Clean Water Act and amendments

The Laws: Federal legislation designed to improve the quality of surface water throughout the United States

Dates: Enacted on October 18, 1972; major amendments in 1977, 1981, and 1987

The legislation now called the Clean Water Act was largely shaped by the 1972 amendments to the Federal Water Quality Act of 1965, itself an amendment to 1948 legislation. The complex law was further strengthened by later amendments as the American public became increasingly aware of the importance of clean water supplies to the public health.

Before the mid-1960’s government regulation of water pollution in the United States was mostly left up to individual states. The earliest U.S. federal environmental law was the Rivers and Harbors Act of 1899, which prohibited the dumping of debris into navigable waters. Although the law was intended to protect interstate navigation, it became an instrument for regulating water quality sixty years after its passage. The Oil Pollution Act of 1924 prohibited the discharge of oil into interstate waterways, with criminal sanctions for violations. The first Federal Water Pollution Control Act (FWPCA), passed in 1948, authorized the preparation of federal pollution-abatement plans, which the states could either accept or reject, and provided some financial assistance for state projects. Although the FWPCA was amended in 1956 and 1961, it still contained no effective mechanisms for the federal enforcement of standards.

By this period, however, many Americans were recognizing water pollution as a national problem that required a national solution. The Federal Water Quality Act of 1965 amended the 1948 legislation to introduce a policy of minimum water-quality standards that could be enforced in federal courts. The standards applied regardless of whether discharges could be proven to harm human health. The act also significantly increased federal funds for the construction of sewage plants. A 1966 amendment required the reporting of discharges into waterways, with civil penalties for failure to comply. Another amendment, the Water Quality Improvement Act of 1970, established federal licensing for the discharge of pollutants into navigable rivers and provided plans and funding for the detection and removal of oil spills.

The Advent of Modern Water-Protection Legislation

Congress and President Richard Nixon agreed that existing programs were ineffective in controlling water pollution. The resulting Federal Water Pollution Control Act Amendments of 1972 amended the Federal Water Quality Act to establish the basic framework for the Clean Water Act. The centerpiece of the landmark amendments was the National Pollutant Discharge Elimination System (NPDES), which utilizes the command-and-control methods earlier enacted in the Clean Air Act. The premise of the legislation was that polluting surface water is an unlawful activity, except for those exemptions specifically allowed in the act. The announced goal was to eliminate all pollutants discharged into U.S. surface waters by 1985.

In addition to standards of quality for ambient water, the amendments included technology-based standards. Industrial dischargers were given until 1977 to make use of the “best practicable technology” in their industries, and the standard was to be increased to the“best available technology” by 1983. The 1972 act also included stringent limitations on the release of toxic chemicals judged harmful to human health. For members of Congress, the most popular part of the act was the grant program for the construction of publicly owned treatment works (POTWs).

The U.S. Environmental Protection Agency (EPA), created just two years earlier, was assigned the primary responsibility for regulating and enforcing the legislation. The agency could issue five-year permits for the discharge of pollutants, and any discharge without a license or contrary to the terms of a license was punishable by either civil or criminal sanctions. When dealing with a discharge of oil or other hazardous substances, the EPA could go to court and seek a penalty of up to $50,000 per violation and up to $250,000 in the case of willful misconduct. In addition, a discharger might be assessed the costs of removal, up to $50 million. Because of the technical complexity of the law, the EPA for many years relied more on civil penalties than on criminal prosecutions.

The 1972 amendments prohibited the discharge of dredged or fill materials into navigable waters unless authorized by a permit issued by the U.S. Army Corps of Engineers (USACE). Based on the literal wording of the statute, the USACE at first regulated only actually, potentially, and historically navigable waters. In 1975, however, it revised its regulations to include jurisdiction over all coastal and freshwater wetlands, provided they were inundated often enough to support vegetation adapted for saturated soils. The Supreme Court endorsed the USACE’s broad construction of the law. The USACE and the EPA later adopted a rule under which isolated waters that were actual or potential habitat for migratory birds that crossed state lines were subject to the provisions of the Clean Water Act.

