1491 And All That–American Outlook Nov/Dec ‘00

Richard A. Halpern

Earlier this year, when EPA Administrator Carol Browner was refining a sweeping new clean water rule, she said it would finally enable us, twenty-eight years after passage of the Clean Water Act, to “finish the job of restoring the nation’s waters”— in only another fifteen or twenty-five years. The environmental groups pushing for the rules were furious, and fired off an angry letter to Browner: “This delay is both unconscionable and contrary to law.” In 1972, Congress intended, they wrote, ”that water quality standards be attained within twelve years. It is now twenty-six years [since this new rule]…was to have been in place, and 15 years after the goal of clean water was to have been met.” This angry response by six powerful members of the environmental establishment ended with a threat to withdraw their support from the EPA rule.

To put it bluntly, the Clean Water Act (CWA) of 1972—acclaimed as “the American environmental movement’s single most important achievement”—isn’t up to the job. In fact, to put it very bluntly, the CWA is something of a fraud. More accurately known as the Federal Water Pollution Control Act, this law put in place a regulatory system that does not and cannot promise verifiable environmental benefit. Instead of pinpointing problems and dealing with them directly and efficiently, it has been striking out blindly for almost thirty years, attacking with equal force both imagined and real water-quality problems—sometimes hitting, sometimes missing, but always gobbling up billions of dollars at a gulp. The Clean Water Act was the equivalent of legislating bypass surgery for everyone in the country because someone near Cleveland died from a heart attack. It forced expensive wastewater treatment technologies on everyone everywhere, regardless of their actual water quality. It was indiscriminate, but it was even-handed, falling, like the rain, on the clean and the unclean alike. The price tag for the first twenty years was $540 billion.

With the Clean Water Act, Congress told the nation that the waters could be made clean, without a rigorous scientific evaluation, simply by installing technology to prevent anything harmful from getting into our waters. The preferred option was zero discharge. As EPA’s first administrator, William Ruckelshaus, cautioned Congress, however, in 1971 testimony before the House Committee on Public Works, zero discharge would replace the goal of clean water with a goal of implementing technologies that might or might not give us clean water; we would never know whether they were successful. “The social benefit we are all seeking—high water quality—is eliminated from the equation,” he told the committee. Committee chairman John Blatnik (D-MN), warned his colleagues that “the technology for ‘no discharge,’ at least that which is …feasible does not now exist.”

Child of Panic

The Clean Water Act was a child of panic, formed in a climate generated by television pictures of the 1969 Cuyahoga River fire near Cleveland and images on the evening news of naked sewer pipes discharging presumably noxious liquids into various bays, lakes, and rivers around the country. In 1970, as environmental writer Ron Bailey reminds us in a May 2000 Earth Day essay for Reason magazine, the first Earth Day produced “a torrent of apocalyptic predictions.” Ecologist Kenneth Watt warned that we had but five years to stave off Doomsday. Harvard biologist George Wald estimated civilization would only survive another fifteen or thirty years unless drastic action was taken. Others predicted that mass starvation, in which four billion would perish, was only a few years off.

In keeping with the eschatology of the day, Alabama congressman Robert Jones urged passage of the act: “if we wait too long, all the dollars on earth won’t buy back what we have lost…We may well destroy all hope of saving our environment.” In the Senate, the bill’s chief architect, Edmund Muskie (D-ME) postulated “a threat to life that could not be more real…could not be more desperate…grim realities of lakes, rivers, and bays where all forms of life have been smothered…and oceans which no longer provide us with food.” The “cancer of water pollution,” he said “threatens our very existence.” Ruckelshaus, by contrast, attempted to put the “grim reality” into perspective: “The fact of the matter is that in the country it is 10 percent of the dischargers causing 90 percent of the problem.” Both he and Russell Train, his eventually successor at EPA, urged Congress not to short-circuit the fundamental logic of problem solving, but to determine the nature and scope of the water quality problem, analyze the causes, and apply appropriate remedies to specific, documented deficiencies.

Unfortunately, intensifying the sense of crisis and mood of apprehension in Congress, was another obstacle to the rational, scientific approach Train and Ruckelshaus favored. The Senate Public Works Committee called it the “information gap.” No one had ever collected the data needed to define the problem. The nation’s waters were unmonitored, and because no two waterways are truly comparable, and no single water body is exactly like itself for two miles, two years, or even two months, site-specific monitoring over time was indispensable to establishing standards. Without credible baselines and with little understanding of natural background conditions, no one really knew what real-world water quality was or should be. Even worse, there was no way to demonstrate convincingly the impact a discharge had on the quality of the water receiving it. As New York Congresswoman Bella Abzug told Train with some justice: “You can’t tell who is causing the problem.” Train and Ruckelshaus begged for more time to resolve the scientific issues, but Congress, trapped in its own rhetoric of apocalypse, rejected their approach as unworkable. It abandoned the attempt to establish empirically-based water goals or even to define its terms in scientifically meaningful ways, putting off those crucial tasks to a future that ahs never arrived.

Congress said the purpose of the Clean Water Act was “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” but it did not define “integrity.” That was to be accomplished later, as Muskie told Senator Bob Dole (R-KS), through a “nationwide program of research…designed to accumulate, as quickly as possible, the vast amount of information which we still do not have.” The CWA set a national goal of achieving “zero discharge”—the complete cessation of discharge of pollutants—by 1985. But even this boldly-stated deadline was an illusion. When Senator James Buckley (C-NY) challenged the goal as unrealistic, “something…there is every reason to believe cannot be achieved by the year 1985,” he was given Muskie’s assurance that the 1985 deadline was only “a policy objective…not locked in concrete. It is not enforceable.”

