27 ELR 10574 | Environmental Law Reporter | copyright © 1997 | All rights reserved

A Job Half Finished: The Clean Water Act After 25 Years

The author is an attorney with the Natural Resources Defense Council (NRDC) in Washington, D.C. The author thanks Jessica Landman and Peter Lehner for their suggestions. The views expressed in this Dialogue are the individual views of the author and not necessarily those of the NRDC.

[27 ELR 10574]

Congress passed the Clean Water Act¹ on October 4, 1972, by overwhelming margins—unanimously in the Senate² and with a bare 11 dissenters in the House of Representatives.³ Rising on the Senate floor that day a full quarter-century ago, Sen. Edmund S. Muskie (D-Me.), chairman of the Senate's Subcommittee on Air and Water Pollution and leader of the Senate's clean water forces, explained with simple gravity why Congress was about to pass by such large margins such a powerful and unprecedented law:

Our planet is beset with a cancer which threatens our very existence and which will not respond to the kind of treatment that has been prescribed in the past. The cancer of water pollution was engendered by our abuse of our lakes, streams, rivers, and oceans; it has thrived on our half-hearted attempts to control it; and like any other disease, it can kill us.

We have ignored this cancer for so long that the romance of environmental concern is already fading in the shadow of the grim realities of lakes, rivers, and bays where all forms of life have been smothered by untreated wastes, and oceans which no longer provide us with food.⁴

With these strong congressional words and votes, the clean water bill moved to the White House for President Richard Nixon's consideration. As the President pondered the bill, his Administrator of the newly formed U.S. Environmental Protection Agency (EPA), William Ruckelshaus, strongly urged him to sign the legislation, telling him that "we have the technology now to deal with most forms of water pollution. We must make sure that it is used."⁵ Nearly two weeks after the bill's passage, President Nixon returned the legislation to Congress with a veto message. "Cleaning up the Nation's waterways is a matter of urgent concern for me," the President told the Senate.

I am also concerned, however, that we attack pollution in a way that does not ignore other real threats to the quality of life, such as spiraling prices and increasingly onerous taxes. Legislation which would continue our efforts to raise water quality, but which would do so through extreme and needless overspending, does not serve the public interest. There is a much better way to get the job done.

For this reason, I am compelled to withhold my approval from S. 2770, the Federal Water Pollution Control Act Amendments of 1972—a bill whose laudable intent is outweighed by its unconscionable $ 24 billion price tag.⁶

Congressional reaction to the President's veto was swift. The very next day, October 18, 1972, Congress overrode the veto with a mere dozen nays in the Senate⁷ and fewer than two dozen dissenting votes in the House.⁸ The Clean Water Act thus passed into law, ushering in a new relationship between America and its rivers, lakes, and coastal waters.

Two themes emerge from this story of the Clean Water Act's beginning, and they continue in attitudes toward clean water today. The first is widespread public support for extensive measures to improve America's water quality. This support was evident in 1972 in the lopsided congressional margins that produced the Act's passage. If anything, the public constituency for clean water is even stronger and broader today, as measured by such indicia as polling data⁹ [27 ELR 10575] and the strongly negative public reaction to legislative efforts to weaken the Act in the 104th Congress.¹⁰

The second theme is a concern about the financial cost of measures to control water pollution. In 1972, this concern was most evident in President Nixon's veto, and it has remained evident ever since. In 1987, for example, President Ronald Reagan followed in President Nixon's footsteps by vetoing that year's Clean Water Act reauthorization bill largely on grounds of cost,¹¹ a veto that was overridden by Congress nearly as swiftly and surely as President Nixon's veto 15 years before.¹² This concern was also evident in H.R. 961,¹³ the Clean Water Act reauthorization bill that passed the House of Representatives in May 1995,¹⁴ which sought to weaken many of the Act's provisions,¹⁵ and which died in the Senate amid substantial presidential, senatorial, and public criticism.¹⁶

As shown by the overridden presidential vetoes and most recently by the fate of H.R. 961, the widespread public support for measures to protect water quality is generally stronger than public concerns about the cost of pollution control measures.¹⁷ As a result, the Clean Water Act has now had a full 25 years to work its effects, and the result has been a significant decrease in some of the most important and pervasive types of water pollution. At the same time, other types of persistent and damaging water pollution have gone almost entirely unaddressed despite the operation of the Act. The fact that America has taken significant and noticeable steps forward in onelarge area of water quality while it remains largely standing still in another has something to do with this tension between the desire to address water pollution and concern about the costs of doing so. It has just as much to do, though, with failing to learn the lessons of what works and what does not in the water pollution area, and perhaps most to do with the political power of the constituencies that cause much of the remaining water pollution in America. Now, with the Clean Water Act's silver anniversary upon us and with reauthorization of the Act pending in Congress, it may be time to see if some of the lessons from the Act's successes of the past quarter-century can be applied to remedying its failures.

The State of America's Waters as a Result of the Clean Water Act

There are two general types of water pollution: pollutants that come out of a pipe or similar conveyance, and pollutants that do not. The first type of pollution is known as point-source pollution and is governed primarily by the national pollutant discharge elimination system (NPDES) established by Clean Water Act § 402.¹⁸ Familiar sources of point-source pollution include industrial outflow pipes from factories, and pipes discharging wastewater effluent from sewage treatment plants.¹⁹ The second type of water pollution is known as nonpoint-source pollution, or more descriptively as polluted runoff,²⁰ and is governed (in a manner of speaking) by § 319 of the Act.²¹ Sources of polluted runoff include agricultural fields, urban pavement, and suburban lawns—any surface from which rainwater or snowmelt can carry disturbed soil or other pollutants that collect on a surface (such as pesticides, excess applications of fertilizer, or oil that has dripped onto pavement) into water bodies. The Clean Water Act has been remarkably successful at controlling and reducing point-source pollution from most sources, though more work needs to be done to improve the NPDES program's effectiveness. In stark and somewhat depressing contrast, the Clean Water Act has failed almost entirely to make a dent in the pervasive polluted runoff that degrades and endangers a substantial number of American water bodies.

Before enactment of the Clean Water Act in 1972, water quality was disturbingly poor in many areas. Senator Muskie [27 ELR 10576] spoke for many Americans when he decried the "cancer of water pollution" that beset the nation.²² In a 1967 book with the downbeat title Moment in the Sun: A Report on the Deteriorating Quality of the American Environment, authors Robert and Leona Rienow called the problem of water pollution "so complex and varied and so serious that it … is today at the forefront of our domestic crises."²³ In 1971, a task force launched by Ralph Nader issued a report with the similarly depressing title Water Wasteland, which catalogued the polluted state of America's waters.²⁴ Among other things, Water Wasteland reported that the Hudson River contained bacteria levels of 170 times the safe limit.²⁵ Perhaps most notoriously of all, and in a signal flare to a nation that risked watching its natural bounty literally flow away, on June 22, 1969, Ohio's Cuyahoga River ignited in a conflagration fed by oil and other industrial wastes.²⁶ When the rivers are on fire, you know things are bad.

Twenty-five years after the Clean Water Act's enactment, it is not only hairstyles that have changed for the better. As a result of the Act, America's waters are cleaner today than they were in 1972 in noticeable and significant ways. The data show that point-source pollution has decreased substantially over the last quarter-century,²⁷ and a variety of commentators have confirmed that America has made important progress in cleaning up its waters as a result.²⁸ In 1992, the National Academy of Sciences reported that "over the last 20 years, the nation has made considerable progress in controlling and reducing certain kinds of chemical pollution of its rivers, lakes, and wetlands."²⁹ Because of controls on industrial point-source discharges and decreases in sewage treatment plant discharges, among other legally mandated changes,³⁰ "the chemical water quality … in many lakes and rivers has improved, and loadings of some toxic contaminants have decreased."³¹ These advances in water quality are a direct result of the Clean Water Act, particularly the Act's requirement that all point-source dischargers have and comply with a discharge permit³² and the Act's authorization of billions of dollars to build and upgrade municipal sewage treatment plants.³³

Happily, one can look beyond the data and the literature to confirm for oneself that things are looking up on the water quality front. Not only are rivers no longer on fire, people are returning to waterfronts they had previously shunned, signaling through concrete action that America's waters are back from their near-death experience. While Water Wasteland reported bleakly in 1971 that the Hudson River contained bacteria levels 170 times the safe limit,³⁴ last year the New York Times reported that the Hudson now "pulses with life."³⁵ Calling the scope of change in the river "huge," the paper chronicled the roster of improvement: "Raw sewage no longer flows routinely into the river. Toxic contamination has been reduced. There are no more summertime dead spots. People swim in the Hudson now. Recreational fishermen in charter boats dot the water."³⁶ [27 ELR 10577] While water quality in the river remains inadequate to support all uses, largely due to river sediment containing dangerous polychlorinated biphenyls (PCBs) from past manufacturing, both the trend and the scale of improvement are impressive. "By almost every measure," the Times concluded, "the river is less polluted and more hospitable to life than it was."³⁷ Giving credit where credit is due, the Times reported that the Clean Water Act and other environmental initiatives, along with other systemic changes such as a decline in agriculture in the basin, "have been most responsible" for the Hudson's return.³⁸

To make good news even better, the Hudson is not alone in its resurrection. From Portland, Oregon, to Baltimore, Maryland, cities have reembraced rivers and harbors made cleaner by the Clean Water Act.³⁹ This embrace of waterways has economic as well as public health and environmental benefits, as cities such as Boise, Idaho, reap the benefits of economic development along their newly cleansed waterways.⁴⁰ In light of all this, it perhaps will not seem churlish to venture that the money spent and bureaucracy spawned by the Clean Water Act have been justified, despite the concerns of Presidents Nixon and Reagan.

