Saturday, July 29, 2017

Reformism: The Clean Water Act of 1972

Pictured above is the 1969 Cuyahoga River fire in Cleveland, Ohio that is said to have been one of the motivations for the passage of the Clean Water Act of 1972.

“Water does not resist. Water flows. When you plunge your hand into it, all you feel is a caress. Water is not a solid wall, it will not stop you. But water always goes where it wants to go, and nothing in the end can stand against it. Water is patient. Dripping water wears away a stone. Remember that, my child. Remember you are half water. If you can't go through an obstacle, go around it. Water does.” - Margaret Atwood, The Penelopiad

Randy Newman - Burn On (Motivated by the 1969 Cuyahoga River fire)

The Federal Water Pollution Control Act Amendments of 1972, commonly referred to as the Clean Water Act, is one of the most important and far-reaching environmental statutes ever passed by the U.S. Congress. Further, it is still one of the most controversial pieces of legislation ever passed. More than forty years since its passage, key provisions of the act continue to be debated at all governmental levels, and lawsuits frequently are brought to federal courts under the act. To understand why the Clean Water Act remains controversial, it is necessary to review the history of the legislation, its goals, and its methods of achieving those objectives.

Water Quality as a National Interest

The 1972 Clean Water Act represented a radical departure from previous federal water quality legislation. Beginning in 1948, Congress declared it to be in the "national interest" to assure a high level of water quality throughout the United States. It passed additional water pollution control laws in 1956, 1961, 1965, 1966, and 1970.

While each subsequent act was more stringent than the previous ones, they all contained the philosophy that water quality was primarily the responsibility of the states. It was the role of the federal government to assist the states financially, to conduct basic water research, and to maintain water quality in interstate waters, but the creation and enforcement of quality standards for most of the waters in the United State, intrastate lakes, rivers, streams, wetlands, ponds, and the like were left to state and local governments.

Federal Responsibility

The 1972 Clean Water Act abandoned the approach that state and local governments were primarily responsible for ensuring water quality. In the midst of a national environmental movement, whose leaders claimed that virtually nothing had been achieved by relying on state action to reduce water pollution, the 92nd Congress embarked upon a bold new course. Although the 1972 act incorporated some elements contained in previous legislation, such as generous financial assistance to state, tribal, and local governments to construct wastewater treatment facilities, it also charted new waters in federal regulatory policy, and in relations between the federal government and the states.

The Federal Water Pollution Control Act Amendments of 1972, or the Clean Water Act, regulates the release of pollutants into U.S. waterways, such as this stream degraded by chemical contaminants and silt. The legislation signaled a new way of dealing with the nation's water pollution by prohibiting the discharge of pollutants unless the discharger first obtains a permit from the government.

Regulatory Objectives

The regulatory philosophy contained in the Clean Water Act is referred to as the command-and-control, or standards-and-enforcement, method. No longer would the federal government wait for the states to devise their own water quality standards, since few had done so when given the opportunity. Rather, Congress gave this responsibility to a new federal agency, the Environmental Protection Agency. Under authority contained in the 1972 legislation, the EPA had the primary responsibility for implementing the ambitious and optimistic goals of ensuring that all waters of the United States be "fishable" and "swimmable" by 1983, 10 years after the act's passage.

The 1972 Clean Water Act also set as a lofty goal the "zero discharge" of pollutants into the nation's waters by 1985. Congress passed related legislation also at this time to ensure that its intent to cover all waters of the United States was clear. In 1972, Congress also passed the Marine Protection, Research, and Sanctuaries Act, known as the Ocean Dumping Act, and in 1974 they passed the Safe Drinking Water Act. The EPA was given authority to implement these acts, as well.

Rigorous Demands

In order to make as much progress as possible in cleaning up the nation's waters in as short a period of time as possible, the EPA embarked upon what is called a "technology-forcing" regulatory strategy. That is, the agency placed rigorous and rigid demands on those who were regulated by the statute, mainly municipalities and industries at first, to achieve increasingly higher levels of pollution abatement. Industries were told to install the "best practicable control technology" by 1977, and municipalities were told to achieve secondary treatment of their wastewater by that date.

Federal Construction Grants

To assist local governments in meeting these deadlines, the 1972 act also provided for a generous federal grant program to construct modern treatment facilities. Indeed, much of the nation's water quality infrastructure was built in the 1970s, and an issue for today's politicians in Washington, D.C., is whether to make a similar investment in bringing an aging system up-to-date. The EPA has estimated that it could cost as much as $140 billion to accomplish that objective.


