chlorophyll-containing cells in green plants convert light to chemical energy and synthesize organic compounds from inorganic compounds, especially carbohydrates from carbon dioxide and water, with the simultaneous release of oxygen. If left unchecked, conditions such as excessive organic pollutants and entropication can choke bodies of water and create serious societal problems. In order to avoid such situations, the federal government took a leading role in passing anti-water pollution laws, especially those pertaining to surface water.

THE CAUSES OF SURFACE WATER
POLLUTION

There are basically six sources of surface water pollution: organic wastes from urban sewage, farms, and industries; sediments from logging, agriculture, and construction; biological nutrients, e.g., phosphates in detergents and nitrogen in fertilizers; toxic substances from industry and synthetic chemicals, e.g., those found in plastics, pesticides, and detergents; acid and mineral drainage from open-pit and deep-shaft mining; and runoff containing harmful chemicals and sediment drained from streets and parking lots. These pollutants can come from point and nonpoint sources.

Point sources include such things as sewer pipes, culverts, and tunnels. Generally, point sources are those that come from industrial facilities and municipal sewage systems. Nonpoint sources, on the other hand, are those which wash off, run off, or seep from broad areas of land. They cannot be identified with much precision. Small amounts of nonpoint sources are generally not harmful to surface water. However, the cumulative effects of all the pollutants that empty from large land areas into single watersheds can be extremely harmful. (A watershed can be either a ridge of high land dividing two areas that are drained by different water systems or the region draining into a river, river system, or body of water.) Perhaps the most common nonpoint sources are acid rain; sediment eroded from soil exposed during construction of buildings, roads, etc.; and pesticides washed off cropland by rainwater. Combined, point and nonpoint sources were having a devastating effect on the nation's environment. The government's concern gave rise to the FWPCA Amendments, but even they were not enough. The federal government amended the 1972 act through the Clean Water Act of 1977, which made over 50 changes to the existing water protection laws. The CWA had an immediate impact on cleaning the nation's waterways.

THE CLEAN WATER ACT OF 1977

The most significant change provided by the CWA from a business standpoint was in the classification system of industrial pollutants and the establishment of new deadlines. The changes placed a greater emphasis on the control of toxic pollution, which had become an increasing problem in the United States.

Toxic substances such as heavy metals and synthetic chemicals posed a serious threat to the nation's water. Their proliferation led to a steady decline in water quality. The amendments paid particular attention to this problem. The CWA of 1977 added several new categories of pollutants to the federal guidelines. Among them were conventional, toxic, and nonconventional pollutants.

Conventional pollutants include biological oxygen demand, suspended solids, fecal coliforms, acidity, and other pollutants designated by the EPA. According to the CWA, industries had to install the best conventional technology available as quickly as possible to control these pollutants.

Toxic pollutants included an "initial list" of toxic substances that the EPA could add to or subtract from at its discretion. To control these pollutants, the EPA allowed industries to install the best available technology not later than three years after a substance is placed on the toxic pollutant list to control toxic substances.

The category that drew the most opposition from industry leaders was nonconventional pollutants, which was a catch-all category. It included "all other" pollutants, i.e., those not classified by the EPA as either conventional or toxic. According to the law, the treatment for pollutants in this category was the installation of "the 'best available' technology as expeditiously as possible or within three years of the date the EPA established effluent limitations." The EPA did allow a modification of these requirements under certain circumstances. Modifications aside, the CWA has had a positive effect on surface water pollution.

By 1992, there were an estimated 48,400 industrial facilities and 15,300 municipal facilities that had NPDES permits. The EPA estimated that at least ten percent were out of compliance with their permit conditions. Therefore, they were subject to federal and state enforcement action, which can range from informal telephone calls to formal judicial proceedings and heavy fines. Despite the EPA's success in bringing businesses into compliance with the CWA and its threats to induce companies in noncompliance to comply, there is still considerable opposition to its activities.

OPPOSITION TO THE CLEAN WATER
ACT

Opposition to the CWA mounted early in the 1980s and continues today. For example, executives claim that there are too many bureaucratic levels enforcing the act's mandates. There are federal and state mandates, the U.S. Army Corps of Engineers' involvement, and outside groups that interfere in the affairs of business. Thus, compliance is difficult.