We should celebrate this good news—because of its importance to Americans who seek clean water to fish in, swim in, and drink, and because of our apparent national tendency to look pessimistically at the prognosis for many national problems, particularly problems that government seeks to address. Our celebration of this good news, though, should not stop us from acknowledging the areas of point-source water pollution that still need work.⁴¹ It also should not stop us from taking a hard look at the side of the water pollution equation that has shown virtually no improvement since 1972.⁴² While the news about point sources is good, the bad news is that point-source pollution constitutes only a part of the water quality challenge facing America, and today it constitutes a distinct minority of that challenge. The other, larger challenge is the problem posed by polluted runoff, and on this front the Clean Water Act has unquestionably earned a failing grade.

The commentators who uniformly praise the nation's record on controlling point-source pollution uniformly condemn its progress in addressing pollution that does not emerge from pipes or similar conveyances.⁴³ And with good reason—America has made essentially no progress in addressing polluted runoff over the past quarter-century, and in fact there is compelling data indicating that non-point pollution has gotten worse rather than better in the last 25 years.⁴⁴ Indeed, there is considerable evidence that [27 ELR 10578] polluted runoff is the largest reason that roughly 40 percent of America's surveyed waters are too polluted for basic uses such as fishing and swimming⁴⁵—an unacceptably high incidence of polluted waters in a nation that is as prosperous as ours and that rightly places an extremely high value on public health and environmental quality. According to EPA's 1994 Water Quality Inventory, agriculture is by far the leading source of pollution for the nation's impaired rivers⁴⁶ and impaired lakes.⁴⁷ For pollution of rivers and streams, EPA has broken down agricultural runoff according to different categories of agricultural sources. Runoff from cultivated fields leads the pack, with runoff from rangeland and pollution from feedlots following not far behind.⁴⁸ Urban runoff (and associated storm sewers) is the leading source of pollution for impaired estuaries, with agriculture ranking a close third (behind sewage treatment plants) in sources of pollution for impaired estuaries.⁴⁹

Polluted runoff is a serious environmental problem.⁵⁰ For example, excess concentrations of nitrogen (in the form of nitrate) in water, which can be caused by runoff from agricultural fields oversupplied with fertilizer, can cause serious human health problems, particularly in infants. Runoff from fertilized fields can also harm or destroy aquatic life through the process of eutrophication, in which an over-supply of nutrients from fertilizer causes algal blooms that deplete the oxygen content of rivers or lakes.⁵¹ Other variations of polluted runoff can and do cause similarly serious problems.⁵²

These data together show that in the area of clean water, America is only halfway there. If the past quarter-century should rightly and proudly be known as the era in which America faced up to many of its problems with industrial and municipal waterborne discharges, we owe it to ourselves and our children not to let another 25 years go by before we finally face up to the real environmental and public health harm caused by polluted runoff.

The yawning gulf between the Clean Water Act's success in addressing point-source pollution and its resounding failure to do virtually anything about polluted runoff raises the obvious question: Why? There are a variety of lessons from the last 25 years about what works and what doesn't work in addressing water pollution, and these lessons may suggest the rudiments of a roadmap for a nation that needs to get serious about its remaining water quality problems.

The Importance of Comprehensive, Technology-Based Controls

The single most important change in water pollution law effected by the Clean Water Act in 1972 was to move past the previous approach of ambient-based pollution controls and institute a system of technology-based controls. This system of technology-based controls, applied categorically to all point sources, is likely the single biggest reason that the NPDES program has been successful in ratcheting down point-source pollution.

From its enactment in 1948 until it was dramatically amended by passage of the Clean Water Act in 1972, the Federal Water Pollution Control Act used ambient water quality standards in an effort to control water pollution.⁵³ In the water-quality context, the ambient-standards approach to pollution control seeks to identify the amount of pollution in rivers, lakes, and coastal waters that will impair the use of these waters by humans or aquatic life, then to work backwards to limit polluters' discharges so that they do not drive ambient levels of pollutants in specific water bodies above the designated level of impairment. In a perfect world this pollution-control strategy has two virtues. First, it is effective, because it keeps water pollutants below the level at which they cause harm. Second, it is optimally efficient, because the regulatory scheme does not impede "harmless" polluting activities—that is, activities that emit pollutants in amounts insufficient to drive the collective amount of pollutants contained in receiving waters above the level at which harm is caused.⁵⁴

Experience between 1948 and 1972 revealed, alas, that the world is not perfect, andthe ambient-standards approach was a failure. As the Senate Committee on Public Works declared in 1971, during the legislative process that led to the Clean Water Act, "the Federal water pollution control program … has been inadequate in every vital aspect."⁵⁵ To be effective the ambient-standards approach requires more, and more precise, information than science is capable of providing—information, for example, about the precise consequences for human health and the environment of specific amounts of specific pollutants in specific situations (rivers versus lakes, high-flow rivers versus low-flow rivers, etc.), all necessary to determine the level of ambient pollution that causes unacceptable harm.⁵⁶ It also gives polluters a powerful weapon against regulatory action: the ability to argue that their pollution is not causing any meaningful damage, especially when compared with other real or imagined sources of impairment [27 ELR 10579] in the same watershed.⁵⁷ Even if the science is available to rebut this argument, the science is virtually never without some level of exploitable uncertainty; and in any event the act of simply debating the issue consumes time and regulatory resources that are not spent actually implementing and enforcing pollution controls. The U.S. Supreme Court has explained as pithily as anyone why this regime of ambient standards "proved ineffective" at controlling water pollution.⁵⁸ Its problems, the Court wrote in an early case construing the Clean Water Act, "stemmed from the character of the standards themselves, which focused on the tolerable effects rather than the preventable causes of water pollution…."⁵⁹

Congress knew very well in 1972 about these problems with the ambient-standards approach, and it quite consciously chose to enact a system of water pollution control that focused principally, to use the Court's words, on "the preventable causes of water pollution." "The essential shift of policy contained in this bill is away from the concept of ambient quality and toward the concept of effluent controls," said Sen. Howard Baker (R-Tenn.) on the Senate floor during consideration of the 1972 Act. "We are recognizing for the first time that there is not a readily definable linear relationship between given effluent discharges and the quality of the receiving waters."⁶⁰ In the wake of this recognition, Congress crafted a regulatory system in which technology-based controls replaced ambient water quality standards as the primary mechanism for determining limits on discharges. Point sources were required to achieve limits on their discharges that initially reflected application of the "best practicable control technology currently available" and later the application of the "best available technology economically achievable."⁶¹ A strengthened set of requirements relating to ambient water quality standards was retained on a secondary basis, to supplement the technology-based limits when those limits were insufficient to protect water quality.⁶² The system was made universal and categorical, with all point-source discharges requiring a permit reflecting these controls but with modified standards applied to sewage treatment plants.⁶³

The first thing to observe about this system of comprehensive technology-based controls is how effective it has been. The reasonably dramatic decreases in point-source pollution discussed earlier have come about in significant part because all point-source polluters are required to have a discharge permit, the discharge limits are determined in most cases by the relatively direct matter of what controls the technology makes possible, and as a general matter polluters cannot delay matters or weaken their permit requirements by arguing that their pollution is insignificant to the receiving waters.⁶⁴

The second thing to observe is the absence of anything approaching such a regulatory system from the Act's current treatment of nonpoint sources. Nonpoint-source discharges are addressed in Clean Water Act § 319,⁶⁵ but it would go too far to say that they are actually regulated by that section. Section 319 requires each state to prepare an assessment report and a management program to address polluted runoff "to the maximum extent practicable," withthe management program charged with containing an identification of best management practices (BMPs) to reduce polluted runoff, programs to implement the BMPs, and a schedule for implementing them.⁶⁶ Unfortunately, these requirements are unenforceable—there is no penalty if a state fails to follow through on its duties, and there is nothing approaching the comprehensive, mandatory, technology- or practice-driven (and effective) regulatory system that applies to point sources.⁶⁷ Nor has Congress ever offered incentives sufficient to encourage states to take meaningful action voluntarily under § 319.⁶⁸ For all these reasons, § 319 has failed to trigger material progress on polluted runoff.⁶⁹

The third noteworthy thing about the Clean Water Act's-point-source discharge program is how badly out of current political and intellectual fashion this type of regulatory system may be. The NPDES program is an excellent example of prescriptive regulation—or "command and control regulation," to use the pejorative term favored by some. In today's political climate, there is not only a strong effort [27 ELR 10580] by many to steer away from environmental regulation and toward incentives,⁷⁰ there is an equally strong effort to subject individual regulatory actions to rigorous tests of risk assessment and cost-benefit analysis before the regulatory action may be imposed.⁷¹ There should be no doubt that the NPDES program as a whole would pass the test of cost-benefit analysis with flying colors,⁷² the benefits of being able to use rivers like the Hudson again being so very high and the costs of accomplishing it being so reasonable in relation to the benefits. There should also be little doubt, though, that for some individual NPDES permits the costs of imposing the discharge control have approached the level of benefits received from it. If individual point sources were able to contest the application of technology-based controls based on arguments about costs exceeding benefits, the system would quickly begin to unravel, because its effectiveness depends on the universality of its application of clear and uniform standards. As a result, the very great net positive benefit of the whole NPDES system would begin to evaporate as polluters exempted themselves from the permitting system by using cost-benefit arguments that share much in common with the arguments that dischargers were able to use in the ambient-standards regime that characterized water pollution law in America before the enactment of the Clean Water Act.