The 1972 Clean Water Act has been amended three times, in 1977, in 1981, when Congress passed the Municipal Wastewater Treatment Construction Grants Amendments; and in 1987 with the Water Quality Act. All of these statutes reaffirmed the federal interest in assuring water quality in the United States, but they also recognized the difficulty of achieving the goals set forth in the 1972 act within the time period specified. Thus, timelines were pushed forward, and the rigid command-and-control regulatory approach was modified. It was replaced, in part, by a more flexible approach that stressed partnerships between the federal government and the states, tribal governments, and municipalities in achieving common purposes.

Sources of Pollution

Another important distinction between the original act and the 1987 revision was in its emphasis on the sources of water pollution in the United States. Prior to 1987 most programs were directed at eliminating what is called point-source pollution: that is, discharges into water that are more or less easily tracked to their sources. Pipes and other outfalls are examples of point-source pollution.

By 1987, however, it became clear that a great deal of pollution was coming from nonpoint sources. It was estimated that over fifty percent of the nation's remaining water pollution problems was coming from sources that are not easily identified, such as runoff from agricultural lands, construction sites, urban areas, and even forests.

Under Section 319 of the 1987 legislation, Congress authorized measures to address these diffuse sources of pollution by directing states to develop and implement management programs targeting their major nonpoint sources. Federal grants, covering up to sixty percent of the program costs, also were authorized to assist states in tackling this difficult pollution problem.

Overdue Reassessment?

There has not been a major revision to the Clean Water Act since 1987, and many feel that a comprehensive reassessment of accomplishments and failures is long overdue. The reason that such legislation has been stalled in Congress for so long is that the original 1972 act contained a few highly controversial programs, the most contentious of which may be the national wetlands protection program. Also known as the Section 404 Program, the 1972 act declared a federal interest in the protection of all wetlands in the United States. It set up a complex regulatory program administered jointly by the U.S. Army Corps of Engineers and the EPA under which anyone planning to dredge, drain, or fill a wetland must first secure a permit from the Corps.

The EPA exercises veto authority over Corps decisions, while other federal agencies, in particular the U.S. Fish and Wildlife Service, provide additional input to the process. Although the process has been streamlined and simplified since its inception, it remains controversial for property owners wishing to alter their lands. Certain states, too, have claimed that the program is an unwarranted intrusion into their domain; in contrast, most environmental organizations solidly support it.

Issues of Contention

Over the years, numerous court cases have addressed various issues concerning the wetlands protection program. A 2001 Supreme Court case, Solid Waste Agency of Cook County, Illinois, v. U.S. Army Corps of Engineers, found that federal jurisdiction did not extend to isolated wetlands such as the one Cook County planned to alter. With this important decision, the scope of the national wetlands protection program is reduced and returned to what it was some thirty years ago, at least until Congress revisits this aspect of the Clean Water Act.

Another contentious issue arising out of the Clean Water Act and its revisions involves the setting of precise water quality standards by the states and the EPA. The original act required states to identify pollution-impaired water areas and then develop "total maximum daily loads" for each waterbody. TMDLs are the maximum amount of pollution that a waterbody can receive without violating water quality standards. If the state fails to act, then the EPA is required to undertake this time-consuming and technologically challenging determination.

Most states have lacked the resources to undertake this task, and the EPA has been reluctant to step in and assume responsibility, in part because it, too, lacks the necessary personnel to do the job nationwide. Consequently, since the late 1980s, citizen groups have filed more than forty lawsuits in thirty-eight states against the EPA and the states for failing to implement the TMDL requirement. During the Clinton administration, the EPA attempted to strengthen the enforcement of this program, but with the change in the presidency after the 2000 election, that proposal has been tabled. As with the wetlands issue, scholars and other interested parties note that the time has come for the U.S. Congress to revisit the Clean Water Act of 1972.

The above ironic juxtaposition of two signs on a public beach reveals the complex task that society faces in protecting both land and water quality. The U.S. Environmental Protection Agency has established National Beach Guidance and Performance Criteria for Recreational Waters designed to ensure the public's health and improve environmental protection for beaches. The Clean Water Act restricts discharges of pollutants into the nation's waterways.

Aspirations and Deficiencies

If and when Congress reconsiders this historic piece of legislation, it will want to look closely at what has been accomplished, and by what means. The Clean Water Act is not without its critics. Even the EPA acknowledges that the results are mixed. Today, forty percent of the waters surveyed by the states fail to meet national water quality standards.

