Introduction to the CWA and the administrative process

• Author: Jeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
• Pages: 59-173

59

Chapter III:

INTRODUCTION TO THE CWA AND

THE ADMINISTRATIVE PROCESS

A. INTRODUCTION

Common law can protect some people injured by unregulated water pol-

lution, but it is far better at compensating victims after dama ge than it is at

preventing damage in the rst place. Even in suits involving money damages

for injuries already suered, plaintis may have diculty proving causation.

Causation is especia lly dicult to prove where numerous pollutants could

cause the complained of da mage and where the pollutants could come from

numerous potential sources. Indeed, even the dama ge itself may be d icult

to prove. Moreover, tort law is best able to deal with personal injuries, not

damage to the environment itself; since water pollution neither injures a will-

ing plainti nor involves a nancially viable defendant, tort law provides

no potential remedy, not even money damages. Tort law, therefore, at best

provides haphazard, uncoordinated, a nd oc casional relief to pervasive envi-

ronmental problems such as water pollution.

e inability of common law to provide a comprehensive, preventive

response to problems of water pollution creates a legal vacuum that can only

be lled by statutory law. e primary legislative response is the Clean Water

Act (CWA), 33 U.S.C. §§ 1251-1387, and its state counterparts. e next

part of this chapter provides a brief overview of the CWA and its evolution,

and alludes to other pertinent statutes.

While t his casebook provides a good introduction to the CWA, it is not

a treatise on t hat statute. For in-depth research on particular aspects of t he

statute, there are several good sources. Frank P. Grad’s Treatise on Environ-

mental Law and William H. Roger’s Environmental Law: Air and Water both

oer excellent introductions to the CWA as well a s the other environmental

statutes. Dona ld Stever, Law of Chemical Regulation and Hazardous Waste,

and Sheldon Novick, Law of Environmental Protection, each have chapters on

the CWA that are less academic than Grad and Rogers. An invaluable and

less known research aid is the annual, Natural Resources, Energ y, and Environ-

mental Law, e Year in Review, published by the American Bar Association’s

60 Water Pollution Control, 2d Edition

(ABA’s) Section on Environment, Energy, and Resources. It summarizes a ll

judicial decisions and regulatory actions during the year under the CWA and

other federal environmental statutes.

As will soon become apparent, the CWA is not a self-implementing statute.

It must be implemented by government agencies, through a combination of

regulations, inspections, enforcement, and other administrative actions. e

primary implementing agencies are the U.S. (federal) Environmental Protec-

tion Agency (EPA) and its state counterparts; t hough the CWA also a ssigns

other, although less important, roles to the U.S. Army Corps of Engineers

(the Corps) and the U.S. Coast Gua rd. Furthermore, while the EPA is part

of the executive branch of government, the regu lations it issues a re legisla-

tive in nature and have the force of law. EPA employees often sit as judges in

enforcement cases brought by other EPA ocials against violating members

of the regu lated public. is mi x of the legislative, executive, and judicial

governmental functions gives rise to, and is governed by, administrative law.

Administrative law governs much of EPA’s implementation of the CWA. e

nal par t of this chapter introduces some aspects of administrative law that

are necessa ry to understand the regulatory proce ss. Issues of administrative

law will recur and be discussed throughout the book.

B. HISTORY OF WATER POLLUTION CONTROL

Over four decades ago, the United States made a major national commit-

ment to control water pollution, a commitment that remains today. In 1972,

Congress enacted about 100 pages of a mendments to earlier water pollution

control legislation, charting fundamentally new directions. Dissatised with

the results of previous decentralized water pollution control eorts, Congress

greatly enhanced the federal government’s responsibility as a regulator. It

adopted a control strategy based primarily on requiring dischargers to reduce

the pollution in their euents as much as possible using available control

technology, where before the strategy had been based exclusively on requir-

ing them to reduce pollution as much as necessary to achieve desired levels

of water quality. It created sophisticated, streamlined, and severe reg ulatory

and enforcement systems, where previously the sy stems had been cumber-

some and ineective. Most notably, it a lso empowered ordinary citizens to

participate in the implementation a nd enforcement of the program, where

before their only remedies for water pollution were common-law tort actions.

e statute, originally known as the Federal Water Pollution Control Act

(FWPCA) has been amended over a dozen times since, but has not departed

fundamentally from the course charted in 1972. One set of these amend-

Introduction to the CWA and the Administrative Process 61

ments was contained in legislation ca lled the Clean Water Act of 1977, Pub.

L. No. 95-217, 91 Stat. 1566 (1977). e underlying statute thereafter became

known popularly as the Clean Water Act (CWA). Although the statute tech-

nically remains the Federal Water Pollution Control Act, most practitioners

and commentators use the shorter and crisper Clean Water Act.

Water pollution control developed originally as a state rather than a fed-

eral concern. Indeed, the federal government did not enter t he eld until

1948. See Pub. L. No. 80-845, 62 Stat. 1155. Its rst eorts were limited to

providing technical assistance, partial nancing of municipal sewage treat-

ment works and authority to bring public nuisance lawsuits to abate inter-

state water pollution when all other means failed. States were left to establish

treatment requirements for pollution sources and to enforce them.

As public c oncern with water pollution grew during the 1960s, Con-

gress expa nded the federa l authority. It allowed EPA’s predecessor, the Fed-

eral Water Quality Administration in the U.S. Department of the Interior

(DOI), to play a role, subordinate to state roles, in establishing water pol-

lution requirements and enforcing them. e DOI, and later EPA, began

to use t heir statutory authority to grant construction funds for municipal

treatment works as leverage to require cities and towns to construct second-

ary treatment facilities (a combination of treatment technologies removing

approximately 85% of suspended solids (SS) a nd biochemical oxygen or

oxidation demand (BOD) from typical municipal wa stewater). Still, even

with this authority, the federal presence was subordinate. States were pri-

marily responsible for e stablishing and enforcing control requirements and

federal enforcement authority remained weak and cumbersome. Pub. L. No.

89-234, 79 Stat. 903 (1965). is earlier legislation and its implementation

are described in N. William Hines, Nor Any Drop to Drink: Public Regula-

tions of Water Quality, 52 I L. R. 186, 432, 799 (1966/1967).

Some states developed sophisticated approaches, signicant requirements

and aggressive implementation programs. Others did little or nothing. is

created the perception that the latter were “pollution havens.” At the same

time, there was a general movement of industry from older manufacturing

areas in the Northeast and Midwest to developing industrial areas in the

Southeast. W hile the part played in this movement by the cost dierential

between the water pollution controls required by those two sets of states was

unquantied, the northern states complained loudly a nd bitterly that the

southeastern “pollution havens” were luring industry from the North by not

requiring pollution control. is contributed greatly to a general perception