An NPDES-type program is not necessarily the best type of regulatory system for addressing all types of pollution problems; after all, one size rarely fits all. Nor is an NPDES-type program necessarily the right strategy for dealing with the special problems posed by polluted runoff. Indeed, certain aspects of the NPDES system—especially its requirement that all discharging activities be covered by a permit—seem unworkable and unviable in the polluted-runoff context. At the same time, there are core conceptual lessons behind the NPDES program's success—specifically, the importance of practice-driven controls applied across a category of polluting activities—that seem especially salient in thinking about how to construct effective ways to address polluted runoff. In any event, one clear lesson of the experience with point-source pollution before 1972 (or, for that matter, with nonpoint-source pollution since) is that a voluntary system with little federal oversight, little money, and vast opportunities for polluting entities to dispute the fact and character of controls on their activities is not a recipe for success.⁷³

The Importance of a Transparent, Rigorous Enforcement System With Strong Citizen Participation

The NPDES program has been successful in driving down point-source pollution not just because it imposes a set of technology-based discharge limits on all point sources but because it includes a clear, effective system for enforcing polluters' obligations. Under the NPDES program, each point-source discharger is required not only to have a permit but to report regularly (generally monthly) on the actual levels of the regulated pollutants being discharged.⁷⁴ These reports, known as discharge monitoring reports (DMRs), are simple documents that contain both the permitted level and the actual level of each pollutant permitted for discharge; exceedences are easily identified by comparing the actual level with the permitted level for each pollutant. DMRs are provided to EPA, and to the state water quality agency in the case of a delegated program, and the Clean Water Act requires that citizens have access to these reports.⁷⁵ Exceedances reported by polluters on DMRs, which are admissible in court, are sufficient to prove a violation of the Clean Water Act.⁷⁶ Actions to enforce the terms of NPDES permits can be brought by states,⁷⁷ EPA,⁷⁸ or citizens,⁷⁹ and penalties for violations are substantial.⁸⁰

This straightforward and effective enforcement scheme, in which the permit holder must report on and be held accountable for its compliance with its permit and which provides multiple opportunities for enforcement, including by citizens, did not come about by accident. Congress consciously mandated an aggressive, effective enforcement system when it drafted the Clean Water Act, providing, for example, for citizen suits.⁸¹ During Senate consideration of the conference report in 1972, Sen. Birch Bayh (D-Ind.) said: "We have learned by disappointing experience, Mr. President, that without strict enforcement and meaningful deterrents, water pollution control laws will have no real effect. The bill before us provides the enforcement and deterrents we need."⁸²

The Clean Water Act's record of success in decreasing point-source pollution attests that its enforcement system has proven effective. There is specific evidence that the citizen suit provision has been a particularly effective tool for enforcing the Act. As of the mid-1980s, roughly two-thirds of all environmental citizen suits had been brought under the Clean Water Act,⁸³ and the Senate Environment [27 ELR 10581] Committee reported that citizen suits "now constitute a substantial portion of all enforcement actions filed in Federal court under [the Clean Water] Act."⁸⁴ This special level of citizen enforcement activity helps to explain part of the Act's effectiveness, since citizens may be willing to enforce the law against polluters whom government agencies, for political or economic reasons, may be unwilling to pursue. Observers have ascribed part of the Act's success to its citizen suit provision.⁸⁵

In constructing a meaningful system to address polluted runoff, one could not and should not simply duplicate the enforcement provisions of the NPDES program. A permitting system for all activities resulting in discharges from nonpoint sources seems neither workable nor desirable, so the specific permit-based enforcement provisions of the NPDES program will find no ready application on the nonpoint side. Similarly, a system in which citizens have the capability to enforce directly against all nonpoint-source polluters also seems unworkable and undesirable for a variety of practical and political reasons. But the principles that underlie the largely successful NPDES enforcement program—specifically, the transparency created by the requirement that polluters report publicly on their compliance with their regulatory obligations, and the ability of citizens to use lawsuits to force action on pollution problems that regulators would just as soon overlook—could be applied profitably in constructing an effective system to address polluted runoff.

Appropriate Roles for State and Federal Authority

The general experience with the Clean Water Act's treatment of point-source pollution on the one hand and polluted runoff on the other suggests both the possibilities and limits of federalism in pollution control. Viewed through the lens of the point-source program, the Clean Water Actis a positive example of intelligent, largely successful sharing of responsibilities between the federal government and the states in protecting America's waters from pollution. The states perform much of the actual implementation of the NPDES program (40 states operated their own NPDES program as of 1995),⁸⁶ and since they do much of the actual work they deserve their share of the credit for the successes of the program. State authority under the point-source program, however, is exercised under several constraints imposed by the federal government. Most importantly, the technology-based standards that form the basis for most NPDES permitting are promulgated by the federal government and then applied by the states;⁸⁷ there is no state-by-state standard setting for categories of dischargers, a crucial fact that reduces the prospect of states competing among themselves to weaken standards in an effort to attract industry.⁸⁸ An additional, important limit on state authority is EPA's ability to oversee the states' implementation of the NPDES program on both a permit-by-permit⁸⁹ and a programmatic basis,⁹⁰ oversight that functions as a further check on any temptations for the states to sacrifice protection of water quality in an effort to foster stronger ties with industry. Reviewing the Clean Water Act's framework for exercise of state authority over point-source discharges, two authors recently called the Act "solicitous of state participation" in point-source regulation but insistent that the states operate "within a framework of mandatory, objective and enforceable federal requirements."⁹¹

Viewed through the lens of the failed program for regulating polluted runoff under § 319, the experience of federalism under the Clean Water Act is considerably less encouraging. In crafting § 319 in 1987, Congress essentially ceded all regulatory authority to the states.⁹² As discussed above, the experience with addressing polluted runoff has not been good; the states have not stepped up to the plate.⁹³ It is certainly true that the special practical and political problems of regulating pollutants from nonpoint sources have played a role in deterring states from moving against polluted runoff in a meaningful way.⁹⁴ It also has to be true, though, that the absence of the incentives and constraints on state behavior contained in the NPDES program, such as the categorical federal standards and the availability of strong federal oversight, has also played a role in the § 319 program's failure to encourage or force individual states to address polluted runoff.⁹⁵

Section 319 is not the only area of the Clean Water Act in which the discharge of state authority has been less than encouraging. Other troubling instances concern certain parts [27 ELR 10582] of the point-source control program.⁹⁶ Moreover, the states have badly breached their responsibilities to identify waters that remain polluted and then to promulgate total maximum daily loads (TMDLs) for these waters under § 303(d) of the Act.⁹⁷ The TMDL process is a crucial mechanism for ratcheting down levels of pollution in watercourses that fail to meet water quality standards despite the application of technology-based controls to point sources. The goal of the TMDL process is the central goal of the Clean Water Act—to deliver truly clean water to Americans by identifying the additional controls that must yet be made to point and nonpoint sources in order to render waters suitable for uses such as fishing and swimming. Despite the importance of the TMDL process and the plain obligations it imposes on the states, the states have generally sought to avoid their duties in this area in an ignoble way. As one recent commentator put it, "The states have been all in favor of the responsibility for regulating water pollution through their water quality standards, right up to the point that they had to do it."⁹⁸

These varied experiences with federalism and water quality suggest several lessons. First, states can and should play an important role in framing and implementing water quality protection. Not only does a place for state authority accord with our nation's tradition of federalism, it seems certain to foster greater acceptance of a regulatory program than a top-down, federal-only scheme would. Moreover, since 1970 America has evolved an accepted practice of sharing authority in environmental regulation between the federal and state governments, and it makes great practical and political sense to follow a similar model in the area of polluted runoff.⁹⁹ Second, ceding the standard-setting process to the states without an adequate floor of federal regulation is dangerous and tends to lend itself to a competitive weakening of standards, particularly when the criteria used to determine the standards are subject to much manipulation. Third, meaningful federal oversight over state authority, and strong carrots or sticks, are essential if the program is to be effective.

The Importance of Adequate Funding

Another thing necessary for an effective system of controlling water pollution is an adequate stream of federal funding. What is true in most areas of life is certainly true in the area of water quality protection: money matters.

