1972 Law Did Not Restrict Federal Action

• Author: Leon G. Billings
• Position: President of Leon G. Billings Inc., an environmental consulting firm in Washington, D.C.
• Pages: 53-54

THE FORUM

MAY/JUNE 2003 ❖53

in his SWANCC dissent, “It is a para-

digm of environmental regulation.”

While the Rehnquist Court may well

have its own back-to-the-future

agenda, EPA has little reason to sub-

vert the dominant paradigm for Sec-

tion 404 or any other part of the Clean

Water Act.

Jay Austin is an ELI Senior Attorney

and Director of the Endangered Environ-

mental Laws Program.

1972 Law Did

Not Restrict

Federal Action

LEON G. BILLINGS

Waters of the United States.”

Those words define the

scope of coverage of the

federal Clean Water Act. They were

carefully selected after serious debate

among the members of the conference

committee on the Federal Water Pol-

lution Control Act in 1972.

Senator Edmund S. Muskie of

Maine included in the record of de-

bate on that Conference Report the

following statement:

“One matter of importance

throughout the legislation is the

meaning of the term ‘navigable wa-

ters of the United States.’

“The conference agreement does

not define the term. The Conferees

fully intend that the term ‘navigable

waters’ be given the broadest possible

constitutional interpretation unen-

cumbered by agency determinations

which have been made or may be

made for administrative purposes.”

His statement was intended to

make clear that Congress wanted the

broadest possible definition of waters

subject to the new Clean Water regu-

latory regime. Senator Muskie and his

colleagues on the conference commit-

tee knew that water pollution did not

relate in any way to traditional views

of navigability. They also knew that

under various laws and regulations

“navigable” meant different things to

different agencies.

Senator Muskie was comfortable

with the Senate version of the defini-

tion, which limited the law’s applica-

tion to “the waters of the United States

and their tributaries, including the ter-

ritorial seas.” It was the Senate’s in-

tention that all waters that have the

capacity to contribute pollution to

other waters be encompassed by that

definition.

The waters and wetlands encom-

passed by federal water pollution law

was evolutionary. There were intense

early debates on waters to which the

federal interest should apply. Thus,

the law prior to 1972 limited federal

clean water authority to “interstate

waters” without reference to naviga-

bility. But by 1972 there were two par-

allel and important issues which had

evolved in the Congress and the

Courts.

First, there was the issue of the

dredging and filling of waters under

the jurisdiction of the U.S. Army

Corps of Engineers. Second was the

judicial decision which enforced the

prohibition on the discharge of pol-

lutants pursuant to the Refuse Act of

1899.

These issues were crystallized in

the debate on the 1972 act. Not only

did Congress establish and codify the

national policy with respect to the fill-

ing of wetlands under Section 404

(later expanded in 1977), but also the

Congress declared all discharges of

pollutants were subject to either fed-

eral or state-issued federal permits.

Discharge of a pollutant was de-

fined as “(A) any addition of any pol-

lutant to navigable waters from any

point source, (B) any addition of any

pollutant to the waters of the contigu-

ous zone or the ocean from any point

source other than a vessel or other

floating craft.”

The distinction between interstate

and intrastate waters was eliminated.

All “waters of the United States” were

subsumed under the rubric of the Fed-

eral Water Pollution Control Act.

Congress also created a program

to deal with urban and agricultural

runoff. Section 208 of the 1972 law was

intended to address those sources of

pollution which did not flow into the

“waters of the United States” through

pipes or other discrete conveyances

and required the states to develop

area-wide waste management plans

to address these sources of pollution.

Congress retained a water quality

standards provision but made water

quality standards a measure of the

performance of state and federal regu-

latory programs, not an enforcement

mechanism. There was no distinction

among the waters of the United States

to be incorporated in the water qual-

ity standards or area-wide waste man-

agement process.

Thus, while many look at the defi-

nition of “waters of the United States”

to discern which waters are included

in the Federal Water Pollution Con-

trol Act, it is a more constructive exer-

cise to determine which waters are not

subject to federal jurisdiction.

To this end, the debate of the mem-

bers of the Senate Committee and of

the conference committee is informa-

tive. What about isolated wetlands

and waters like prairie potholes? The

issue was encapsulated in the Senate

Committee discussion of Lake Tulare

in California. It was alleged in that

debate that Lake Tulare was an iso-

lated water that drained into no other

waterway. Presumably, it derived its

water from springs and groundwater

sources and runoff and was reduced

by evaporation. But in no case did it

drain outside of its own borders.

Senator Muskie and his colleagues

accepted the idea that this particular,

very limited type of water might not

be “waters of the United States.”

In this period, Congress was con-

cerned about the quality of the

nation’s waters. The members recog-

nized that pollution was caused by

municipal waste discharges, indus-

trial sources, agricultural runoff, and

even rain storms. They recognized

that the more impervious surfaces the

more rapid runoff would occur, the

more pollution would result.

The objective of the 1972 Clean

Water Act was to restore and main-

tain the chemical, physical and bio-

logical integrity of the nation's waters

by eliminating the discharge of pol-

lutants. Thus, a fair reading of the law

“

Copyright © 2003, The Environmental Law Institute®, Washington, D.C. Reprinted by permission from The Environmental Forum®, May/June 2003