CE4505 – Surface Water Quality Engineering
Lecture 1. Surface Water Quality - The Legislative and Regulatory Mandate
A. In the Beginning1
The Water Pollution Control Act of 1948 (PL 80-845) was the first comprehensive statement of
Federal interest in clean water programs. The legislation carried a strong states-rights flavor, it
was “… the policy of Congress to recognize, preserve, and protect the primary responsibilities
and rights of the States in controlling water pollution.” There were no federally required goals,
objectives, limits, or even guidelines. There were no mandatory indicators of whether pollution
was even occurring.
Federal involvement was most strictly limited when it came to enforcement. Under PL
80-845, enforcement applied only to a pollution problem involving “interstate waters …
which endangers the health or welfare of persons in a State other than that in which the
discharge originates, and is … declared a public nuisance.”
Upon finding a “public nuisance,” the Surgeon General was required to give formal
notice of the problem to the State and the discharger creating the problem. After a
reasonable period of time he could give a second notice if no corrections were made.
Should the second notice not produce a solution, again within a reasonable period of
time, a public hearing could be called on the problem. Finally, after an investigation,
two notices, and a public hearing, the U.S. Attorney General could be requested to bring
suit against the discharger on behalf of the United States … but only with the consent of
the State in which the discharge originated.
These limitations on a uniform, federal approach to protecting and managing the Nation’s water
resources insured that pollution would continue unabated.
B. Awakening
The period 1950 – 1970 was one of sustained economic growth and that activity was
accompanied by an uneasy public sense of declining national “health”. Rachel Carson’s book,
Silent Spring (published in 1962) focused public attention on the negative impacts of pesticide
production and use and is often credited with stimulating a grassroots environmental movement.
That movement came of age in 1970 when Senator Gaylord Nelson of Wisconsin proposed a
national teach-in on the environment,
I am convinced that all we need to do to bring an overwhelming insistence of the new
generation that we stem the tide of environmental disaster is to present the facts clearly
and dramatically. To marshal such an effort, I am proposing a national teach-in on the
crisis of the environment to be held next spring on every university campus across the
Nation. The crisis is so imminent, in my opinion, that every university should set aside 1
day in the school year-the same day across the Nation-for the teach-in.2
In April of 2010 we celebrated the 40th Anniversary of this ‘Earth Day”.
CE4505 – Surface Water Quality Engineering
C. Congressional Considerations
Meanwhile, Congress reacted to increasing public concern about the impact that human activity
could have on the environment and set about considering a declaration of national environmental
policy. Conflict was clearly evident.
In the early debate on American environmental law, there was much discussion
regarding the economic value of a human life. For some, it was important to determine
how much pollution control could be required before it became uneconomic; that is,
before lives saved were not worth the investment in environmental protection.3
This ‘discussion’ reflected, in part, fundamental differences between the U.S. House of
Representatives and the U.S. Senate. The bicameral (two-house) setup of Congress was a natural
extension of the nation’s Founders’ concept of checks and balances.
Members of the House represent small, geographically defined districts within each state and
their votes are based primarily on how a bill might impact their locality. The House faces
election every 2 years and thus its members are always running for election. These two factors
insure that House members maintain close personal contact with their constituents, casting votes
that reflect the ‘short-term passions’ of those which they represent. Economic considerations
find themselves high on the agenda of members of the House of Representatives.
Senators, on the other hand, are elected by and represent all voters of their state. Senators tend to
consider how legislation would impact the nation as a whole. They are elected for six-year
terms, insulating somewhat from the short-term passions of public opinion. Members of the
Senate are thus more likely to consider the long-term interests of our country.5
The attitudes of members Congress were also influenced by the issue of States’ right. The Tenth
Amendment to the Constitution states that, “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” Simply stated, the doctrine of States Rights serves to prevent big government from
‘coming down here and telling us how to run our business.’ In the days leading up to the Civil
War, southerners argued that protection of slavery was a right of the states and that position
continued to be reflected in resistance to segregation in the 20th Century. Contemporary States’
Rights issues include gay marriage, the use of medical marijuana and assisted suicide.6 Most
recently, a States’ Rights orientation has been associated with the Tea Party Movement.7
Thus the groundswell of public interest in affairs environmental would need to face serious
challenges in Congress in promoting the declaration of a national environmental policy. But the
presence of key players in the Senate with a history of support for the environment, Henry
(Scoop) Jackson (D-Washington) and Edmund Muskie (D-Maine), a President (Nixon)
recognizing the expediency of such legislation and broad popular support, changes were in the
wind.
