LEARNING FROM MORE THAN FIVE-AND-A-HALF DECADES OF FEDERAL WATER POLLUTION CONTROL LEGISLATION: TWENTY LESSONS FOR THE FUTURE

Boston College Environmental Affairs Law Review, 2005 by Murchison, Kenneth M

Abstract:

Since 1948, the federal government has assumed an increasingly dominant role in efforts to control pollution of surface waters in the United States. Over that half century, the federal role has evolved from research support and financial grants to states, to federal effluent standards and a national permit requirement, and, more recently, to enforcement of a mandate to achieve water quality standards.

This Article describes the evolution of federal water pollution control legislation in the United States. It focuses particularly on the 1972 statute prescribing feasibility-based controls for point sources and its 1977 modification, the increasing concern with toxic pollution in the 1980s, and recent litigation requiring total maximum daily loads for waters that fail to meet water quality standards. The Article then examines this description to evaluate the accomplishments and failures of each step in the legislative evolution, and to extract practical lessons so that future water pollution control legislation may be successful.

INTRODUCTION

In the United States, federal water pollution control legislation has evolved significantly over the last five-and-a-half decades. Since 1948, the federal government has assumed an increasingly dominant role in efforts to control the pollution of surface waters. During that period, the federal role has evolved from research support and financial grants to federal effluent standards and a national permit requirement and, more recently, to a mandate that water quality standards be achieved.

Engaging in a review of this statutory development, and its implementation by administrators and courts, can advance understanding of the regulatory process and suggest ways it might be improved. At a minimum, an examination of prior regulatory initiatives serves as a reminder of how water pollution control law has arrived at its current equilibrium-an equilibrium that can be characterized as wanting in many respects. In addition, the successes and failures of the past can offer lessons regarding what strategies may work to control water pollution, and other forms of pollution, in the future.

This Article begins by describing the evolution of the federal legislation. It focuses particularly on the 1972 statute prescribing feasibility-based controls for point sources, the modifications of the 1972 law in 1977 and in the 1980s, and recent litigation requiring total maximum daily loads for waters that fail to meet water quality standards.

This descriptive section sets the stage for the analytical contribution. The Article evaluates the accomplishments and failures of each step in the evolution of water pollution control law. It then uses the description and evaluation to generate some practical lessons for successful legislation. Some of these lessons may be useful in the present; others may be guides best called upon in a political, economic, or technological climate yet to arrive. In addition, because water pollution control legislation has used a range of different strategies for environmental regulation, these lessons have potential application to other environmental statutes as well.

I. FEDERAL WATER POLLUTION CONTROL LEGISLATION IN THE UNITED STATES

A. Regulation Prior to 1972

1. Legislation

The United States Supreme Court has long recognized extensive federal power over navigable waters. As early as 1824, the Court broadly defined congressional authority to control the use of waters in interstate commerce.1 For most of the nation's history, Congress exercised its authority over waterways by regulating the "navigable waters" of the United States. Moreover, the Supreme Court broadly defined that phrase.2 By the twentieth century, it included waters that had been navigable in the past,3 waters capable of being used for interstate commerce with reasonable improvements,4 and nonnavigable tributaries that affect navigable streams.5

Congress delayed significant federal pollution control legislation until the middle of the twentieth century.6 Nonetheless, one nineteenth century statute-the Rivers and Harbors Appropriation Act of 18997-was important in shaping modern legislation. Section 13 of that statute,8 commonly known as the Refuse Act, prohibited discharging refuse into navigable waters or their tributaries. To give the prohibition some teeth, section 16 of the 1899 law9 made any violation of the Refuse Act a misdemeanor punishable by a fine of $500 to $2500 and imprisonment for not more than thirty days; it also provided that one-half of the fine was "to be paid to the person or persons giving information which shall lead to conviction."10

The current codification of section 13 of the Refuse Act11 is a long and convoluted sentence; it contains two prohibitions and ends with a qualification and a pair of provisos. The first prohibition makes it unlawful to discharge "any refuse matter" into navigable waters or their tributaries except for "that flowing from streets and sewers and passing therefrom in a liquid state."12 The second prohibition forbids anyone from depositing "material of any kind . . . on the bank of any navigable water, or on the bank of any tributary of any navigable water" when the material "shall be liable to be washed into such navigable water."13 At the end of the second prohibition, Congress inserted the qualifying phrase "whereby navigation shall or may be impeded or obstructed."14 Finally, the sentence concludes with two provisos. The first exempts federal public works from the statutory prohibitions.15 The second authorizes the Chief of the Corps of Engineers to allow "the deposit of any material above mentioned in navigable waters."16