The Clean Water Act amendments of 1977, which gave the legislation its current name, focused on a large variety of technical issues. They required industries to use the best available technology to remove toxic pollutants within six years. For conventional pollutants (such as ammonia, pathogens, phosphorus, and suspended solids), businesses could seek waivers from the technology requirements if the removal of the pollutants was not worth the cost. The act further required an environmental impact statement for any federal project involving wetlands, and it extended liability for oil-spill cleanups from 19 kilometers (12 miles) to 322 kilometers (200 miles) offshore.

Later Amendments

The Municipal Wastewater Treatment Construction Grants Amendments of 1981, an important piece of environmental public works legislation, streamlined the municipal construction grants process. This allowed for municipalities to improve their sewage treatment capabilities.

The amendments of 1987, entitled the Water Quality Act, were passed by Congress over President Ronald Reagan’s veto. In addition to increasing the powers of the EPA, the act significantly raised the criminal penalties for acts of pollution. Individuals who knowingly discharged certain dangerous pollutants could receive a fine of up to $250,000 and imprisonment for up to fifteen years. The maximum prison term for making false statements or tampering with monitoring equipment was increased from six months to two years. The most controversial part of the act was its authorization of $18 billion for the construction of wastewater treatment plants. In addition, the 1987 amendments phased out the earlier construction grants program, replacing it with the State Water Pollution Control Revolving Fund. Also called the Clean Water State Revolving Fund, the new program relied on EPA-state partnerships.

The 1987 Water Quality Act also provided state funds for managing and controlling nonpoint source pollution, such as stormwater runoff from urban areas, forests, agricultural lands, and construction sites. Earlier legislation had focused more on pollution from discrete sources, such as industrial plants and municipal sewage facilities, that could be more easily identified and regulated. Roughly half of the nation’s remaining water pollution stemmed from nonpoint sources.

In the wake of the 1989 Exxon Valdezoil spill, Congress passed the Oil Pollution Act of 1990. This legislation strengthened cleanup requirements and penalties for oil discharges.

Ongoing points of contention regarding the Clean Water Act have been its wetlands protection program, the loose interpretation of “navigable waters,” and the EPA/USACE “migratory bird rule.” In a 2001 case, Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, the U.S. Supreme Court found that federal protection under the Clean Water Act did not apply in the case of isolated wetlands such as the area that Cook County, Illinois, planned to use as a landfill. In 2006 the Court also determined that the act was inapplicable in the related cases Rapanos v. United States and Carabell v. Corps of Engineers, which involved two Michigan landowners planning to develop on wetlands. In early 2010 a Clean Water Act amendment was proposed that would replace the phrase “navigable waters” with “waters of the United States.”

Some of the worst causes of water pollution in the United States have been curtailed in the years since the Clean Water Act was overhauled in 1972, even though the act has manifestly failed to achieve its stated goals. The legislators who hoped to render all U.S. waters fishable and swimmable within a decade were clearly overly optimistic. It is probably inevitable that economic prosperity and population growth will mean that water in the United States will never be completely free of pollutants. Since 1972, nevertheless, the American public has become increasingly intolerant of dirty and unhealthful water, and Congress, reflecting public sentiment, has continued to strengthen the Clean Water Act.

Bibliography

Copeland, Claudia. Clean Water Act: A Summary of the Law. Washington, D.C.: Congressional Research Service, 2008.

Finkmoore, Richard J. Environmental Law and the Values of Nature. Durham, N.C.: Carolina Academic Press, 2010.

Freedman, Martin, and Bikki Jaggi. Air and Water Pollution Regulation: Accomplishments and Economic Consequences. Westport, Conn.: Quorum Books, 1993.

"History of the Clean Water Act." EPA, May 2016. https://www.epa.gov/laws-regulations/history-clean-water-act. Accessed from 26 Nov. 2016.

Lazarus, Richard J. The Making of Environmental Law. Chicago: University of Chicago Press, 2004.

Milazzo, Paul Charles. Unlikely Environmentalists: Congress and Clean Water, 1945-1972. Lawrence: University Press of Kansas, 2006.

Ryan, Mark. The Clean Water Act Handbook. 2d ed. Chicago: American Bar Association, 2003.