Under Section 404 of the CWA, for instance, the Corps of Engineers is authorized to issue dredge and fill permits. The EPA then reviews these permits to ensure that unacceptable adverse impacts do not occur. The EPA may veto a permit, although it rarely does. Indeed, the EPA has only vetoed six permits in the southeastern United States since 1972. Yet, the possibility does exist, and that, business leaders argue, can lead to excessive costs for companies to satisfy EPA requirements.

Crown Butte Mines Incorporated spent $35 million to explore a new mine site in Montana near Yellowstone National Park and to obtain the necessary EPA permits. Still, a coalition of nine Montana and Wyoming environmental groups initiated a lawsuit against the company to stop the project. Such lawsuits cost companies millions of dollars to defend, with no guarantees that the necessary permits will eventually be provided. That is one example of why so many business leaders complain about excessive bureaucracy in the compliance process.

There is also concern among business leaders that excessive CWA regulations adversely affect profits and eliminate or curb the creation of jobs. That is manifest in the effects of EPA requirements on the printing industry around Memphis, Tennessee. There, job growth has been hindered because the EPA listed the region as a non-attainment area, i.e., one in which water quality does not meet national standards. Companies looking to relocate or expand are reluctant to do so in such areas, which has a negative impact on the local economy. It is estimated that for every 100 jobs created in manufacturing, 64 more service or administrative positions are created. Excessive EPA mandates can curb such growth. They also place entire industries in jeopardy.

In 1994, President Clinton established his administration's intention to phase out the industrial use of chlorine, a plan that could dramatically reduce pollution in the nation's waters. Such a plan, however, if implemented, would have a drastic financial impact on certain industries, particularly paper production. Needless to say, the plan did not sit well with industry representatives.

The plan was based in part on growing evidence that chlorine and chlorine-based chemicals cause cancer and damage to humans' neurological, reproductive, developmental, and immunological systems. Eliminating chlorine and chlorine-related pollutants from the nation's waters, the EPA suggested, would cut down on such health problems. Paper-making industry spokespeople, however, claimed that the process would cost the industry billions of dollars in plant conversions and drive some companies out of business.

They suggested that the EPA was overreacting to the presence of chlorine and chlorine-related products in the nation's waters. Environmentalists entered the argument on the EPA's side. This was one more example of the ongoing debate over the EPA's regulatory powers and the costs to the economy in terms of dollars and jobs. Arguments aside, the EPA believed it was acting judiciously in enforcing the act. In its eyes, there was a crying need for such regulation in the United States, in view of the damage occurring to the nation's water supply. That has long been the EPA's view. In fact, the EPA, through its regulatory power over clean water violations, has even been able to withstand assaults from high-ranking federal government officials—including one president of the United States.

In 1987, Congress approved additional amendments to the CWA by passing a $20 billion bill over President Reagan's veto. The new bill authorized $9.6 billion in grants and $8.4 billion in revolving construction projects for wastewater treatment plants. It also provided for as much as $2 billion to clean up specific lakes, rivers, and estuaries; $400 million in grants to help states plan ways to reduce the toxic runoff from farms and city streets; and funds to eliminate "hot spots" of toxic chemicals in waterways. The money was helpful, but the question was whether it was enough.

SUCCESS OF THE CLEAN WATER ACT

The CWA has made some inroads into curbing water pollution around the United States. According to EPA figures released in 1997, the number of rivers, lakes, and estuaries safe for fishing and swimming doubled in the 25 years after the passage of the first Clean Water Act in 1972. Annual wetlands losses were reduced by 80 percent over the same period, and some forms of agricultural pollution declined as well.

Despite these achievements, however, significant problems still remain. At odds with the EPA's claims of success is evidence from its own data that river pollution has been on the rise since the mid-1980s, largely as a result of agricultural pollution from fertilizers, manure, and pesticides, according to a 1998 analysis published in U.S. News & World Report.