Over the past 25 years, the federal government has invested more than $ 64 billion in grants and loans for sewage treatment plants around the nation.¹⁰⁰ In 1972, only 42 percent of Americans sent their sewage to a municipal wastewater treatment facility employing secondary treatment or better.¹⁰¹ Twenty years later, that number had increased to more than 62 percent of the population,¹⁰² in large part due to these tens of billions of dollars in federal funding. It should not come as a surprise, in the wake of this serious financial commitment, that discharges of sewage into the nation's rivers have decreased by 90 percent since 1970.¹⁰³ While there is more to be accomplished on the sewage treatment front, there is much more good news than bad here. Money invested on sewage treatment has been money well spent, as illustrated by rivers such as the Potomac, which has gone from being noxious to largely inviting.¹⁰⁴

In contrast to the firm federal financial commitment to addressing discharges of sewage, the nation has spent a relative pittance on efforts to control polluted runoff. Today the federal government spends less than $ 250 million per year on nonpoint-source pollution control efforts under the Clean Water Act, a number that pales next to other federal expenditures (and even to the money spent by federal agencies each year to implement the rest of the Clean Water Act).¹⁰⁵ In looking from this plainly inadequate funding stream to the near-total lack of progress experienced in addressing polluted runoff, one can only conclude that, here as in most places, you get what you pay for. To make genuine progress in addressing the substantial environmental harm caused by polluted runoff, it is plain that America needs to make a financial commitment that is at least roughly proportional to the scale of the problem, something we have refused to do to date.

Practical and Political Problems Unique to Polluted Runoff

As inadequate as § 319 is, it would be misleading to lay all blame for our nation's lack of progress in addressing polluted runoff at the door of the inadequate regulatory scheme. For both practical and political reasons, it is more difficult to tackle water pollution from nonpoint sources than from point sources, and any successful effort at addressing runoff will have to take account of these practical and political factors.

As a practical matter, polluted runoff simply is more difficult to control than point-source pollution. Point sources by definition offer discrete pollution outlets which can be monitored and to which pollution control devices or techniques can be readily applied. By contrast, polluted runoff by definition is caused by different types of activities taking place over dispersed areas of land or pavement. The diffuse nature of polluted runoff causes any number of practical problems for a regulatory scheme, problems that range from difficulty in identifying which specific activities are causing [27 ELR 10583] the worst pollution to challenges in remedying identified pollution-causing activities due to lack of a handy pipe or other conveyance to which a pollution control device can be attached.¹⁰⁶ Moreover, many causes of polluted runoff tend to vary with the season or the weather. While these practical problems are not fatal to the cause of reducing nonpoint-source pollution—best management practices, for example, can alter how farmers or other actors go about the activities that cause polluted runoff—they do complicate the challenge of implementing solutions.

The political problems posed by tackling polluted runoff may be even more difficult than the practical ones. Polluted runoff often results from the activities of well-organized, politically powerful interests such as agriculture or the timber industry.¹⁰⁷ Farmers, in particular, have a special place on the American political landscape, in part because they are well organized and in part because they benefit from the historical, still-culturally resonant notion of an agrarian nation peopled by yeoman farmers.¹⁰⁸ Other times, polluted runoff results from activities of the general public, such as applying fertilizer to suburban lawns or driving automobiles.¹⁰⁹ While attaching obligations to the activities of these organized interests or of the general public is a political challenge of the highest order, the bottom line is that those who suffer the harmful consequences of polluted runoff constitute the biggest, most politically powerful constituency in America: all of us. Thus, while the political terrain of polluted runoff is challenging, it is not one on which the political outcome is foreordained.

Though political and practical realities pose significant impediments to regulation, they fall well short of a valid excuse for continued inaction on the polluted-runoff front. The fact remains that polluted runoff is the most damaging source of water pollution in America, and it poses a range of risks for public health and the environment. If we as a nation are to have clean water for the 21st century, we simply must address the significant water pollution caused by nonpoint sources.

Potential Strategies for Making Progress on Polluted Runoff

The question then becomes how to go about addressing polluted runoff in an effective way. The above discussion of the lessons from a quarter-century of implementing the Clean Water Act's point-source controls suggests some strategies that might maximize the chances of success in tackling runoff. The idea here is not to apply reflexively in the nonpoint-source context the same regulatory tools that have worked generally well in the point-source context. Rather, the idea is to identify the principles underlying the specific strategies that have worked for controlling point sources, then to amend the specific strategies based on these principles to fit the specific practical and political circumstances presented by polluted runoff.

In the NPDES context, technology-driven controls have worked much better than controls based on ambient standards in driving down pollution. In the context of polluted runoff, the analogue to technology-based controls would be categorical controls based on how specific activities that cause polluted runoff are implemented on the ground. For example, farmers could be encouraged through incentives or required through regulation to set limits on the amount of fertilizer they apply to their fields, thus decreasing the amount of excess phosphorus and nitrogen that can run off their fields into rivers, lakes, and coastal waters. This type of practice-driven control based on categories of runoff-causing activities seems much more likely to yield meaningful progress in controlling pollution than a strategy that seeks to judge on a case-by-case basis whether an individual farmer is contributing unacceptable levels of pollution in an individual watershed under specific circumstances and then to craft individual limitations on that farmer's activities sufficient to drive ambient levels of pollution below an identified level of concern. It might well make sense to focus categorical controls, at least initially, on the most impaired watersheds.

States, the logical entities to implement a polluted-runoff control program, could be given a specific and enforceable mandate to address polluted runoff within their borders. Perhaps most logically, states could be required to meet TMDLs for waters impaired by nonpoint sources by a specified date, a mandate that would have the great virtue of building on the established TMDL process. The states could and should be given the authority to choose from a range of incentive-based or regulatory approaches for meeting this mandate. Such a "menu based" approach has the advantages of giving the states maximum flexibility in meeting their water quality duties and of building on the polluted-runoff control program established in coastal states by § 6217 of the Coastal Zone Amendments Reauthorization Act (CZARA),¹¹⁰ for which EPA has promulgated guidance specifying a range of management measures that states can use to address sources of polluted runoff.¹¹¹ Learning the lesson that "money matters," the federal government would need to provide substantial federal funds to aid in implementing the program.

Essential to any successful strategy for controlling polluted runoff would be a system for holding the states accountable for their success or the lack thereof. That is where an effective enforcement system would be crucial. While authority for citizens to sue individual nonpoint sources for unacceptable levels of pollution seems neither realistic nor desirable for reasons similar to those that argue against a system of individual [27 ELR 10584] permits, it would be crucial for citizens to be able to hold states accountable if they show a lack of progress in implementing their programs. So, for example, the system could authorize citizen suits against states for failing to make required progress in decreasing polluted runoff within their borders. It also would be important to require and release good information about the practices being followed by sources and any changes over time in the water quality in receiving bodies, so that all parties can determine what is working and what is not and can take appropriate action.

These are just ideas for tackling the challenge of polluted runoff, and they may or may not be exactly the right ones. The point of this discussion is to advocate a system (a) that tackles polluted runoff in a serious way and (b) that learns from the successes and failures in water pollution control to date in seeking to craft an effective system for addressing this type of water pollution.

Looking Toward the Clean Water Act's Second Quarter-Century

While there is significant work yet to be done in some areas of point-source pollution, as discussed above, the bulk of the water quality challenge facing America comes in the form of polluted runoff.¹¹² The existing Clean Water Act offers some tools for addressing polluted runoff, but each of these tools as currently drafted has significant limitations, which means that new legislation is necessary if America is to address this type of water pollution.

The TMDL process currently being forced into implementation by a series of citizen suits against EPA¹¹³ offers a solid foundation for constructing a meaningful system for addressing polluted runoff, but more legislative authority will be needed before the TMDL process can be fully successful in controlling nonpoint-source pollution. While some interests representing nonpoint sources argue that the TMDL process applies only to point sources,¹¹⁴ EPA strongly disagrees,¹¹⁵ and EPA's interpretation of the Clean Water Act should (and likely will) carry the day.¹¹⁶ Although EPA reads the Act as requiring that TMDLs be promulgated for watercourses impaired by nonpoint sources, it does not read the Act as requiring that TMDLs be implemented in the form of regulatory constraints on nonpoint-source discharges.¹¹⁷ States have the ability under the Clean Water Act to limit discharges from nonpoint sources, but as we have already seen few states have done so. Thus, provisions requiring the actual implementation of TMDLs for nonpoint sources will be necessary before this part of the Clean Water Act can reach its full potential as a tool for protecting water quality.