The list of substances the CWA defined as “pollutants” was exhaustive: “The term ‘pollutant’’ means dredged spoil, solid waste…sewage, garbage, chemical wastes, biological materials, radioactive materials, heat…rock, sand…industrial, municipal, and agricultural waste…” The law might just as well have said “biological and non-biological materials” and left it at that. Under the CWA, it became illegal to discharge virtually any substance into the waters of the United States.

Some members of Congress, including Buckley, wondered if the act intended to outlaw all impacts on the nation’s waters resulting from human activity. As it turned out, Congress had indeed defined “pollution,” as “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water.” Anything humans did that affected water could be considered “pollution.” Buckley asked the senate leadership whether Congress was adopting “the 1491 Standard” for water quality—a restoration of pre-Columbian conditions. On the Senate floor, Tom Eagleton of Missouri agreed with Buckley that “it would be impossible…to restore the temperatures of our rivers without reforesting all the banks of all the tributary streams.” What then would “integrity of the nation’s waters” mean? The concept would not be defined by the EPA, Eagleton declared, but by the states. And the states, he added, would have one year to perform the (impossible) task of accumulating and evaluating that vast amount of information which Congress acknowledged no one had.

Lack of Integrity

Twenty-eight years later, we are still waiting for that information. In Congressional hearings earlier this year, the Association of Metropolitan Sewerage Agencies revealed that many water quality standards (the States’ definitions of “integrity”) were, in essence, ‘wish lists,” established in the 1960s and 1970s without significant scientific analysis. Officials are finding out, AMSA reported, that in many cases these standards “don’t make any sense.”

When it passed the act in 1972, Congress said, quite accurately, that it didn’t know the true conditions of our waters. The mandates that waters be inventoried and standards set grew out of precisely this complete dearth of knowledge. And this year’s Congressional hearings on Browner’s new rules made it all too clear that we don’t know very much more about their condition now, nearly thirty years later. Hence, the conventional wisdom on the Clean Water Act—that the legislation has dramatically restored to health two-thirds of the nation’s waters—is a fabrication, a myth created out of whole cloth.

The EPA is now telling us that 40 percent of America’s waters are unacceptably polluted, that 218 million Americans—nearly 80 percent of us—live within ten miles of polluted waters. The EPA’s claims, however, are based on water quality reports from the states, and the states admit, in a survey conducted by the Government Accounting Office (GAO) last spring, that their reports are a sham. They are based on outdated assessments, anecdotal evidence, and random observations, not scientific sampling. Only one state claims to have significantly more than half the data it needs to make a sound assessment of its waters, and only 10 percent of the nation’s river miles have ever been monitored, even once. In fact, some states report that the EPA encourages them to pad their list of polluted waters. Since federal dollars follow listed impairments, such padding may, at times, require little encouragement.

The information gap has some truly debilitating consequences. Attempting an analysis of water quality in the Mississippi River Basin for a 1992 report to EPA, Purdue University researcher Steven Lovejoy encountered major problems finding data. He found that “measurements of actual concentrations of pollutants and flows were nonexistent.” In desperation, Lovejoy sampled key locations during 1989. Without baseline data, however, he could not ascertain whether 1989 was an average year. Conclusions based on these data, therefore, have little validity and less value. Yet even data as impoverished as these are routinely reported as “best available data.” As such they become the basis for critical environmental policy decisions affecting the lives of millions of Americans.

After nearly thirty years and $600 billion worth of hit-and-miss technologies, we still don’t know what has been achieved or what still needs to be done. What’s worse, our lack of real-world data leaves environmental activists free to claim that “our water continues to be poisoned,” and provides them a pretext for demanding an evermore intrusive role in determining the national lifestyle. The Wall Street Journal, commenting on Browner’s new rule, observed, “Environmental policy has been all but separated from scientific evidence and is now achieved through administrative fiat to sate activists who themselves can no longer be bothered with letting science get in the way of what they want.” This is all a direct legacy of Congress’s 1972 inability to define its terms according to any “rule of reason” (in Democratic Texas Senator Lloyd Bentsen’s phrase), its decision to seek enhancement of the nation’s water quality without sound science, and the vagaries and vacuities of the criteria and deadlines outlined in the CWA. Thus it should not surprise us that the CWA has occasioned endless litigation. As Ruckelshaus observed in 1996, regarding the CWA, and other environmental statues, setting out on “the Mission Impossible of pursuing perfection leads directly to the devolution of all important environmental decisions to the courts.”

The only way to ensure the quality of our nation’s water is to commit the necessary resources to gathering sufficient information for a sound water-quality program grounded in science. Since 1972, the United States has spent close to $600 billion on wastewater treatment technologies. We have spent $1 trillion for air-quality monitoring in the last eight years alone, but between 1972 and 1990, we spent just $33 million to monitor our waters. A true and complete national water-quality inventory will take a full twenty years just to make a proper start. The GAO’s survey revealed not only that state officials lack good data, but that they are confident—like the homeowner who knows which windows need caulking—that they know where the major problems are and how to address them. There is one way to find out if they are right.