New Legislation For Water Quality

Water quality has been a major responsibility of the national government since passage of the Federal Water Pollution Control Act in 1956. Extensive programs have been carried out; expenditures, despite year-to-year fluctuation, have steadily increased; and the law itself has been amended four times between 1961 and 1970. But over the 16-year period the condition of the nation's streams and lakes has, with some encouraging exceptions, continued to deteriorate. (How much worse the decline might have been in the absence of federal activity is another question.)

Legislation adopted last October under the disarming title "Federal Water Pollution Control Act Amendments of 1972" is a comprehensive measure that broadens the scope of the federal program and in some respects seems to start it down a new and, some think, a questionable track. While major reliance is still placed on state action, and subsidies and the imposition of standards remain the chief instruments for getting things done, the authorized subsidies are much larger, the standards higher, and the provisions for enforcing them stricter. Also there is a shift from effluent standards keyed to ambient water quality standards toward direct imposition of effluent standards that are not connected with environmental conditions.

The main impetus for the new legislation was the widely shared feeling that things were not going well. The Environmental Protection Agency, as quoted in the 1972 report of the Council on Environmental Quality, saw little improvement in the overall situation during the preceding year—27 percent the nation's streams and shoreline miles polluted in 1970; 29 percent in 1971. As the agency pointed out, that estimate was rough and contained a sizable judgment factor. A study of firmer data from 140 selected federal and state water quality stations, commissioned by CEQ showed a mixed picture for the 1965-70 period: a steady increase in nutrients that degrade fresh water by stimulating growth of algae and other unwanted aquatic plants; some increase in biochemical oxygen demand (BOD) from household and industrial wastes (this can lower the dissolved oxygen content to a point at which fish die and streams stink); no increase, perhaps a small improvement, in salinity; and a significant decrease in suspended solids.

Presidential messages in 1970 and 1971 recommended a number of changes in the existing law. Further ideas came from members of Congress and other sources. Separate water quality bills were passed by the House (November 1971) and the Senate (March 1972). The conference committee version, approved by both houses, was vetoed by the President in October, primarily on grounds of cost to the federal treasury. Congress promptly overrode the veto. A few weeks later, as discussed below, the President cut the authorized subsidies to states and cities by more than half.

Two national goals are set forth in the opening section of the 1972 Act: (1) ". . . that the discharge of pollutants into the navigable water be eliminated by 1985"; and (2) ". . . that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983"

Several of the innovations embody points proposed by the President:

—Extension of the federal-state program to all navigable water within the United States
—Effluent standards for individual plants that discharge waterborne wastes and, under different criteria, for publicly owned waste treatment plants
—Mandatory use in new facilities of the best available and economically achievable technology
—Stringent federal standards for toxic discharges
—Stronger and more streamlined federal enforcement procedure
—Heavier fines on violations, from $2,500 to $25,000 a day for a first offence and up to $50,000 a day for subsequent conviction
—Provisions by which citizens can bring legal actions to enforce standards
—Self-sufficient municipal financing of treatment plants after the current backlog of municipal needs has been met.

The new amendments also give EPA legislative authority to continue the nationwide permit system that was initiated by administrative action late in 1970 under the Refuse Act of 1899, whose objective was to protect navigation rather than control pollution. They also extend the system to include municipal treatment plants as well as industrial establishments. While the permits can be issued by states whose criteria and procedures have received federal approval, EPA is empowered to veto any individual permit that it considers unwarranted.

More emphasis is also placed on research, demonstration, and education, including work in basin planning and area-wide treatment systems, though the sums involved remain on a modest scale. They total slightly under 350 million dollars when funds authorized without time specifications are added to those authorized for the 1973 fiscal year. Less than half that amount is authorized for establishing and enforcing standards.