Behind the increase in river pollution is what is known as nonpoint pollution, meaning that it originates in runoff from broad areas such as fields or streets, in contrast to having a specific release point, as is the case with factory effluent. To critics' dismay, the CWA is conspicuously vague about nonpoint pollution, which is hard to pinpoint and control—even though it accounts for as much as 79 percent of all nitrates and 92 percent of all suspended solids that get into surface waters.

A partial list of nonpoint sources demonstrates the difficulty involved in controlling them. Major nonpoint sources include urban storm water; water running off buildings and streets, carrying with it oil, grease, trash, etc.; agricultural, forestry, and construction runoff; and acid runoff from mines.

The Clinton administration's response to the nonpoint pollution crisis was bundled in its multibillion-dollar Clean Water Action Plan of 1998. As part of this remedial initiative, the EPA and the Department of Agriculture created runoff regulations that would first apply only to the largest poultry and cattle operations, a small minority (5 percent) of the total number of such farms. This policy faced stiff opposition from some agricultural trade groups.

ENFORCEMENT POWERS UNDER THE
CLEAN WATER ACT

The EPA has significant enforcement powers under the terms of the CWA. It has the authority to assess fines and seek arrests of individuals found guilty of entering pollutants into water supplies. For example, in August 1998 the steel fabricator Syro Inc., based in Centerville, Utah, agreed to pay $1 million in penalties for pouring wastewater contaminated with zinc down its sewer system in violation of the CWA. Such fines are not unusual.

Often the EPA employs lawsuits to confront alleged violators of the CWA. For example, the village of Oconomowac Lake, Wisconsin, initiated a lawsuit against the Dayton Hudson Corporation. The village alleged that Dayton Hudson had failed to obtain all the permits required under the CWA before it built a $63 million Target Stores distribution center in Oconomowac. A federal judge dismissed the suit on the basis that the company had obtained the necessary permits. Going one step farther, the judge said the village could not sue in federal court under the CWA because any ground-water pollution that could be attributed to the center would not be discharged directly into navigable waters. The village persisted and appealed the decision.

At that point, the EPA tried to join the suit on the village's behalf. The judge, however, disallowed the EPA's intervention. That did not deter the EPA, which was involved in several other similar lawsuits in other states. EPA officials stated that they would possibly join any other lawsuit filed by village officials against Dayton Hudson. For the EPA, joining such lawsuits has become standard procedure, along with the imposition of fines and criminal enforcement as a means of upholding the CWA.

SIDE EFFECTS OF THE CLEAN WATER
ACT

The CWA has had some unpredicted side effects. For instance, it has spurred business for testing and consulting companies. Revenues for commercial environmental laboratories were about $1 billion in 1990 and were expected to reach $2.5 billion in 1999. Energy Laboratories, of Casper, Wyoming, planned to invest $250,000 in new analyzing equipment in 1994 because more and more businesses are utilizing its services to ensure they comply with the provisions of the CWA. The investment came after Energy Laboratories had a record year for sales in 1993.

Caribe Tuna, one of Puerto Rico's three remaining tuna processors, threatened to leave the island for the Far East because of overly strict CWA mandates. Allegedly, the company, owned by Mitsubishi Foods, has violated the terms of its NPDES permit with the EPA. The EPA alleged in a July 1991 lawsuit that on 332 occasions between December 1986 and July 1990 Caribe dumped into Ponce Bay wastewater that exceeded federal CWA limits for lead, chromium hexavelent, mercury, copper, zinc, and fecal coliforms. As a result, the company faced huge fines and other penalties that threatened its survival.

THE CLEAN WATER ACTION PLAN

The Clinton administration's 1998 Clean Water Action Plan is the most significant—and notably nonlegislative—development in U.S. water policy since the 1980s. The five-year, $2.3 billion program addresses a variety of water concerns ranging from wetlands restoration to tighter water quality standards to controlling agricultural runoff pollution. While the administration celebrated the achievements of the CWA, its action plan was an acknowledgment of some of the act's shortcomings as a comprehensive water pollution management code. While environmentalists have called for strict new legislation to curtail nonpoint pollution and other ongoing water problems, the Republican-controlled Congress appeared unreceptive to a major new regulatory program and its funding requirements. In this sense the action plan may be considered an interim program as congressional support germinates for a new round of revisions to the Clean Water Act and related water pollution laws.