There is some prospect of using the state water quality certification process at Clean Water Act § 401¹¹⁸ to address pollution from some types of nonpoint sources. Section 401 requires applicants for a federal license or permit that "may result in a discharge into the navigable waters" to secure, from the affected states, certification that the discharge will comply with a variety of water quality requirements, including state water quality standards.¹¹⁹ Though the statutory language does not distinguish between point-source and nonpoint-source discharges, until recently § 401 had been applied only to point-source discharges.¹²⁰ Last year, a federal district court in Oregon ruled in a citizen suit brought against cattle-grazing interests that the state water quality certification requirement of § 401 applies to all discharges, from nonpoint sources as well as point sources.¹²¹ If this court decision is upheld on appeal, as it should be in light of the statute's plain language,¹²² § 401 will offer a vehicle for states to regulate some sources of polluted runoff by denying or conditioning water quality certification to these sources. Types of federally permitted activities that result in polluted runoff, and hence would be subject to regulation under § 401, include cattle grazing and timber cutting on public lands, particularly in the West, as well as numerous other activities.¹²³

While § 401 may prove a valuable tool for controlling certain types of polluted runoff in certain circumstances, as currently drafted it cannot be an all-purpose means of addressing this type of pollution. First, it applies only to activities that require a federal license or permit.¹²⁴ Thus, runoff-causing activities that do not require some type of federal authorization cannot be reached under § 401. Second, certification decisions under § 401 are the province of individual state governments. While some states will welcome the opportunity to use the state water quality certification process to protect their waters from polluted runoff, other states surely will rebuff the opportunity to decline or condition § 401 certification for activities causing polluted runoff, for fear of antagonizing the political and economic interests seeking the certifications.¹²⁵ Reluctance by individual states to get out in front of other states in using § 401 to address polluted runoff—for fear of losing economic activity to other, less-protective states—will almost certainly [27 ELR 10585] limit the utility of this tool for addressing nonpoint-source water pollution regardless of where the courts come out on the scope of the certification requirement. Finally and perhaps most basically, regulation of water pollution under § 401 is regulation based on water quality standards, with all the limits of such a regulatory strategy.¹²⁶

Particularly in light of these limits on existing tools for addressing polluted runoff under the Clean Water Act, the need seems plain for amendment of the Act to provide meaningful regulatory or incentive-based tools for reducing nonpoint-source pollution. While political impediments to enacting such tools are substantial, there are several factors pushing in the direction of a meaningful polluted-runoff control program. Ongoing citizen suits aimed at forcing the promulgation of TMDLs¹²⁷ may cause point-source polluters to organize and push for better controls on largely unregulated nonpoint sources, to avoid the TMDL process resulting in more restrictive discharge limits to their already-heavily regulated activities.¹²⁸ Most importantly, public awareness about the environmental harm caused by polluted runoff is growing as a result of beach closures¹²⁹ and other events,¹³⁰ and this awareness can only translate into public pressure to do something about this disproportionate source of water pollution.

Conclusion

After a quarter-century of serious efforts to improve the nation's water quality, we have much to be proud of, but the job is only half finished. To restore America's rivers, lakes, and coastal waters to the point that Americans can use them safely for virtually all activities, we must address the substantial environmental harm caused by polluted runoff. If we are to look back after the next 25 years of implementing the Clean Water Act and be proud of what we have accomplished, the first priority on our national water quality agency must be to get serious about polluted runoff as part of the next reauthorization of the Act.

1. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607. The law was originally called the Federal Water Pollution Control Act Amendments of 1972. See Pub. L. No. 92-500, 86 Stat. 816. The law became commonly known as the Clean Water Act, a name Congress recognized and added to the statute during passage of the 1977 Amendments to the Act. See Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566 (1977).

2. U.S. GOVERNMENT PRINTING OFFICE, 1 A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, 222-23 (1973) [hereinafter 1972 LEGISLATIVE HISTORY].

3. Id. at 276-79.

4. Id. at 161-62.

5. Id. at 148.

6. President's Veto Message to the Senate Returning S. 2770 Without His Approval, 8 WEEKLY COMP. PRES. DOC. 1531-32 (Oct. 17, 1972).

7. 1 1972 LEGISLATIVE HISTORY, supra note 2, at 135-36.

8. Id. at 109-13.

9. In the spring of 1997, Money Magazine polled its subscribers on their top concerns in evaluating places to live. "Clean water" ranked second on a list of 41 concerns, just below "low crime rate" and above interests such as low taxes and good schools. Carla Fried, The Best Places to Live in America, MONEY, July 1997, at 153; see also Gary Lee, GOP Is Warned of Backlash on Environment, WASH. POST, Jan. 24, 1996, at A6 (describing public opinion survey conducted by a "leading Republican pollster" finding that 46 percent of respondents said that "no changes" should be made to the Clean Water Act); Poll: Public Still Supports Enviro Protection, But…, Greenwire, Aug. 24, 1995, at *1 (describing poll conducted by Roper Starch Worldwide in which only 5 percent of respondents believed water pollution regulations had "gone too far," 21 percent thought they had "hit the right balance," and a full 70 percent believed they had "not gone far enough"); The Wirthlin Report, Research Supplement 1 (Aug. 1995) (August 1995 poll in which 70 percent of respondents assigned water pollution a priority rating of 9 or 10 on a 1-10 scale, with 8.8 as the mean priority value for all respondents). In a poll taken in May 1997, the Pew Research Center for the People and the Press found that 84 percent of respondents believed that federal spending on "environmental protection" should increase or stay the same. Pew Research Center for the People and the Press, What Budget Agreement? Americans Only a Little Better Off, But Much Less Anxious, Question 7 (survey taken May 15-18, 1997; results downloaded from World Wide Web at http://www.people-press.org/mayque.htm). In an October 1995 poll taken by the same organization, 77 percent of Americans agreed that "this country should do whatever it takes to protect the environment" while only 20 percent thought that "this country has gone too far in its efforts to protect the environment." Pew Research Center for the People and the Press, Voter Anxiety Dividing GOP; Energized Democrats Backing Clinton, Question 38(q) (survey taken Oct. 25-30, 1995; results downloaded from World Wide Web at http://www.people-press.org/question.htm). In the same poll, 35 percent of Americans believed that "stricter environmental laws and regulations cost too many jobs and hurt the economy," while 61 percent said that "stricter environmental laws and regulations are worth the cost." Id., Question 38(r).

10. See, e.g., James Gerstenzang, GOP Launches Gentler Battle on Environment, L.A. TIMES, Apr. 7, 1997, at A1 (Wash. Ed.) ("Chastened by a tide of public opinion against their agenda, Republicans are no longer bashing environmental laws …."); Gary Lee, Environmental Groups Target Candidates, WASH. POST, Oct. 29, 1996, at A10; "Clean Water" Bill Pulls Dirty Trick on the Public, USA TODAY, May 15, 1995, at 12A (editorial).

11. In remarks at the ceremony at which he signed his veto message, President Reagan denounced Congress for sending him "an $ 18 billion sewage treatment program that is so loaded with waste and larded with pork I cannot in conscience sign it." Remarks on Signing the Message to the House of Representatives Returning H.R. 1 Without Approval, 23 WEEKLY COMP. PRES. DOC. 96 (Jan. 30, 1987).

12. The House of Representatives overrode the President's veto on February 3, 1987 by a vote of 401-26. U.S. GOVERNMENT PRINTING OFFICE, 1 A LEGISLATIVE HISTORY OF THE WATER QUALITY ACT OF 1987, 356-57 (1988). The Senate overrode the veto on February 4 by a vote of 86-14. Id. at 339.

13. H.R. 961, 104th cong. (1995).

14. The House passed H.R. 961 on May 16, 1995, by a vote of 240-185. 141 CONG. REC. H5013 (daily ed. May 16, 1995).

15. For example, the bill would have repealed entirely § 402(p) of the Clean Water Act (33 U.S.C. § 1342(p), ELR STAT. FWPCA § 402(p)), the portion of the Act that limits discharges of polluted stormwater. H.R. 961, 104th Cong. § 322(c) (1995).

16. President Bill Clinton denounced H.R. 961 as "a bill that would roll back a quarter-century of bipartisan progress in public health and environmental protection" and that "would let polluted water back into our lives." Remarks on Clean Water Legislation, 31 WEEKLY COMP. PRES. DOC. 921 (May 30, 1995). The President pledged to "happily and gladly" veto the bill if it reached his desk. Id. at 923; see also Gary Lee, House Passes Rewrite of Water Act, WASH. POST, May 17, 1995, at A1 (reporting on senatorial reservations concerning H.R. 961); Ann Devroy, Veto Vowed for Clean Water Act Rewrite, WASH. POST, May 31, 1995, at A7 (same); "Clean Water" Bill Pulls Dirty Trick on the Public, supra note 10, at 12A.

17. See Oliver A. Houck, TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act, 27 ELR 10329, 10332 (July 1997) (asserting that the 1972 Clean Water Act was passed as a result of "strong public opinion" despite resistance from states, industry, and the Administration).

18. 33 U.S.C. § 1342, ELR STAT. FWPCA § 402.

19. The Clean Water Act defines a point source broadly. The term means "any discernible, confined and discrete conveyance, including any pipe, ditch, … conduit [etc.], from which pollutants are or may be discharged." 33 U.S.C. § 1362(14), ELR STAT. FWPCA § 502(14). The Act specifically excludes "agricultural stormwater discharges and return flows from irrigated agriculture" from the definition of a point source. Id.

20. See, e.g., NATURAL RESOURCES DEFENSE COUNCIL AND COAST ALLIANCE, UPSTREAM SOLUTIONS TO DOWNSTREAM POLLUTION: A CITIZENS' GUIDE TO PROTECTING SEACOASTS AND THE GREAT LAKES BY CLEANING UP POLLUTED RUNOFF (1993).

21. 33 U.S.C. § 1329, ELR STAT. FWPCA § 319.

22. 1 1972 LEGISLATIVE HISTORY, supra note 2, at 161.