CE4505 – Surface Water Quality Engineering
D. NEPA – The National Environmental Policy Act
The bill that ultimately received the support of the House, the Senate and the President was the
National Environmental Policy Act of 1969, signed into law on January 1, 1970. The purposes
of the act included,

declaration of a national policy which will encourage productive and enjoyable harmony between
man and his environment;

promotion of efforts which will prevent or eliminate damage to the environment and biosphere
and stimulate the health and welfare of man; and

enrichment the understanding of the ecological systems and natural resources important to the
Nation.5
Addressing the ecology vs. economic debate, NEPA required that the Federal government,
insure that presently unquantified environmental amenities and values be given
appropriate consideration in decision-making along with economic and technical
considerations.5
by providing,
in every recommendation or report on proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment, a detailed statement by the
responsible official on -(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be
implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the
maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved
in the proposed action should it be implemented. 5
We know this latter requirement today as the Environmental Impact Statement.
Despite this landmark ‘declaration of environmental policy’, many in the environmental
movement were dissatisfied. NEPA had no teeth. There was nothing to regulate or prohibit
action destructive to the environment other than a requirement that a ‘detailed statement’ be filed
detailing the potential for destruction prior to initiation of actions. It has been argued that it was
the absence of teeth that permitted passage of this national policy and credit is given for the
requirement that such actions be made public. In this capacity, NEPA has become one of the
primary mechanisms through which the public is able to participate in the federal decisionmaking process.
CE4505 – Surface Water Quality Engineering
With an initial absence of regulations specifying implementation procedures and no agency
authorized to enforce the law, federal agencies reacted in different ways to NEPA’s
requirements. Some had difficulty complying with the law’s EIS requirements. It was now clear
that regulatory legislation, i.e. ‘laws with teeth’ would be required to carry forward the policy
declarations of NEPA. The decade of the 1970s was unprecedented with respect to the passage
of environmental legislation,
1969
1970
1970
1972
1972
1972
1972
1972
1973
1974
1975
1976
1976
1976
1977
1977
National Environmental Policy Act
Environmental Protection Agency established
Occupational Health and Safety Act
Consumer Product Safety Act
Federal Insecticide, Fungicide and Rodenticide Act
Clean Water Act
Marine Protection, Research and Sanctuaries Act
Noise Control Act
Endangered Species Act
Safe Drinking Water Act
Hazardous Materials Transportation Act
Resource Conservation and Recovery Act
Solid Waste Disposal Act
Toxic Substances Control Act
Clean air Act Amendments
Clean Water Act Amendments
E. The Clean Water Act
1) Overview of the Act
Differences in perspective within Congress are well reflected in debate over the Clean Water Act
States’ Rights interests and the local/regional focus of the House of representatives (economic
concerns) stood in contrast to the broader perspective of the Senate (non-economic issues),
House leaders were willing to work with the statutes at hand, the 1899 Refuse Act and a
concept of water quality standards introduced in 1965. House members recognized the
importance of economics … and preservation of the role of States in any new plan.
Senate leaders … adopted the principal that restoring water quality and protecting public
health should be the touchstones of new legislation. At issue was whether the goals and
requirements should be based on economic or ecological principles. The Senate wanted
ecological principles to dominate.1
Senator Edmund Muskie of Maine (vice-presidential candidate in Humphrey versus Nixon and
later Secretary of State under Carter) emerged as the chief spokesperson for an approach founded
on ecological rather than economic principles. Muskie and his supporters were successful.
CE4505 – Surface Water Quality Engineering
On October 18, 1972, Congress overrode Nixon’s presidential veto to enact the Federal Water
Pollution Control Act Amendments of 1972 (PL 92-500, later re-named the Clean Water Act).
Despite its title (amendments) the new statute did not continue the basic components of previous
laws as much as it did set up new ones. On the basis of the Act’s new provisions, the Federal
government, through the newly-established Environmental Protection Agency assumed the
dominant role in directing and defining water pollution control programs across the country.
The objective of this act was to,
“restore and maintain the chemical, physical and biological
integrity of the Nation’s waters.”
Here was clear expression of the Senate’s position that ecological concerns should be placed
ahead of economic concerns. Elaborating on this point, two ‘national goals’ were established,
(1) elimination of the discharge of pollutants into navigable waters by 1985; and
(2) achieving an interim water quality level that would protect fish, shellfish and
wildlife while providing for recreation in and on the water wherever attainable.
