Pollution still flows through Clean Water Act loophole

By Hannah Northey | 10/18/2022 01:14 PM EDT

Senate staffers Leon Billings (left) and Tom Jorling (right) talk to Sen. Ed Muskie (D-Maine) (center). The three played key roles in drafting the Clean Water Act, which was enacted in 1972 and turned 50 on Oct. 18, 2022.

Senate staffers Leon Billings (left) and Tom Jorling (right) talk to Sen. Ed Muskie (D-Maine) (center). The three played key roles in drafting the Clean Water Act, which was enacted in 1972 and turned 50 on Tuesday. Tom Jorling/ Earth Institute Columbia University

Congressional staffers who helped craft the landmark Clean Water Act 50 years ago acknowledge they left a big hole in the law — one that’s now blamed for the single largest pollution source in streams, rivers and lakes.

Nonpoint-source pollution — a technocratic term describing pesticides, oil, fertilizers, toxins, sediment and grime that storms wash into waterways from land — still befuddles federal regulators to this day.

“I don’t think it was possible to do a good job on nonpoint sources with the extent of knowledge, with the extent of understanding, the extent of what the problems were, what the impacts were on the receiving waters,” said Gordon Wood, a former Republican staffer on the House Public Works and Transportation Committee.

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“It was just beyond us,” Wood said.

Yet five decades after Congress overrode President Richard Nixon’s veto of the landmark environmental law on October 18, 1972, the language and later amendments have been credited with significantly improving the nation’s water quality and curbing the flow of raw sewage, industrial chemicals and dangerous metals directly into U.S. waterways. And almost 90 House members today released a resolution marking the law’s achievements, with House Transportation and Infrastructure Chair Peter DeFazio (D-Ore.) hailing it as “a public policy success story.”

“Once dead rivers and lakes are now flourishing with wildlife,” President Joe Biden wrote in a proclamation yesterday announcing the anniversary. “People have returned to boat, fish, and swim. Sacred waters that tribal nations have relied on for generations are clean again.”

Still, more than half of the nation’s rivers and streams remain impaired by pollution (Greenwire, March 17).

Federal watchdogs with the Government Accountability Office said in a blog post that degradation is largely due to nonpoint-source runoff, pollution that can harm fish and other aquatic life, fuel toxic algal blooms, contribute to ocean acidification in coastal waters, and threaten marine life.

Experts in the water sector, from academics to former EPA officials, told E&E News that nonpoint sources likely weren’t tackled because of the technical difficulties of regulating free-flowing pollutants, concerns over impeding states’ rights for land use controls, and opposition from the nation’s powerful farming and timber industries. Further amendments to the Clean Water Act in 1977 formally exempted from permitting discharges from “normal” farming, ranching and forestry.

“What lay behind the turf war was the farm lobby, which is evident today, right up to this very moment,” said Vermont Law and Graduate School professor Pat Parenteau. “The Farm Bureau simply will not negotiate a role for the federal government in regulating agriculture, period, full stop.”

But staffers say the law has been a resounding success, describing a herculean effort involving years of negotiation and dozens of hearings to assemble and push through legislation that ultimately controlled water pollution.

When asked why the 1972 bill didn’t focus on nonpoint sources, Wood responded: “The answer may have been it was too hard.”

“Exactly,” said Lester Edelman, former counsel on the House Public Works and Transportation Committee’s Democratic side. “We would have been really, really moving into the agriculture committees’ jurisdictions. There’s just so much you can do, and part of the job of working on new legislation is to be cognizant of what you can and can’t do.”

Edelman, now a senior counsel at the Washington, D.C., consulting firm Dawson & Associates, said authors of the legislation didn’t want to “overload the bill” and narrow its chances of passing. There was also hope that another piece of legislation down the road would tackle the challenge of nonpoint sources of water pollution, he said.

“To me, as Gordon said, it was maybe one too far to go,” Edelman said.

Yet another author of the Clean Water Act said he and his colleague in the Senate were simply unable to come up with an adequate legislative solution.

Tom Jorling, then counsel to the Republican minority of the Senate Public Works Committee, said during a webinar last week hosted by Berkeley Law’s Center for Law, Energy & the Environment that he and the late Leon Billings, the first staff director for the Senate Public Works Subcommittee on Air and Water Pollution, couldn’t find the right “vehicle” to address nonpoint-source pollutants within the Clean Water Act. Billings later served as an adviser to then-Sen. Edmund Muskie (D-Maine), the subcommittee’s chair.

Instead, Sections 208 and 319 of the Clean Water Act require states to identify nonpoint-source pollutants and develop — but not necessarily implement — best management practices for activities that produce runoff, including agriculture, forestry and construction. Jorling lauded those sections for promoting practices like setbacks from streams and no-till farming.

“I can tell you, Leon and I failed. As hard as we tried to come up with some way of regulating nonpoint sources, we couldn’t come up with them,” said Jorling.

“It’s an area where there’s still conceptual problems as well as sort of drafting problems and just generally regulatory problems,” he continued. “I still haven’t seen anybody recommend something that would work.”

