Corry Westbrook: The Clean Water Act is Failing and Needs to be Strengthened

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Corry Westbrook
Corry Westbrook was legislative director for National Wildlife Federation for nine years, federal policy director at Oceana for two years and previously worked for the Environmental Protection Agency. She has an MA from George Washington University in Environmental and Natural Resource Policy and a BA from Florida International University. She has worked directly with members of Congress and Administration officials, and their staffs, on the Clean Water Act, public lands, Endangered Species Act, invasive species, appropriations, oceans, energy and efforts to slow climate change, including leading efforts to pass the American Clean Energy and Security Act in 2009.

THE FEDERAL WATER POLLUTION CONTROL ACT OF 1948 WAS THE FIRST MAJOR U.S. LAW TO ADDRESS WATER POLLUTION.

Public awareness and concern for controlling water pollution led to sweeping amendments in 1972 and the law became known as the Clean Water Act (CWA). (1)

The CWA has a fascinating and successful history.

The law was approved by Congress soon after the National Environmental Policy Act of 1969 and the Clean Air Act amendments of 1970. It received overwhelming Congressional support. (2)

The CWA had its roots in a 1956 cruise down the Mississippi River by Minnesota Democrat John Blatnik. While Blatnik was on the river to assess its locks, dams and levees, he saw first-hand the river’s filth. He thought it was a cesspool and went back to Washington determined to do something about it. (2)

Blatnik crafted the Federal Pollution Control Act of 1956 to provide research on the causes and treatment of pollution, funding for wastewater treatment plants, and a conference mechanism for states along major water bodies to agree on pollution limits and cleanups. The bill was passed and signed into law by President Eisenhower. (2)

But the problems were more serious than first thought, so Blatnik drafted a new bill to strengthen federal enforcement powers, step up the construction of wastewater treatment facilities and boost research. The legislation passed the House and Senate, but Eisenhower issued a veto. (2)

“Water pollution is a uniquely local blight,” Eisenhower wrote in his veto message. This theme resounds today in the battle over where authority to stop water pollution should rest. (2)

When President Kennedy took office a year later, expanding the water pollution program was one of his first goals. (2)

“Our nation has been blessed with a bountiful supply of water, but it is not a blessing we can regard with complacency,” Kennedy said in a special message to Congress a month after his inauguration. “To meet all needs — domestic, agricultural, industrial, recreational — we shall have to use and reuse the same water, maintaining quality as well as quantity. In many areas of the country we need new sources of supply, but in all areas we must protect the supplies we have.” (2)

Congress provided a new version of Blatnik’s bill to Kennedy’s desk and it was signed into law.

Burning Rivers

cuyahoga_river_on_fire-2[1]

Unfortunately pollution byproducts continued to flow into whatever water body was nearby. The outdated idea that “the solution to pollution is dilution” ignorantly prevailed. With most water utilities doing only primary treatment on waste by removing solids, but doing nothing to the chemicals before piping it into rivers, lakes and streams, pollution problems persisted. (2)

Massive clouds of soap suds floated down the nation’s waterways. The Potomac River flowed out of the nation’s capital carrying the stench of the 240 million gallons of waste flushed into it each day. Cleveland’s Cuyahoga River oozed, brown and oily, bubbling with gases just below the surface and on June 22, 1969, oil-soaked debris in the river caught fire. The blaze lasted only two hours, but its image resonated with the American public and they demanded action. (2)

Over the next year and a half, Congress held hearings and collected documentation about the technologies that could reduce pollution. Industry began to get behind national standards for pollution control due to practical financial concerns. (2) There was evidence of businesses moving to states that had lower water quality standards and industries, such as 3M, that would find it difficult to move, were unhappy. The American Chemical Society was also a key supporter. (2)

House-Senate Divide

During those early years, the divides most evident today — between Republicans and Democrats, business and environmentalists — were not the ones at play in Congress. The House pushed for a program in which the federal government set standards but let the states handle implementation. The Senate’s version of the legislation set specific deadlines for implementation with less flexibility. (2) The bill remained in conference for 10 months, until a compromise was brokered at the beginning of October 1972. (2)

Nixon’s Veto

President Nixon, who was supportive of the bill’s environmental aims, objected to its $24 billion price tag. He wanted to issue a pocket veto, but Congress did not leave town as expected. According to news reports from the time, Nixon waited until 40 minutes before the bill would have become law without his signature to issue his veto. (2)

Two hours later the Senate voted 52-12 to override, with 17 of the votes in favor coming from Republicans. The House voted 247-23 to override with 96 of the yays from Republicans. (2)

In a nutshell the 1972 CWA:

  • Established the basic structure for regulating pollutant discharges into the waters of the United States.
  • Gave EPA the authority to implement pollution control programs such as setting wastewater standards for industry.
  • Maintained existing requirements to set water quality standards for all contaminants in surface waters.
  • Made it unlawful for any person to discharge any pollutant from a point source into navigable waters, unless a permit was obtained under its provisions.
  • Funded the construction of sewage treatment plants under the construction grants program.
  • Recognized the need for planning to address the critical problems posed by nonpoint source pollution.

