Water Pollution

Federal statutory regulation of water pollution has been governed primarily by three pieces of legislation: the Refuse Act, the Federal Water Pollution Control Act, and the Clean Water Act. The Rivers and Harbors Appropriations Act of 1899, 33 U.S.C.A. § 401 et seq., commonly known as the Refuse Act, was the first major piece of federal legislation regulating water pollution. The Refuse Act set effluent standards for the discharge of pollutants into bodies of water. An effluent standard limits the amount of pollutant that can be released from a specific point or source, such as a smokestack or sewage pipe. The Refuse Act flatly prohibited pollution discharged from ship and shore installations.

The Refuse Act was followed by the Federal Water Pollution Control Act of 1948 (FWPCA), 33 U.S.C.A. § 1251 et seq. Instead of focusing on sources of pollution through effluent standards, the FWPCA created water quality standards, which prescribed the levels of pollutants permitted in a given body of water. Where the Refuse Act concentrated on deterring specific types of polluters, the FWPCA concentrated on reducing specific types of pollution.

Since 1972, federal regulation of water pollution has been primarily governed by the Clean Water Act (CWA) 33 U.S.C.A. § 1251 et seq., which overhauled FWCPA. The CWA forbids any person to discharge pollutants into U.S. waters unless the discharge conforms with certain provisions of the act. Among those provisions are several that call upon the EPA to promulgate effluent standards for particular categories of water polluters.

To implement these standards, the CWA requires each polluter to obtain a discharge permit issued by the EPA through the National Pollutant Discharge Elimination System (NPDES). Although the EPA closely monitors water pollution dischargers through the NPDES, primary responsibility for enforcement of the CWA rests with the states. Most states have also drafted permit systems similar to the NPDES. These systems are designed to protect local supplies of groundwater, surface water, and drinking water. Persons who violate either the federal or state permit system face civil fines, criminal penalties, and suspension of their discharge privileges.

The CWA also relies on modern technology to curb water pollution. It requires many polluters to implement the best practicable control technology, the best available technology economically achievable, or the best practicable waste treatment technology. The development of such technology for nontoxic polluters is based on a cost-benefit analysis in which the feasibility and expense of the technology is balanced against the expected benefits to the environment.

The CWA was amended in 1977 to address the nation's increasing concern about toxic pollutants. Pursuant to the 1977 amendments, the EPA increased the number of pollutants it deemed toxic from nine to 65, and set effluent limitations for the 21 industries that discharge them. These limitations are based on measures of the danger these pollutants pose to the public health rather than on cost-benefit analyses.

Many states have enacted their own water pollution legislation regulating the discharge of toxic and other pollutants into their streams and lakes.

The mining industry presents persistent water pollution problems for state and federal governments. It has polluted over a thousand miles of streams in Appalachia with acid drainage. In response, the affected state governments now require strip miners to obtain licenses before commencing activity. Many states also require miners to post bonds in an amount sufficient to repair potential damage to surrounding lakes and streams. Similarly, the federal government, under the Mineral Leasing Act, 30 U.S.C.A. § 201 et seq., requires each mining applicant to "submit a plan of construction,

Toxic chemicals and other hazardous materials present the greatest threat to water quality. In June 1997, warning signs were posted around Silver Lake in Pittsfield, Massachusetts, when the lake was found to contain dangerous levels of PCBs.
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operation and rehabilitation" for the affected area, that takes into account the need for "restoration, revegetation and curtailment of erosion."

The commercial timber industry also presents persistent water pollution problems. Tree harvesting, yarding (the collection of felled trees), and road building can all deposit soil sediments into watercourses, thereby reducing the water quality for aquatic life. State governments have offered similar responses to these problems. For instance, clear-cutting (the removal of substantially all the trees from a given area) has been prohibited by most states. Other states have created buffer zones around particularly vulnerable watercourses, and banned unusually harmful activities in certain areas. Enforcement of these water pollution measures has been frustrated by vaguely worded legislation and a scarcity of inspectors in several states.