The History of the 1972 Clean Water Act And How it Became Law

Introduction

The 1972 Clean Water Act (CWA) and how it became law is a testament to the tireless efforts of lawmakers, environmental advocates, and concerned citizens who recognized the urgent need to protect and preserve the nation’s water resources. Over the course of the late 19th and 20th centuries, federal efforts to combat water pollution evolved through three distinct periods, culminating in the passage of the CWA, a groundbreaking piece of legislation that transformed the approach to water pollution control in the United States.

In the decade leading up to the CWA, a surge of public interest in environmental pollution and high-profile disasters spurred a movement for major environmental reforms. Key figures, such as Senator Muskie and President Nixon, championed these efforts, shaping the direction of environmental law and policy. Senator Muskie’s ambitious legislation set a national goal of “no pollutant discharge” and aimed to strengthen federal enforcement powers. President Nixon’s administration proposed its own solutions, eventually leading to a collaborative draft bill that laid the foundation for the CWA.

The CWA marked a critical turning point in the history of environmental law and policy in the United States. It established the Environmental Protection Agency (EPA) as the primary authority for implementing pollution control programs, set wastewater standards for industry, and defined water quality standards for all contaminants in surface waters. The Act also included provisions for the construction of sewage treatment plants and addressed the issue of nonpoint source pollution.

Today, the CWA is the primary federal law governing water pollution in the United States, administered mainly by the EPA in coordination with state governments. Its provisions extend to all navigable waters and aim to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. The CWA stands as a testament to the progress made in environmental protection and serves as a reminder of the ongoing commitment required to safeguard our planet’s most precious resources.

The State of Water Pollution Control Programs in the Early 1970s and the Limited Scope of State Programs

Before delving into the federal origins of the 1972 Clean Water Act (CWA), it’s important to recognize that, prior to the mid-1960s, water pollution control was largely considered a state responsibility. Many early objections to creating a federal role in combating water pollution stemmed from the belief that such issues were exclusively state or local matters. Consequently, the onus was on states and local governments to take necessary regulatory actions to address pollution. Even President Eisenhower vetoed an early congressional attempt to expand federal involvement in water pollution control, citing concerns about violating the principle of federalism.

Throughout the 19th century, local governments gradually started to exercise legal authority over severe water pollution issues within their jurisdictions. As concerns about pollution in rivers and watersheds grew, states increasingly established agencies responsible for regulating water quality. By the time the federal government started showing interest in addressing water pollution, every state had a dedicated agency or department for monitoring water quality and working to reduce pollution. Typically, these agencies were part of the state’s public health department and were staffed by sanitary engineering professionals.

The focus on sanitary engineering reflected the belief that only water pollution issues stemming from sanitary sewers, municipal waste treatment plants, and industries discharging raw organic waste were worth addressing. During this period, it’s fair to say that most state laws were relatively weak in terms of taking effective legal action against known polluters. Even when state statutes appeared robust enough to support aggressive enforcement, tough enforcement was generally not the norm. Instead, those responsible for enforcing the law often favored a strategy of offering incentives and friendly persuasion rather than confronting polluters with legal action.

This isn’t to solely blame state authorities for the nation’s worsening water quality during the first half of the 20th century, but rather to highlight the widespread reluctance of state officials to use available enforcement options. This preference for voluntary compliance by polluters was prevalent among sanitary engineers who ran state programs at the time, with their approach summed up by the axiom: “Dilution is the solution to pollution.”

However, by the time the 1972 CWA was adopted, the landscape of water pollution control had evolved. Just a few years had passed since federal law first required states to adopt new water quality standards for interstate waters. By 1970, the implementation of the 1965 Water Quality Act (WQA) was well underway in the states, and the challenges in developing effective enforcement strategies to translate emerging water quality standards into cleaner water were beginning to be acknowledged and addressed.

Despite this progress, the prevailing perception in Congress during the 1972 CWA debates was that it would be futile to expect states to develop sufficiently robust regulatory controls on water pollution to significantly improve the nation’s rivers and lakes. A major report at the time, however, concluded that this assessment was premature and likely unwarranted. Nonetheless, Congress disagreed, laying the groundwork for the Clean Water Act.

Federal Efforts from 1886 to 1948

The Rivers and Harbors Act

The Rivers and Harbors Act, first enacted in 1886, marked the beginning of federal involvement in water pollution control in the United States. The initial legislation focused on preventing obstructions in New York City’s harbors by tasking the Army Corps of Engineers with regulation. The Corps’ jurisdiction expanded over time, ultimately encompassing all navigable waters and their tributaries across the nation. In 1966, a Supreme Court decision revived the Refuse Act, a key component of the Rivers and Harbors Act, and set the stage for the development of the 1972 Clean Water Act.

Early river and harbor legislation primarily authorized initial surveys of rivers for navigation safety and improvements driven by the growth of steamboat transportation and the commercial success of state-financed canals like the Erie Canal. Over time, federal waterway improvement programs evolved to address a range of issues, including water power, mill sites, and the construction of locks and dams.