23. ROBERT RIENOW & LEONA TRAIN RIENOW, MOMENT IN THE SUN: A REPORT ON THE DETERIORATING QUALITY OF THE AMERICAN ENVIRONMENT 106 (1967). Among other things, the authors wrote disdainfully of "our open sewers euphemistically termed rivers." Id.

24. DAVID ZWICK & MARCY BENSTOCK, WATER WASTELAND (1971), cited in ROBERT W. ADLER ET AL., THE CLEAN WATER ACT 20 YEARS LATER 5-6 (1993).

25. ADLER ET AL., supra note 24, at 5.

26. Id.

27. In 1989, EPA released its congressionally mandated Water Quality Improvement Study, which presented data on point-source discharges and concluded that "water quality has improved significantly" as a result of the NPDES program. U.S. EPA, REPORT TO CONGRESS: WATER QUALITY IMPROVEMENT STUDY viii (Sept. 1989). The study demonstrated much better compliance with water quality criteria, especially under low-flow conditions, after point-source dischargers were required to use the best available technology (BAT) to control their discharges. Id. at 31-33. The study also acknowledged that, since 42 percent of all river miles might exceed one or more water quality criteria during low stream flow, more work needs to be done to decrease water pollution. Id. at ix. A 1987 study published in the journal Science concluded that in the first decade after the Clean Water Act's passage, "municipal loads of biochemical oxygen demand (BOD) decreased an estimated 46 percent and industrial BOD loads decreased at least 71 percent nationally." Richard A. Smith et al., Water Qualitay Trends in the Nation's Rivers, 235 SCIENCE 1607, 1609 (1987). The authors of this study noted that "these achievements in point-source pollution control are particularly impressive" since both population and the economy increased meaningfully during this period. Id. at 1609.

28. According to a recent law review article, "most authorities agree that the country has made significant progress in cleaning up pollution from 'point sources,' such as most industrial discharges and sewage treatment plants." Debra L. Donahue, The Untapped Power of Clean Water Act Section 401, 23 ECOLOGY L.Q. 201, 202-03 (1996). Another author reports that the Clean Water Act has "drastically reduced surface water pollution from point sources." Brian Weeks, Trends in Regulation of Stormwater and Nonpoint Source Pollution, 25 ELR 10300, 10301 (June 1995). A third, observing that public treatment (much of it funded by public monies authorized under the Clean Water Act) has reduced sewage in the nation's rivers by 90 percent since 1970, noted "impressive progress" in addressing water pollution in the wake of the Clean Water Act's enactment. TIM PALMER, LIFELINES: THE CASE FOR RIVER CONSERVATION 100-01 (1994). Professor Oliver Houck of Tulane Law School, while rightly lamenting the fact that the NPDES program has not gone further and faster in eliminating point-source pollution, concluded that:

for all its limitations, BAT under the Clean Water Act has probably been the most effective pollution control program in the world in terms of producing identifiable abatement—short of outright bans—if only because alternative programs have proven equally burdensome and so much less effective. At the very least, the BAT process has proven, against vigorous opposition and the most dire predictions, that pollution could in fact be reduced without significant losses in employment, competitiveness, control, or industrial growth.

Oliver A. Houck, The Regulation of Toxic Pollutants Under the Clean Water Act, 21 ELR 10528, 10541-42 (Sept. 1991).

29. NATIONAL RESEARCH COUNCIL, RESTORATION OF AQUATIC ECO-SYSTEMS: SCIENCE, TECHNOLOGY, AND PUBLIC POLICY 47 (1992).

30. The Academy also cited bans on certain chemical pesticides, such as DDT, as causes of the national improvement in water quality. Id.

31. Id.

32. 33 U.S.C. §§ 1311(a), 1342, ELR STAT. FWPCA §§ 301(a), 402. In the late 1980s, EPA estimated that the NPDES program resulted in the removal of 1.2 billion pounds of toxic pollutants from effluent waste streams each year. Memorandum to the Record from Richard Healy, EPA, Re: Priority Pollutants Removed from Effluent Annually (Nov. 21, 1991) (on file with author).

33. See 33 U.S.C. §§ 1281-1299, 1281-87, ELR STAT. FWPCA §§ 201-219, 601-607. According to one author, in 1992 "the EPA alone spent $ 2.9 billion on the Clean Water Act, most of it as grants to states to build sewage treatment plants." PALMER, supra note 28, at 101.

34. ADLER ET AL., supra note 24, at 5.

35. William K. Stevens, Shaking Off Man's Taint, Hudson Pulses With Life, N.Y. TIMES, June 9, 1996, at 1.

36. Id.

37. Id.

38. Id.

39. Linda Kanamine, Cities Go With the Flow of Cleaner Waters, USA TODAY, June 17, 1996, at 10A.

40. Timothy Noah, The River That Runs Through Boise Runs Clear Once Again, WALL ST. J., Apr. 22,1994, at A1.

41. In its 1994 National Water Quality Inventory, EPA reported that sewage treatment plants remain the second most common source of water quality impairment for rivers, lakes, and estuaries. U.S. EPA, NATIONAL WATER QUALITY INVENTORY: 1994 REPORT TO CONGRESS ES-15, ES-18 to -19 & ES-25 (1995) [herinafter 1994 WATER QUALITY INVENTORY]. The leading source of impairment for rivers and lakes is agriculture, and the leading source of impairment for estuaries is urban runoff and storm sewer discharges. Id. One (but only one) reason that sewage treatment plants continue to discharge unacceptable levels of pollution is the general ineffectiveness of the pretreatment program, which imposes duties on indirect dischargers—that is, facilities such as factories that discharge their pollutants to sewage treatment plants rather than directly to a body of water. See 33 U.S.C. § 1317, ELR STAT. FWPCA § 307. Professor Houck calls the pretreatment program "one of the Clean Water Act's major errors." Houck, supra note 28, at 10556. Professor Rogers calls pretreatment "the knottiest water pollution issue on the agenda, according to the authorities." 2 WILLIAM H. ROGERS JR., ENVIRONMENTAL LAW § 4.32 (1986); see also Weeks, supra note 28, at 10301 ("Nitrates from municipal sewage treatment plants (publicly operated treatment works or POTWs) are the largest remaining contaminant from point sources.").

Sewage treatment plants are not the only source of point-source pollution that needs more work as the Clean Water Act moves into its second quarter-century. In addition to the separate but thematically related problems of combined sewer overflows, in which combined sanitary sewers and storm sewers overflow and discharge raw or barely treated sewage during and after storm events, unacceptable (and often unpermitted) discharges from large animal feed-lots, discharges from certain municipal storm sewers, and a series of outdated or nonexistent effluent guidelines for certain categories of industrial dischargers warrant focused regulatory attention from EPA and the states as important and necessary next steps in the NPDES program.

42. It is also important to note that not all waterbodies have shown improvement over the last quarter-century. For a bracing treatment of the pressures on the Chesapeake Bay, see TOM HORTON & WILLIAM M. EICHBAUM, TURNING THE TIDE: SAVING THE CHESAPEAKE BAY (1991); see also NATIONAL RESEARCH COUNCIL, supra note 29, at 37 ("Negative trends in the quality of aquatic resources have been apparent for decades. We continue to find examples of the decline in some functions of major U.S. aquatic ecosystems—for example, San Francisco Bay, Long Island Sound, the coastal marshes and bottomland hardwood forests of the Mississippi delta, the Great Lakes, and the Everglades, to name but a few.").

43. See PALMER, supra note 28, at 117 ("During the past thirty years, our society has eliminated much of the water pollution that we could readily see, but we are left with an insidious legacy of invisible poisons and polluted runoff stemming from the overlooked interface between land and water."); NATIONAL RESEARCH COUNCIL, supra note 29, at 47 ("it is well recognized that the nation's water quality programs have not been effective in controlling and reducing loadings of nutrients, sediments, and some toxicants associated with 'nonpoint source' pollution from agricultural, urban storm water discharge, mining, and oil and gas extraction activities."); Leon G. Billings, The Clean Water Act: A Good Beginning, ENVTL. F., Mar./Apr. 1990, at 46 ("we have created a runoff pollution problem which is a more serious and complicated threat to the environment than the point source discharges addressed by the 1972 Act"); Smith et al., supra note 27, at 1611 ("Recent assessments suggest that nonpoint-source pollution may prevent achievement of national water-quality goals even after complete implementation of planned point-source controls.").

44. See David Zaring, Federal Legislative Solutions to Agricultural Nonpoint Source Pollution, 26 ELR 10128 (Mar. 1996) ("nonpoint source pollution … has increased"). It certainly has become a more serious problem in a relative sense, compared to the progress America has made on point-source pollution. Last year EPA reported that, in many areas, "nonpoint source pollution is the greatest source of water quality degradation. Presently, states and tribes identify nonpoint source pollution from cropland and livestock, urban runoff, and storm sewers as the greatest water quality threat to the Nation's surface waters." U.S. EPA, ENVIRONMENTAL INDICATORS OF WATER QUALITY IN THE UNITED STATES 21 (1996). Data compiled by the U.S. Geological Survey shows that nonpoint sources far overshadow point sources as contributors to nitrogen loading in streams in nearly every part of the nation. Id. at 19 (Figure 10). The National Academy of Sciences reports that "by far the most widespread problem facing lakes and reservoirs is agricultural nonpoint runoff of silt and associated nutrients and pesticides." NATIONAL RESEARCH COUNCIL, supra note 29, at 6. The 1987 water quality study published in Science found evidence that decreases in total phosphorus concentrations in some waters stemmed generally from point-source reductions, while increases in total phosphorus concentrations in other waters appeared to result from nonpoint-source increases. Smith et al., supra note 27, at 1612. By the same token, the authors concluded that general increases in total nitrate concentrations in waterbodies "appear more related to nonpoint sources than to point sources," with atmospheric deposition appearing to be a particularly significant contributor in some regions. Id.