‘A wide range of forces’

The Clean Water Act was born at a time when large numbers of the nation’s waterways, from lakes and rivers to streams, were dumping grounds for raw sewage, industrial chemicals and dangerous metals, according to federal watchdogs.

The Potomac River, running through the nation’s capital, was said to smell like an “open sewer,” according to a Senate historical account, and anyone who fell in was advised to get a tetanus shot.

In 1966, President Lyndon Johnson signed the Clean Waters Restoration Act into law with Muskie’s backing.

In 1969, Cleveland’s Cuyahoga River burned for the last time — a blaze that was quickly extinguished yet fueled calls for an overhaul of the nation’s water protections (Greenwire, June 18, 2019).

A year later, lawmakers shepherded through the Clean Air Act and secured Nixon’s signature on Dec. 30, 1970. Jorling recalled that the president was facing pressure to veto the law, but that William Ruckelshaus, who had just come on board as the first EPA administrator, had lobbied strongly for its passage.

“They learned a great deal during the process of the Clean Air Act, and they had become much more sophisticated by the time the Clean Water Act was going through the process,” said Jorling. “So there were a wide range of forces that created the opportunity.”

Jorling recalled how in 1971, Muskie decided, after talking to both the minority and majority parties, that the Senate Public Works Subcommittee on Air and Water Pollution would focus on water pollution, kicking off 33 days of hearings to examine why federal statutes up to that point weren’t being effective in cleaning up the nation’s waters.

“What was behind that failure? Was it structural in the statute? The Clean Water Act really is an answer to the questions,” said Jorling. “It took the full two years to get to enactment. So we knew we were in for a long haul.”

At the time, Jorling held a law degree and a master’s degree in forest ecology, and had worked at agencies like the Interior Department before landing on Capitol Hill as minority counsel to the Senate Committee on Public Works.

His main partner in hammering out the Clean Water Act language was none other than Billings from the other side of the aisle — a longtime staffer for the majority’s Muskie (Greenwire, Jan. 20, 2014).

Although Jorling and Billings’ bosses came from opposing parties, they were united in pushing for cleaner water. The issue was simply how to get there.

Jorling and Billings, who died from a stroke in 2016, would spend long days drafting the language of the Clean Water Act while driving from Silver Spring, Md., to Capitol Hill in Billing’s Ford F-101 pickup truck.

“He couldn’t shake entirely his Montana background and upbringing,” Jorlings recalled of Billings. “We would ride back and forth; there was a little package store right at the beginning of North Capitol Street which we would pull off and go in and get a six-pack to help us get the rest of the way home.”

“It was said that we actually crafted the language in that truck,” Jorling continued. “And there was some truth to that, because both of us had Dictaphones, and we would dictate either a memo or language for the next committee print in that ride home because it was an opportunity; we had really good, focused, quiet time, away from the phones … we did accomplish a great deal.”

In the fall of 1972, their work paid off. On Oct. 18, the House and Senate overwhelmingly voted to override a last-minute veto from Nixon, who wrote to the Senate that the bill’s “laudable intent is outweighed by its unconscionable $24 billion price tag.”

‘Meaningful vehicles’

Today, sources inside and outside of the federal government are calling for changes to curb nonpoint pollution.

Last year, the Government Accountability Office said new regulations may be needed so EPA can better protect water bodies like the Chesapeake Bay, as states are struggling to meet timelines for halting runoff into the estuary (Greenwire, Oct. 5).

Groups like the Environmental Integrity Project, a nonprofit launched by former EPA attorneys in 2002, say Congress must strengthen the Clean Water Act by closing the loophole for agricultural runoff and other nonpoint sources (Greenwire, March 17).

Eric Schaeffer, the Environmental Integrity Project’s executive director, said voluntary activities like fencing animals out of streams and planting buffer zones have proved successful and could be made mandatory, and monitoring of rivers and waterways improved and expanded. Federal regulators could also require concentrated animal feeding operations to take responsibility for manure if it’s spread within a certain vicinity, or consider establishing national standards under the Clean Water Act — as the Clean Air Act does for nonattainment areas — to clean up polluted watersheds, he said.

In reflecting on the challenges of tackling nonpoint-source pollution, Jorling sees parallels to the Clean Air Act, which he said failed to curb pollution from the transportation sector because the government doesn’t have “meaningful vehicles” for changing human behavior.

“How can you come up with a regulatory scheme that affects citizens as opposed to institutions?” said Jorling. “The Clean Air Act failed with transportation controls by the EPA trying to write a program for Los Angeles which limited the number of days a person could drive and the number of places a person could park, and it just broke down.”

To this day, Edelman said he still gets steamed by criticisms he hears, namely that Congress didn’t have the “courage” to take on the farming sector in the 1970s.

“That got me a little heated, even at my age, because the truth of the matter was … if we had done nothing, the whole program … just wouldn’t have happened,” he said.

Wood agreed.

“It’s been too difficult over 50 years to figure out how best to do it,” he said. “It’s not so much that it wasn’t done in ’72; it’s being honest and saying it hasn’t been able to be done correctly in 2022.”