A striking feature of the 1972 amendments is the increased emphasis upon matching grants for construction of publicly owned waste treatment plants. Such grants have always been part of the program. Recently they have amounted to about $1 billion a year. The new legislation authorizes up to $5 billion in grants for the fiscal year 1973, $6 billion for 1974, and $7 billion in 1975. In addition there is an authorization of up to $2.75 billion for supplementary support for previous grantees. The maximum federal contribution to each project is changed from 55 to 75 percent.

The subsidy authorizations clearly are what prompted the President's veto of a bill that contained so many of his recommendations. Unlike most authorizations, these were not intended to require subsequent appropriation in a separate Congressional action. Many observers see the makings of a constitutional crisis, even though the tug between executive and legislative prerogatives is an old story. In December, New York City sued to compel EPA to pay the city its full share of the authorized subsidy, and other states and cities were considering similar actions. Even the EPA administrator conceded that there might be a legal question of the President's authority to limit the funds in the way he did. Some observers consider the authorizations unrealistically large, and see a dilemma in which irresponsibility of the legislative branch has transferred a decision to the executive branch, where it does not belong in a society based on representative government.

Aside from the budgetary issue, several aspects of the 1972 amendments raise questions of how well the new law will work. Even the preamble invites speculation. Zero discharge of pollutants by 1985? Many observers doubt that this goal can be attained then or ever. And even if it could be, they ask, would not much of the gain be at the expense of other environmental media—disposal of sludge, for example, either in the ground or, through incineration, in the atmosphere? Water fit for fish and swimmers by 1983? Here, too, similar questions arise. Both of these aspirations are, it is true, set forth simply as goals and so perhaps should not be taken literally. But their presence in formal language may well invite misunderstanding, skepticism, and eventual disillusionment. And the two goals, especially that of 1983, seem to have colored some specific provisions of the act. For instance, effluent limitations for 1977 are to require "applications of the best practicable control technology currently available," and those for 1983, "the best available technology economically achievable."

Incidentally, these requirements are more inflexible than those of the House version of the bill, which provided that after 1976 (changed in conference to 1977) determination of the levels of technology to be used in setting standards should await a study by the National Academies of Science and of Engineering of the economic, social, and environmental effects of achieving or not achieving the goals. In its final form the act provides for a feasibility study of the 1983 goal, but the results are not specifically linked to establishment of standards, and the study is to be made by a National Study Commission to be composed of five members each from House and Senate Public Works Committees and five public members appointed by the President.

Increased use of the permit system may not be as workable as was once hoped. Presumably the difficulties encountered in enforcing ambient standards for water quality were the main reason for seeking a shortcut to the elaborate procedures required. For the past two years individual permits have been tried on a moderate scale under authority of the ancient Refuse Act. Although their issuance is simpler, appeals to the courts have held up many cases. There is not as yet enough experience to show whether such delays are a temporary or permanent phenomenon. With explicit new authority to issue permits, EPA can be expected to make them its main enforcement device. Ultimately, no less than 50,000 permits may be needed. This would place a huge job of resource allocation in the lap of the federal government. (While states eventually would take over most of the routine, EPA would be responsible not only for approving state systems, but for exercising detailed supervision thereafter, even to the veto of individual permits.) It is hard to see how such a task can be carried out without most of the knowledge of prices, technology, and markets that a plant manager possesses for his particular establishment. A larger volume of appeals to the courts appears likely.

The act provides for setting effluent standards on a national basis, without regard to differences in circumstances among areas or kinds of activity. Much economic research indicates that ambient standards can be achieved much more efficiently if efforts are concentrated where costs are least. Pollution taxes (or effluent charges) merit as much attention in water quality management as in management of air quality. Also, except for feedlots, runoff from agriculture is not covered in the amended act. In some areas this is a major source of water pollution. Finally, economic research has also shown that integrated approaches to water quality on a river basin basis tend to substantially reduce the cost of achieving environmental targets. Aside from its provisions for assistance to planning, the new legislation does not exploit these opportunities.