45. Letter from Carol Browner, Administrator, EPA, to Newt Gingrich, Speaker of the House of Representatives, transmitting to Congress the 1994 Water Quality Inventory Report, contained in 1994 WATER QUALITY INVENTORY, supra note 41. Specifically, the most recent data concludes that 36 percent of surveyed river miles are impaired—that is, too polluted to fully support all designated beneficial uses, and thus unable to fully support a healthy aquatic community and/or human activities all year round. Id. at ES-14 to ES-15. Of the lake acres surveyed, 37 percent were impaired, and 37 percent of the estuary square miles surveyed were impaired. Id. at ES-18 & ES-25.

46. 1994 WATER QUALITY INVENTORY, supra note 41, at 31.

47. Id. at 53.

48. Id. at 35.

49. Id. at 65.

50. Donahue, supra note 28, at 205 ("it is becoming increasingly clear that nonpoint source (NPS) pollution poses a grave threat to the nation's water quality"); Daniel R. Mandelker, Controlling Nonpoint Source Water Pollution: Can It Be Done?, 65 CHI.-KENT L. REV. 479, 501 (1989) ("Nonpoint pollution is a significant source of water pollution.").

51. See Clare F. Saperstein, State Solutions to Nonpoint Source Pollution: Implementation and Enforcement of the 1990 Coastal Zone Amendments Reauthorization Act Section 6217, 75 B.U. L. REV. 889, 893 (1995).

52. See Zaring, supra note 44, at 10129-30.

53. For an excellent discussion of the pre-1972 Federal Water Pollution Control Act and its limitations, see Houck, supra note 28, at 10529-31.

54. Id. at 10529.

55. S. REP. NO. 92-414, at 7 (1971), reprinted in 2 1972 LEGISLATIVE HISTORY, supra note 2, at 1415, 1425.

56. Houck, supra note 28, at 10529-31.

57. See id. at 10542 (quoting Assistant EPA Administrator Rebecca Hanmer from 1987: "Before the 1972 law, you'd get into these long, long debates with dischargers who would say 'No, let me prove to you this isn't a problem.' … Having established a very strong nationwide enforcement structure, we have got a tool that will allow us not to get lost in endless scientific debates.").

58. EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 202, 6 ELR 20563, 20564 (1976).

59. Id. The Court also pointed to other problems with the pre-1972 law—the "awkward" relationship the law established between the federal and state governments in promulgating water quality standards, and the statute's "cumbrous enforcement procedures." Id. Professor Houck makes similar observations. Houck, supra note 28, at 10529.

60. 117 CONG. REC. 38809 (1971), quoted in Houck, supra note 28, at 10531; for other expressions of congressional intent in this direction, see Houck, supra note 28, at 10531-32.

61. 33 U.S.C. § 1311(b), ELR STAT. FWPCA § 301(b).

62. Id. §§ 1312 & 1313, ELR STAT. FWPCA §§ 302 & 303.

63. Id. §§ 1311(a), (b) & (e), 1342, ELR STAT. FWPCA §§ 301(a), (b) & (e), 402. The principal staffer for Senator Muskie during drafting of the 1972 Clean Water Act reports has said that the issue of universal, categorical coverage for all polluting facilities was "the single most contentious" issue during the legislative process: "The single most contentious Clean Water Act issue was whether there would be an opportunity for individual polluters to appeal clean water requirements for their particular category of facilities. That one issue held up the clean water conference for several months, and was ultimately resolved in favor of categorical effluent standards based on feasibility and cost." Billings, supra note 43, at 47.

64. The NPDES system, though, is not without its compromises—for example, the variances available at CWA § 301(g) and (h). 33 U.S.C. § 1311(g) & (h), ELR STAT. FWPCA § 301 (g) & (h).

65. Id. § 1329, ELR STAT. FWPCA § 319.

66. Id. § 1329(a)-(b), ELR STAT. FWPCA § 319(a)-(b).

67. Id. § 1329(d)(3), (e), ELR STAT. § 319(d)(3), (e); see also Houck, supra note 17, at 10342 (§ 319 is "the epitome of a voluntary program," and it has produced "little noticeable cleanup of nonpoint source pollution"); C. Peter Goplerud III, Water Pollution Law: Milestones From the Past and Anticipation of the Future, NATURAL RESOURCES & ENV'T, Fall 1995, at 11 ("The difficulty with the approach taken by Congress [in § 319] is that it has no teeth.").

68. According to a General Accounting Office (GAO) review of the § 319 program, state officials "identified the lack of resources as a key barrier to controlling nonpoint source pollution. Although some states have or will allocate millions of dollars to deal with the problem, they maintain that it would require billions to correct." U.S. GAO, WATER POLLUTION: GREATER EPA LEADERSHIP NEEDED TO REDUCE NONPOINT SOURCE POLLUTION 28-29 (1990). Between 1990 and 1993, federal funding for § 319 never exceeded $ 50 million per year. Zaring, supra note 44, at 10132.

69. See Zaring, supra note 44, at 10132 ("Section 319 failed to solve the nonpoint source pollution problem. Its failings can be characterized as not enough carrot, not enough stick, and too much of the same planning imperatives that characterized § 208.").

70. See, e.g., Richard B. Stewart, Controlling Environmental Risks Through Economic Incentives, 13 COLUM. J. ENVTL. L. 153 (1988); see also Houck, supra note 28, at 10542 n.227 (literature on market mechanisms versus technology-based standards).

71. See H.R. 1022, 104th Cong. § 202 (1995); see also Tom Kenworthy, House Votes to Limit Health, Safety Rules, WASH. POST, Mar. 1, 1995, at A1.

72. Setting aside, of course, the extreme difficulty or impossibility of assigning a numerical value to the ability to have one's children fish or swim in a lake without fear that they will be seriously harmed by the quality of the water.

73. See Houck, supra note 17, at 10342-43 ("As user-friendly as voluntary approaches to pollution control are, for pollution control to work something should happen when it does not").

74. 33 U.S.C. § 1318(a), ELR STAT. FWPCA § 308(a); 40 C.F.R. §§ 122.41(1)(4), 123.22(d) (1996).

75. 33 U.S.C. § 1318(b), ELR STAT. FWPCA § 308(b).

76. See, e.g., Student Pub. Interest Research Group of N.J. v. P.D. Oil & Chem. Storage, Inc., 627 F. Supp. 1074, 1089-90, 16 ELR 20517 (ELR digest) (D.N.J. 1986) (in CWA citizen suit, holding that "the issue here is whether the DMRs were violated" and relying on permit-exceeding discharges reported on DMRs to enter summary judgment for plaintiffs on liability). Under the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 18 ELR 20142 (1987), a discharger is not liable for permit exceedances that are wholly past and nonrecurring.

77. See 40 C.F.R. § 123.27 (1996) (establishing requirements for state enforcement authority in order for states to administer NPDES program).

78. 33 U.S.C. § 1319, ELR STAT. FWPCA § 309.

79. Id. § 1365, ELR STAT. FWPCA § 505.

80. The Act authorizes civil penalties of up to $ 25,000 per day for each violation, id. § 1319(d), ELR STAT. FWPCA § 309(d), and criminal penalties, id. § 1319(c), ELR STAT. FWPCA § 309(c).

81. Id. § 1365, ELR STAT. FWPCA § 505.

82. 1 1972 LEGISLATIVE HISTORY, supra note 2, at 216.

83. Charles S. Abell, Ignoring the Trees for the Forest: How the Citizen Suit Provision of the Clean Water Act Violates the Constitution's Separation of Powers Principle, 81 VA. L. REV. 1957 n.1 (1995).

84. S. REP NO. 99-50, at 28 (1985).

85. In 1985, the Senate Environment Committee evaluated the enforcement of the Clean Water Act and reported that "citizen suits are a proven enforcement tool. They operate as Congress intended—to both spur and supplement government enforcement actions. They have deterred violators and achieved significant compliance gains." Id.; see also Billings, supra note 43, at 47 ("Where the waters are markedly less polluted, the public has been involved in the process through partisan politics, citizen action and participation, law suits and threats of law suits, and aggressive governing."). More recently, though, there has been some disturbing evidence that NPDES enforcement has been relaxed. In 1996, the GAO reported that roughly one in six of the nation's major point sources significantly violated its NPDES permit in 1994. U.S. GAO, WATER POLLUTION: MANY VIOLATIONS HAVE NOT RECEIVED APPROPRIATE ENFORCEMENT ATTENTION (1996).

86. 1994 WATER QUALITY INVENTORY, supra note 41, at 390.