Although the Clean Water Act was well intentioned, some scholars have found it to be an instance of flawed public policy-making. Cornell University political scientist Theodore Lowi wrote in 1979 that Congress knew nothing about water pollution when it was writing the act, and so simply mandated a regulatory agency, the EPA, to do whatever it saw fit. This was a recipe for political chaos, Lowi charged, which inevitably would result in the federal courts becoming deeply involved in the water pollution control policy process. Indeed they have, as noted earlier.

Another critic of federal pollution control policy, Barry Commoner, a scientist and spokesperson for the environmental movement for nearly fifty years, wrote in a 1990 book that both the Clean Water and Clean Air Acts relied far too much on "control" and too little on "prevention." Noting that waste, once produced, has to go somewhere, the federal approach has been largely to try to control the effects of municipal, industrial, and agricultural waste production. The EPA should have spent more time working on the causes; that is, in preventing it in the first place, through such measures as recycling, reducing, and reusing, known as "the three Rs" of conservation.

The Clean Water Act of 1972 and its revisions spoke to the highest aspirations of the American people with regard to the environment they wished to inhabit. Although deficient in a number of ways, it nevertheless pointed the direction society needed to take to insure the continuance of a healthy and productive natural environment. The task of politicians today should be to discover more efficient means, including the development of new technologies, in order to achieve the objectives set forth in 1972.

How Does This Relate to Reformism?

Acid Mine Drainage

Acid Mine Drainage refers to the outflow of acidic water from coal or metal mines, often abandoned ones where ore- or coal mining activities have exposed rocks containing the sulphur-bearing mineral pyrite. Pyrite reacts with air and water to form sulphuric acid and dissolved iron, and as water washes through mines, this compound forms a dilute acid, which can wash into nearby rivers and streams. AMD discharges elevated concentrations of acidity, iron, manganese, aluminum, and sulfate into receiving streams and rivers, depleting the buffering ability of water by neutralizing carbonate and bicarbonate ions that form carbonic acid. Streams and rivers with low buffer capacity are not able to neutralize the acid load and consequently become acidic. An estimated 2,390 miles of streams in the Allegheny and Monongahela River Basins have been degraded by AMD to the point of not being able to support fish communities.

Mountain Top Removal and Streams

Mountain Top Removal mining involves the blasting off the tops of mountains to reach the coal seams below, with the millions of tons of former mountains pushed into stream valleys. MTR has buried nearly 2,000 miles of Appalachian streams, contaminated drinking water, impaired water quality for river recreation, increased water treatment costs for industry, displaced some communities, and increased susceptibility to flooding for others. An EPA environmental impact study found that 724 miles (1,165 km) of Appalachian streams were buried by valley fills between 1985 to 2001, and that streams near valley fills from mountaintop removal contain high levels of minerals in the water and decreased aquatic biodiversity.

The 2012 Environmental Science and Technology study "How Many Mountains Can We Mine? Assessing the Regional Degradation of Central Appalachian Rivers by Surface Coal Mining" concluded that decades of mountaintop-removal mining in Appalachia may have harmed aquatic life along more than 1,700 miles of streams in southern West Virginia. Mining companies have converted five percent of the region to mountaintop mines, and the resulting water pollution has caused so many sensitive species to vanish that twenty-two percent of streams may qualify as impaired under state criteria.


Emissions from coal-fired power plants are the largest source of mercury in the United States, accounting for about forty-one percent, 48 tons in 1999, of industrial releases. According to the Centers for Disease Control and Prevention, eight percent of American women of childbearing age had unsafe levels of mercury in their blood, putting approximately 322,000 newborns at risk of neurological deficits. Mercury exposure also can lead to increase cardiovascular risk in adults. When mercury is deposited on land or in water, microorganisms convert part of it to a highly toxic form called methylmercury. When fish and animals eat these microorganisms, the toxins accumulate and can interfere with reproduction, growth, and behavior, and can even cause death.

Thermal pollution

Thermal pollution from coal plants is the degradation of water quality by power plants and industrial manufacturers, when water used as a coolant is returned to the natural environment at a higher temperature, the change in temperature impacts organisms by decreasing oxygen supply, and affecting ecosystem composition. Power plants can also potentially harm fish eggs, larvae, and other aquatic biota in their early stages, as they require particular combinations of fresh water flow and temperature, among other factors, all of which can be impacted by coal plant water usage. In June of 2010, Ohio environmental groups stated that the Bay Shore Plant along Maumee Bay was killing more fish than any other plant on the Great Lakes, costing Ohio $29.7 million annually. The Ohio Environmental Council, the Western Lake Erie Waterkeepers Association, Ohio Citizen Action and other groups were urging the Ohio EPA to make FirstEnergy, the owner of the plant, to install cooling towers at the plant, which touches the Maumee River on one side and the Maumee Bay on the other, in order to reduce the fish kills.