The first (“no-discharge”) goal was included in the act to encourage land application of
municipal effluents and the reuse and recycling of industrial process water and chemicals. The
intent of the second goal (interim water quality) has been summarized as meaning that surface
waters must be “fishable-swimmable”. Even though these goals may be unattainable in the short
run, the significantly affect the stringency of limitations required.8
2) Attaining the Objective – A Technology-Based Approach
In a bold and broad-based first step, the Act established technology-based effluent limits
establishing a minimum level of treatment required by direct industrial dischargers and
publically owned treatment works (POTWs) and a complementary system of pretreatment
requirements for dischargers to POTWs.
(a) technology-based effluent limits for existing direct discharges required, by 1977,
application of the best practicable control technology currently available and by 1983, the best
available technology economically achievable;
(b) technology-based effluent limits for new source direct discharges required the greatest
degree of effluent reduction … achievable through application of the best available demonstrated
control technology, processes, operating methods and other alternative, including where
practicable, zero discharge. Note here, the option to consider pollution prevention and ‘green
engineering’ approaches. Standards of performance were developed ‘by industry’, e.g. pulp and
paper mills, iron and steel manufacturing, organic chemical manufacturing.
(c) pretreatment standards for indirect dischargers sought to achieve two objectives:
(1) protect the operation of the POTW
(2) prevent the introduction of pass-through pollutants
CE4505 – Surface Water Quality Engineering
(d) technology-based standards for POTWs required adoption of secondary treatment,
defined as 85% removal (30 mg/L) of BOD and suspended solids and coliform concentrations
not to exceed 200 cfu/100 mL.
In order to support implementation of secondary treatment at POTWs, the Act authorized federal
monies to be made available through construction grants. In the 1970s and 1980s, over $60
billion in construction grants were authorized.9 U.S. EPA shifted their approach to supporting
POTW construction in 1990, ending the grant program and creating the Clean Water State
Revolving Fund (CWSRF) which has, to date, funded almost 25,000 low interest loans totaling
$74 billion.10
3) Attaining the Objective – A Water Quality-Based Approach
Technology-based standards prescribe minimum standards of performance for municipal and
industrial dischargers without regard to the quality of receiving waters. When those standards
are insufficient to support a particular ‘beneficial use’, the focus switches to a water qualitybased approach.
The right to establish water quality standards remained with the States. U.S. EPA review of all
existing State standards was required and, where those standards were inconsistent with the Act,
revision was mandated. Whenever the State revised or adopted a new standard, the designated
use of the navigable waters involved and the water quality criteria for such waters (based upon
such uses) were specified. Standards are required to take into consideration their use and value
for public water supplies, propagation of fish and wildlife, recreational purposes, and also taking
into consideration their use and value for navigation. The issue of ‘use’ is part of the ‘fishableswimmable’ goal of the Act. An ‘aquatic life use’ is the use of the water by a healthy, balanced
population of native aquatic life, i.e. ‘fishable’. A ‘recreational use’ requires protection of public
health and safety, i.e. ‘swimmable’.
Early federal efforts to restore water quality dealt largely with conventional pollutants, e.g.
suspended solids, oxygen-demanding materials, fecal coliforms and pH. It was becoming
evident that a new class of materials, toxic pollutants, included tens of thousands of chemicals,
each with differing properties and having complex impacts on the health of aquatic organisms
and humans including mortality, chronic and sub-lethal endpoints such as increased risk of
cancer, and reproductive or neurological effects. Further, some of these chemicals accumulate in
living organisms and become more concentrated as they move up the food chain (through
bioaccumulation or biomagnification), posing toxicity problems even at very low levels.
4) Toxic Substances
The 1972 Act envisioned control of individual chemicals through the application of technologybased standards, i.e. BAT and BPT standards. This approach required chemical-by-chemical
standards and inadequate biological and toxicological data, scientific disputes, and limited
resources critically slowed the process.
CE4505 – Surface Water Quality Engineering
Dissatisfied with EPA's progress in controlling toxic discharges, the Natural Resources Defense
Council (NRDC) and other environmental groups sued U.S. EPA. In 1976 a court-approved
settlement agreement was reached which was ratified by inclusion in the 1977 amendments to
the Clean Water Act. Under the agreement U.S. EPA was required to regulate 129 distinct
substances now commonly referred to as "priority pollutants"; these included carcinogens,
suspected carcinogens, or pollutants known to be seriously toxic at low levels. Technologybased control standards were established for each of the priority pollutants and incorporated into
permits of 70,000 dischargers in 51 industrial categories.