87. 33 U.S.C. §§ 1342(b)(1)(A), 1311(a), (b) & (e), ELR STAT. FWPCA §§ 402(b)(1)(A), 301(a), (b) & (e).

88. See Oliver A. Houck & Michael Rolland, Federalism in Wetlands Regulation: A Consideration of Delegation of Clean Water Act 404 and Related Programs to the States, 54 MD. L. REV. 1242, 1299-1300 (1995) ("While delegation of section 402 responsibilities to the states runs the risk of an uneven playing field dotted with 'pollution havens,' the risk is greatly minimized by objective federal standards."). The GAO has nevertheless found considerable variation in the stringency of individual states' administration of the NPDES program. U.S. GAO, WATER POLLUTION: DIFFERENCES AMONG THE STATES IN ISSUING PERMITS LIMITING THE DISCHARGE OF POLLUTANTS (1996).

89. 33 U.S.C. § 1342(d)(1), ELR STAT. FWPCA § 402(d)(1).

90. Id. § 1342(c)(3), ELR STAT. FWPCA § 402(c)(3).

91. Houck & Rolland, supra note 88, at 1290.

92. 33 U.S.C. § 1329, ELR STAT. FWPCA § 319 (especially 33 U.S.C. § 1329(e), ELR STAT. FWPCA § 319(e)); see also Donahue, supra note 28, at 283 ("Nonpoint source pollution control, relegated to the states under the Clean Water Act, consists largely of vague plans and voluntary programs.").

93. See Donahue, supra note 28, at 283 ("Few, if any, states regulate nonpoint sources, despite the apparent mandates in the Act to do so.").

94. See infra notes 106-09 and accompanying text.

95. See Donahue, supra note 28, at 284 n.448 ("§ 319 gives no federal agency the authority to 'step in' and devise [a nonpoint source] for a state if it does not adopt one itself").

96. See Houck, supra note 28, at 10549-54 (chronicling state competition to weaken water quality standards for dioxin under the point-source program).

97. 33 U.S.C. § 1313(d), ELR STAT. FWPCA § 303(d); for a description of the TMDL process and how states have failed to carry out their responsibilities in this process, see Houck, supra note 17; Oliver A. Houck, TMDLs, Are We There Yet?: The Long Road Toward Water Quality-Based Regulation Under the Clean Water Act, 27 ELR 10391 (Aug. 1997) [hereinafter Houck, TMDLs II].

98. Houck, TMDLs II, supra note 97, at 10401.

99. The Clean Water Act establishes a congressional policy "to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the development and use … of land and water resources …." 33 U.S.C. § 1251(b), ELR STAT. FWPCA § 101(b).

100. 1994 WATER QUALITY INVENTORY, supra note 41, at 488.

101. Id.

102. Id.

103. PALMER, supra note 28, at 101.

104. See 1994 WATER QUALITY INVENTORY, supra note 41, at 494.

105. Id. at 488, tbl. 19-1. Resource expenditures by private parties and state and local governments on polluted-runoff control are similarly unimpressive. Id.

106. Zaring, supra note 44, at 10136 (discussing difficulty of establishing precise causation for individual sources of nonpoint pollution); Weeks, supra note 28, at 10304 (citing "practical difficulties" in regulating polluted runoff); Mandelker, supra note 50, at 481 (discussing difficulty of controlling a discharge of pollutants that "occurs over the surface of land and not at a particular point").

107. Zaring, supra note 44, at 10136 (discussing the difficulty of regulating nonpoint source pollution because of "the nature and strength of the groups that oppose it"); Weeks, supra note 28, at 10304 (noting "political opposition" to regulation of polluted runoff); Mandelker, supra note 50, at 501 (discussing "political obstacles" to addressing polluted runoff).

108. See PHILIP SHABECOFF, A FIERCE GREEN FIRE: THE AMERICAN ENVIRONMENTAL MOVEMENT 20-21 (1993) (discussing the appeal of the agrarian ideal).

109. Billings, supra note 43, at 46 (because "runoff has no distinguishable owner," a "politically saleable solution is more difficult to develop").

110. Pub. L. No. 101-508, § 6217, 101 Stat. 1388-314 to -319 (1990) (codified at 16 U.S.C. § 1455b); for a discussion of how § 6217 of CZARA operates, see Saperstein, supra note 51, at 899-902.

111. U.S. EPA, GUIDANCE SPECIFYING MANAGEMENT MEASURES FOR SOURCES OF NONPOINT POLLUTION IN COASTAL WATERS (1993) (mandated by 16 U.S.C. § 1455b(g)).

112. The inherent limitations of § 319—its voluntary nature and lack of enforceable requirements on states and nonpoint sources—are by now well known to the reader of this Dialogue and bear no further repetition.

113. See Houck, supra note 17, at 10344 (new TMDL compliance efforts "could have a dramatic impact on the course and future of the Clean Water Act").

114. See Houck, TMDLs II, supra note 97, at 10399.

115. See id. at 10400; U.S. EPA, GUIDANCE FOR WATER QUALITY-BASED DECISIONS: THE TMDL PROCESS 14 (1991) [hereinafter TMDL GUIDANCE] ("a State must establish a TMDL that quantifies pollutant sources and allocates allowable loads to the contributing point and nonpoint sources so that the water quality standards are attained for that waterbody").

116. See Houck, supra note 17, at 10337; Houck, TMDLs II, supra note 97, at 10399-400; Chevron, U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR 20507 (1984).

117. TMDL GUIDANCE, supra note 115, at 15 (where nonpoint sources are involved, a phased approach to TMDL implementation is necessary, since under the Clean Water Act "the only federally enforceable controls are those for point sources through the NPDES permitting process").

118. 33 U.S.C. § 1341, ELR STAT. FWPCA § 401.

119. Id. § 1341(a), ELR STAT. FWPCA § 401(a).

120. See Donahue, supra note 28, at 229.

121. Oregon Natural Desert Ass'n v. Thomas, 940 F. Supp. 1534, 1540, 27 ELR 20221, 20222 (D. Or. 1996).

122. See id. at 1539-40, 27 ELR at 20222-23.

123. See Donahue, supra note 28, at 226-28 (listing activities potentially subject to § 401).

124. 33 U.S.C. § 1341(a), ELR STAT. FWPCA § 401(a).

125. See Donahue, supra note 28, at 294 (noting that the "political resolve" to implement § 401 "will no doubt vary among states," but concluding that "involving state officials with affirmative responsibility for protecting the quality and designated uses of state waters is bound to alter the calculus of range management decisionmaking").

126. See supra notes 53-73 and accompanying text.

127. See, e.g., Idaho Sportsmen's Coalition v. Browner, 951 F. Supp. 962, 27 ELR 20771 (W.D. Wash. 1996).

128. See Weeks, supra note 28, at 10300 ("To make further progress, Congress and EPA must now decide whether to tighten effluent controls on industry still further or broaden the regulatory focus to include sources that currently are exempt or lightly regulated.") & 10304 ("Preventing [polluted runoff] would produce greater and more cost-effective improvements in water quality than tighter controls on industrial point sources.").

129. Polluted runoff caused nearly 500 beach closings just in 1996. NRDC, 7 TESTING THE WATERS 1 (1997); see also John H. Cushman Jr., More States (But Not All) Monitor Beach Pollution, N.Y. TIMES, Aug. 3, 1997, § 5, at 3.

130. For example, in 1996 the New York Times reported that the unicellular organism pfiesteria piscida, the source of dangerous red tides, may be linked to polluted runoff. "A growing fear, intriguing but unconfirmed, is that nutrient runoff from human development, the heavy use of fertilizers and livestock farms is feeding the growth of the marauding swarms," the Times reported. William J. Broad, A Spate of Red Tides Menaces Coastal Seas, N.Y. TIMES, Aug. 27, 1996, at C1, C5.

There is also evidence that polluted runoff may have been responsible for a 1993 outbreak of the parasite cryptosporidium in the city of Milwaukee's water supply, which sickened hundreds of thousands of people and resulted in the deaths of more than 100 people whose immune systems had already been compromised. See David Ward, Milwaukee Still Wary Over Water Scare, L.A. TIMES, May 15, 1994, at A26 (Wash. Ed.) (describing outbreak). A 1994 study published in the New England Journal of Medicine concluded that while the exact source and timing of the parasite's introduction to Lake Michigan and thence to the city's water supply "remain speculative[,] possible sources include cattle along two rivers that flow into the Milwaukee harbor, slaughterhouses, and human sewage. Rivers that were swelled by spring rains and snow runoff may have transported [the cryptosporidium] into Lake Michigan and from there to the intake of the [Milwaukee water treatment] plant." William R. MacKenzie et al., A Massive Outbreak in Milwaukee of Cryptosporidium Infection Transmitted Through the Public Water Supply, 331 NEW ENG. J. MED. 161, 166 (1994); see also Joe Manning, Norquist Wants Fines for Barnyard Runoff, MILWAUKEE SENTINEL, Apr. 9, 1993, at 5 (describing Milwaukee mayor's calling "for strong legislation to prevent barnyard runoff, saying he believes farm animals may be the source of a parasite tentatively linked to an epidemic of vomiting and diarrhea").

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