Subsequent amendments modified some of the earlier CWA provisions.

Today

Thanks to the CWA, the number of waters deemed suitable for fishing and swimming has doubled in the US. We seldom see pipes dumping raw sewage or chemicals into streams and rivers. When we do, most Americans know it is a violation of the law. However, there are many “flexible” (weak) provisions in the law that allow pollution – as long as the polluter obtained a permit. (3)

And times have changed since the 1970’s. While some states water bodies have significantly improved, especially those in the rust belt, many of Florida’s lagoons, rivers, springs and lakes health has declined. Congress did not anticipate many of our current water pollution problems when it passed the CWA – such as Florida’s population growth and its impact on runoff. (3)

CWA Fails to Address Modern Problems

The failure of the CWA is that it does not regulate some of the water pollution issues that are most damaging today to water bodies in Florida, including those harming the Indian River Lagoon. (3)

FL_IndianRiver[1]

The biggest challenges now are nonpoint source pollution. Nonpoint source pollution is more complicated to regulate because many people and industries are involved. Nonpoint source pollution includes: toxic pollutants that cannot be seen or tasted; runoff from farm fields, such as fertilizers, pesticides and animal waste; runoff from roads and streets; and leaking septic tanks. Another factor not addressed in the CWA are changes brought about by a changing climate. (3)

Nor does the CWA currently address the Lake Okeechobee discharges. Even though the CWA requires a permit to discharge “any pollutant to navigable waters from any point source,” the EPA’s water transfer rule explains that only the initial release of a pollutant into navigable waters, as a whole, requires a permit. Once in the water, the unmodified transfer of polluted water through a system of dikes does not require a permit, according to the EPA. (3)

At least in the short-term, while the state considers redirecting the water south, one way to make improvements would be to attack not the discharges from Lake Okeechobee, but the runoff pollution that flows into the lake. Fortunately, some local governments have started to introduce fertilizer bans during the rainy season, but far more needs to be done. (3)

While fertilizer bans and other local measures seem promising, additional regulation at the local level has serious limitations. The pollution threatening the Indian River Lagoon is a classic case of the “tragedy of the commons”: the incentive for each individual (via lawn or septic tank) or county or farm is to minimize any expense or maximize the production of crops/profit, which depletes the common resource of clean water.

A free rider problem arises because each individual/county/farm has the incentive to continue polluting and enjoy the cleaner water resulting from other individual/county/farm sacrifice or ban or expense. They can also blame each other and stop progress in resolving the problem. In order to solve the pollution problem fully, each individual/county/farm in the region would need to reduce or stop their pollution contribution, and there must be enforcement. (3)

Another avenue for regulating runoff pollution would be through state intervention establishing Total Maximum Daily Loads (“TMDL”) under the CWA. Section 303(d) of the CWA allows states to develop TMDLs in waters that are still in danger, even with technology-based permitting regulations in place. A TMDL specifies the total allowable amount of discharges both from industrial facilities and from agricultural runoff. Florida has produced TMDLs for both Lake Okeechobee and the Indian River Lagoon, but they are hardly as robust as those found elsewhere in the country, such as the Chesapeake Bay. By following an approach like that adopted for the Chesapeake Bay, and lowering the allowable level of runoff in the lake and lagoon, Florida could better motivate reductions in fertilizer use and, therefore, reductions in some runoff pollution. (3)

However, even if Florida were to implement this solution, it would still only be attacking one underlying cause of the problem. Even if all fertilizer runoff were eliminated, the ongoing transfer of water from Lake Okeechobee would continue to desalinize the lagoon and disrupt the local ecosystem. In the long term, Florida and the federal government will need to continue to re-re-engineer Florida’s waterways to find a more sustainable method of flood control. (3)

The CWA needs to be updated and strengthened to address modern problems harming water bodies in Florida and across the nation. It would be nice if Congress would behave as it did in the 1960’s and 1970’s, when they saw a problem and then worked together to solve it. It would be admirable if rather than fight over who is to blame or will be in charge, they actually worked to help Florida protect its most important economic driver: its environment.

Unfortunately Congress is behaving irresponsibly. Rather than produce solutions, the CWA is at the center of a war in Congress over the proper role for federal regulation. A number of amendments have been introduced in the House to return control to the states or otherwise weaken the law. (3)

We need to elect new representatives at the federal level that are willing to work together to strengthen the CWA so we can restore our lakes, springs, rivers and beloved lagoon to health.

  1. http://www2.epa.gov/laws-regulations/history-clean-water-act
  2. http://www.eenews.net/stories/1059971457
  3. http://www.regblog.org/2014/07/02-reichert-mismanagement-of-lake-okeechobee-discharges.html

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