Introduction
Water pollution regulation in the United States is guided primarily by the Clean Water Act (CWA; 33 U.S.C. Chapter 26) enacted in 1972. The CWA was a controversial departure from previous water pollution regulation. On two points, however, everyone agreed.
First, the federal government inserted itself into water quality regulation in a major way. Previously,responsibility for water quality management had resided almost exclusively with local and state authorities.Second, the CWA decisively settled the "instrument choice" question,that is, whether the principal mechanism for water pollution abatement was to be direct regulation or economic incentives. In November 1971, Senator William Proxmire offered an effluent-charge amendment to clean water legislation then under consideration, and he and Senator Edmund Muskie debated the issue on the Senate floor. Muskie's main objection, apparently, was "We cannot give anyone the option of polluting for a fee." Muskie may or may not have won the debate, but he definitely won the vote. P.L. 92-500 combined a stringent technology-based regulatory regime with a large public works program; economic incentives were not mentioned. To this day, Senator Muskie is generally regarded as the father of the CWA.
Over time, however, policy can evolve and eventually may differ considerably from the original version. In this paper we examine the changes that have taken place in the structure of the CWA since its inception. In particular, we ask whether the mix of local and federal authority and responsibility has shifted and whether there has been any shift away from a pure regulatory program toward greater use of economic incentives.
Policy generally is considered to change from the top down, in any number of ways. Practical experience with legislation can reveal problems in original design, for example. Or, regulators in the executive branch may use the discretion provided for in the statute in unanticipated ways, and their use of this discretion may confound the expectations of some observers. Judicial interpretations may have the same result.
Legislators may be unhappy with implementation by regulatory agencies or with judicial interpretation, or they may become aware of opportunities that were not available when the statute was first passed. Certainly the CWA has experienced this sort of change, with major amendments in 1977, 1981, and 1989, in addition to a vast amount of judicial interpretation and volumes of U.S. Environmental Protection Agency (EPA) regulations and EPA guidance documents.
Policies also can change from the bottom up. More precisely, policies can be changed by the manner in which individual actors respond to the provisions of a policy and to the responses of others. The aggregation of these responses can produce a policy that is quite different from what policymakers initially anticipated. What is more, when policies evolve from the bottom up, the change takes place so slowly and subtly that it often takes some time for observers to notice?especially, as in this case, when there is no centralized database where trends can be easily observed.
A recent case study of industrial water pollution abatement policy in the United States from 1972 to the early 1990s (Harrington 2004) finds some indications of such bottom-up change in the CWA. Specifically, the aggregate impact of decisions made by thousands of individual actors at industrial plants, publicly owned treatment works (POTWs), and regulatory agencies has produced a policy that differs not only from the original policy but also from what policymakers in Washington think it is. In particular, these decisions may have a decentralizing effect, shifting responsibility back to states and localities somewhat. They also may encourage the introduction of economic incentives into the CWA in a largely unanticipated way. These interesting possibilities could not be followed up in that study, hence this follow-on report.
"Different" doesn't necessarily mean "bad." Certainly, there are reasons to be concerned about some of the policy changes we describe. For example, recent trends may decentralize information collection, making it more difficult to paint an accurate picture of water quality management. They also may shift frontline responsibility for regulating industrial point-source discharges away from EPA and state regulators and toward local POTWs. However, they also may bring about real opportunities for achieving policy objectives more cost-effectively. In particular, what was originally a purely regulatory program now offers the prospect of at least three different possibilities for using economic incentives for abatement using various mechanisms, including pollution offsets, cap-and-trade programs, and effluent fees. Taking advantage of these opportunities, as well as responding to concerns, will require increased understanding of what is actually happening on the ground (and in the water).
In Section II, we briefly describe the regulatory environment for point sources from 1972 (when the CWA was first passed) to the present. In Section III, we turn to CWA performance, discussing evidence of the CWA's effect on both pollutant discharges (again focusing on point sources) and on water quality. We examine in some detail the aforementioned trends that, taken together, appear to be changing the nature of the CWA in important ways. Finally, in Section IV, we summarize our findings and outline some research needs.