Acid Rain

Coal-fired power plants are the largest human-caused source of sulfur dioxide, a pollutant gas that contributes to the production of acid rain and causes significant health problems. Coal naturally contains sulfur, and when coal is burned, the sulfur combines with oxygen to form sulfur oxides. Acid rain is rain saturated with chemicals like sulfur dioxide and nitrogen oxide, which causes acidification of lakes and streams. Prior to falling to the earth, sulfur dioxide and nitrogen oxide gases and their particulate matter derivatives, sulfates and nitrates, contribute to visibility degradation and harm public health. The use of bagpipes and scrubbers to trap pollutants and toxins from power plant emissions like sulphur creates coal waste that can leach into groundwater and waterways, contaminating drinking water supplies.

Allowable Amount of Pollution

A Total Maximum Daily Load is a regulatory term in the U.S. Clean Water Act, describing a plan for restoring impaired waters that identifies the maximum amount of a pollutant that a body of water can receive while still meeting water quality standards.

The Clean Water Act requires that state environmental agencies complete TMDLs for impaired waters and that the United States Environmental Protection Agency review and approve/disapprove those TMDLs. Further, both state and federal governments are involved in completing TMDLs, the TMDL program is an example of cooperative federalism. If a state doesn't take action to develop TMDLs, or if the EPA disapproves state-developed TMDLs, the EPA is responsible for issuing TMDLs. EPA published regulations in 1992 establishing TMDL procedures. Application of TMDLs has broadened significantly in the last decade to include many watershed-scale efforts, including the Chesapeake Bay TMDL. TMDLs identify all point source and nonpoint source pollutants within a watershed.

Calculating the TMDL for any given body of water involves the combination of factors that contribute to the problem of nutrient concentrated runoff. Bodies of water are tested for contaminants based on their intended use. Each body of water is tested similarly but designated with a different TMDL. Drinking water reservoirs are designated differently from areas for public swimming and water bodies intended for fishing are designated differently from water located in wildlife conservation areas. The size of the water body also is taken into consideration when TMDL calculating is undertaken. The larger the body of water, the greater the amounts of contaminants can be present and still maintain a Margin of Safety. The Margin of Safety is a numeric estimate included in the TMDL calculation, sometimes ten percent of the TMDL, intended to allow a safety buffer between the calculated TMDL and the actual load that will allow the water body to meet it's beneficial use, since the natural world is complex and several variables may alter future conditions. TMDL is the end product of all point and non-point source pollutants of a single contaminant. Pollutants that originate from a point source are given allowable levels of contaminants to be discharged; this is the Waste Load Allocation. Nonpoint source pollutants are also calculated into the TMDL equation with Load Allocation.


Under section 309, the EPA can issue administrative orders against violators, and seek civil or criminal penalties when necessary. For a first offense of criminal negligence, the minimum fine is $2,500, with a maximum of $25,000 fine per day of violation. A violator may also receive up to a year in jail. On a second offense, a maximum fine of $50,000 per day may be issued. For a knowing endangerment violation, i.e. placing another person in imminent danger of death or serious bodily injury, a fine may be issued up to $250,000 and/or imprisonment up to 15 years for an individual, or up to $1,000,000 for an organization. States that are authorized by the EPA to administer the National Pollutant Discharge Elimination System program must have authority to enforce permit requirements under their respective state laws.


What this all basically means is that, much like all of the the legislation that has been already reviewed so far, violators of the law in the United States, if they have the money to take advantage of it, will always have a loophole to get out of trouble. In this case, the Clean Water Act of 1972 allows institutions which are defined by the law to be businesses, state entities, and certain private groups to emit a certain allowable amount of pollution into America's water supplies, to be determined by a complicated and expensive process, for which the real only punishment will be a fine because in cases like this it is next to impossible to prove a case of knowing endangerment violation, i.e. placing another person in imminent danger of death or serious bodily injury, and it is next to impossible for a small person or entity to survive the endless court battle that will ensue to prove their case. See, the government gives to the people in one hand and takes away from them in the other.

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