The Civil War temporarily halted civil works on rivers and harbors, but the post-war period saw a sharp increase in federal funding for river and harbor improvements. Annual appropriations grew rapidly, reaching tens of millions of dollars by the end of the 19th century. The Army Corps of Engineers was closely connected to these civil works construction projects.

The Rivers and Harbors Appropriation Act of 1899, like earlier acts, authorized various navigational improvement projects and established congressional authority over bridges, dams, and other structures. The act also addressed refuse disposal in navigable waters and the alteration of public works related to navigation. This legislation laid the groundwork for current U.S. Army Corps of Engineers permit requirements.

U.S. Public Health Service Steps Up

In the early 20th century, newfound scientific knowledge about the origins of waterborne diseases like typhoid and cholera spurred national interest in the public health aspects of water pollution. In 1912, the U.S. Public Health Service (PHS) was authorized by Congress to investigate the link between pollution in navigable rivers and lakes and adverse health effects on people using the water for household purposes.

Although PHS wasn’t granted the power to initiate corrective measures, it didn’t hinder progress towards eliminating this health hazard through improved drinking water treatment. PHS’s close cooperation with state and local public health departments led to national standards for chlorination and other treatments, virtually eradicating waterborne diseases in the U.S.

Oil Pollution Act of 1924

The Oil Pollution Act of 1924 emerged in response to concerns over oil pollution from ships in coastal waters. This pollution affected public beaches, posed fire hazards, and impacted shellfish production. The act banned oil dumping in coastal waters and granted the Secretary of War the authority to enforce the law. The legislation, later expanded to include other hazardous substances, eventually became part of the 1972 Clean Water Act.

The 1924 Act established regulations for coastal navigable waters regarding intentional fossil fuel discharges from seagoing vessels. It provided penalties for violations, including civil and criminal punishment. The Clean Water Restoration Act of 1966 amended the 1924 law, requiring vessel owners to recover oil discharges and transferring the act’s authority to the U.S. Department of the Interior, with provisions for enforcement by the U.S. Armed Forces.

The Oil Pollution Act of 1924 was ultimately repealed by the Federal Water Pollution Control Act Amendments of 1970, enacted by the 91st United States Congressional session and signed into law by President Richard Nixon.

The Evolution of Federal Involvement in Water Pollution Control in the 1930s

In the 19th century, state and local governments shouldered the responsibility for providing citizens with essential services, leaving the federal government with a minimal role in their lives. However, Franklin D. Roosevelt’s New Deal in the 1930s expanded federal authority and involvement in response to the Great Depression, tackling issues such as water pollution. The New Deal’s conservation philosophy aimed to manage natural resources to increase economic growth, exemplified by hydroelectric dams promoting agricultural and urban development.

During the 1930s, water pollution gained national attention, with local scientists and zoologists calling for government action to protect marine life from industrial pollution. Although most water quality research and initiatives occurred at the local level, the Public Works Department in New York embarked on projects to purify the city’s waterways, reflecting a belief in technological solutions to environmental problems. This approach aligned with the political consensus supporting industrial growth, even if it resulted in pollution.

Inspired by the Oil Pollution Act’s success in addressing a significant water pollution issue, Congress considered broader federal action to address growing concerns about water quality from fish and wildlife specialists and conservation groups. In 1934, Senator Augustine Lonergan of Connecticut organized a national conference, inviting water quality experts to assess the nation’s water problems and suggest the appropriate federal role in addressing them. The conference’s theme was to “destroy pollution before it destroys us.”

The National Resources Committee appointed a Special Advisory Committee on Water Pollution that same year. Both the conference report and the Advisory Committee concluded there was a serious water pollution problem in America. In 1935, recommendations from these two sources led to the introduction of the first legislative proposal for an active federal program in water quality management. Though the bill didn’t pass, it’s interesting to note that the proposed federal program would’ve significantly involved the federal government in water pollution control, and yet no significant resistance emerged on states’ rights grounds.

In 1936, proponents of reform legislation managed to pass a modest federal program through both houses of Congress, only for the initiative to fail on a motion to reconsider in the session’s final days. The primary reason for failure was objections to the bill’s inclusion of federal enforcement powers. Efforts continued in 1937, and in 1938, proponents steered their bill successfully through both houses of Congress again, only for President Roosevelt to veto it on a “separation of powers” ground.

However, President Roosevelt recognized the general popularity of the water pollution control initiative, and in a special 1939 message to Congress, stated that he “fully subscribed to the general purposes” of the act he vetoed in 1938. In 1939, President Roosevelt acknowledged the need for federal intervention in addressing water pollution, pioneering the idea of treating water quality as a public health issue. He called for the creation of a Division of Water Pollution Control and a system of federal grants and loans to support pollution abatement projects. While the New Deal increased the perception of water pollution as a national problem, Roosevelt maintained that responsibility for addressing the issue primarily rested with municipal governments and private industry.

Part 1, Part 2, Part 3, Part 4

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