AROCHLOR 1254
Mercury
Carcinogen
Trichloroethylene
Carcinogen
Cardiovascular/ Blood Toxicant
Cardiovascular/ Blood Toxicant
Cardiovascular/Blood Toxicant
Developmental Toxicant
Endocrine Toxicant
Developmental Toxicant
Endocrine Toxicant
Developmental Toxicant
Gastrointestinal/Liver Toxicant
Gastrointestinal/Liver Toxicant
Gastrointestinal/Liver Toxicant
Immunotoxicant
Immunotoxicant
Immunotoxicant
Kidney Toxicant
Kidney Toxicant
Neurotoxicant
Neurotoxicant
Neurotoxicant
Reproductive Toxicant
Reproductive Toxicant
Reproductive Toxicant
Respiratory Toxicant
Respiratory Toxicant
Skin/Sense Organ Toxicant
Skin/Sense Organ Toxicant
Skin or Sense Organ Toxicant
Endocrine Toxicant
The agreement also required EPA to develop water quality criteria for each of the priority
pollutants consisting of the best scientific assessment of the concentrations of specific chemicals
in water which will protect aquatic life or human health. Criteria describe the quality of water
which will support a particular use and are incorporated in State water quality standards.
Recognizing the limitations of technology-based controls, the 1987 Amendments to the Clean
Water Act required that each State identify waters in that state where the application of
technology-based effluent limitations does not result in the achievement of water quality
standards for toxic pollutants. Where noncompliance results from substantially one source, the
State is required to develop individual control strategies to bring the water body into compliance
with water quality standards.
5) The Permitting Process
Having designated uses for a water body and established water quality standards supporting that
use, it remained to regulate discharges in a manner through which those standards would be met.
This was accomplished through a permitting program entitled the National Pollutant Discharge
Elimination System (NPDES). Here, any person responsible for the discharge of a pollutant into
any waters of the United States from any point source must obtain a permit. Permits are
typically issued by the States (SPDES) or, where states have not elected to take over
CE4505 – Surface Water Quality Engineering
responsibility, by U.S. EPA. The permit specifies the loading allowed by the discharger and
establishes a monitoring, record-keeping and reporting process.
6) Penalties
Penalties for violation of permit conditions are not to exceed $32,500 per day for each violation.
Class I penalties are not to exceed $32,500 and Class II penalties $157,000.
7) Total Maximum Daily Loads (TMDLs) – where the water quality standard is not attained
Having put the permit program into effect, each State shall identify and prioritize those waters
for which effluent limitations are not sufficiently stringent to meet water quality standards. For
each of those waters, in accordance with priority rankings, each State shall establish the total
maximum daily load (TMDL) necessary to meet water quality standards, taking into account
seasonal variations and providing a margin of safety for any lack of knowledge concerning the
relationship between effluent limitations and water quality.
8) Antidegradation – where the water quality standard is attained
Where the quality of the waters equals or exceeds levels required by the designated use, i.e.
water quality standards, revision of TMDLs and wasteload allocation must proceed in
accordance with an antidegradation policy that,
• Tier 1 – protect existing uses – permit no activity that would eliminate, interfere with or
lower water quality necessary to support existing uses.
• Tier 2 – maintain high quality waters – avoid or minimize any lowering of the water quality
of waters that exceed standards. In order to allow additional pollution loading, it must be
shown that the increase is necessary, there are no alternatives to increasing the pollution,
and the activity generating the pollution provides important economic or social
development to the community (i.e. jobs, sanitary services, etc.).
• Tier 3 – protect outstanding waters – strict protection, no degradation allowed.
CE4505 – Surface Water Quality Engineering
References
1. Water Pollution Control Federation. 1982. The Clean Water Act with Amendments. Water
Pollution Control Federation, Washington, D.C. 132 pp.
2. Congressional Record, Volume 115, No 164, October 8, 1969; as cited by Wikipedia.
3. THE ENVIRONMENTAL RIGHT IS NOT FOR SALE. Remarks by The Hon. Leon G.
Billings, Maryland House of Delegates, June 1997.
4. KEYNOTE ADDRESS. Remarks of Leon G. Billings at the 75th Annual Meeting
Missouri Water Environment Association Osage Beach, Missouri, March 22, 2004.
5. http://usgovinfo.about.com/od/uscongress/a/whyhouseandsenate.htm
6. http://en.wikipedia.org/wiki/States'_rights
7. http://www.foxnews.com/politics/2010/02/05/tea-party-movement-produces-new-politicalorganization/
8. Government Institutes, Inc.
9. http://www.epa.gov/owm/cwfinance/construction.htm
10. http://www.epa.gov/owm/cwfinance/cwsrf/
11. http://www.scorecard.org/chemical-groups/one-list.tcl?short_list_name=pp