research paper

The Evolution of Water Pollution Control

in the United States-State, Local,

and Federal Efforts, 1789-1972: Part I

William L. Andreen*

I. INTRODUCTION ........................................ 146 II. A CRisIs IN THE MAKING: WATER POLLUTION IN

AMERICA FROM COLONIAL TIMES TO 1920 ............. 160 A. Epidemics and the Development of Municipal

Water Systems .................................... 161 B. The Development of Modern Sewerage Systems.. 164 C. Exporting Infectious Waterborne Disease to

Downstream Communities ........ ............... 168

D. Industrial Pollution: Unavoidable, Inevitable, and Ignored .......................................... 170

E. Fighting Waterborne Disease: Sewage Treatment vs. Water Filtration ............ ................... 171

F. Pittsburgh: A Critical Showdown in the Debate Over Sewage Treatment .......................... 175

III. THE DEVELOPMENT OF STATE REGULATION: 1869-1972. 178 A. The Early Years: 1869-1920 ....................... 178 B. Despite a Few Innovations, A Bad Situation Gets

Worse: 1920-1945 ..................... 180 1. The Initial Development of Water Quality

Standards .................................... 182

2. Early Interstate Cooperation ....... .......... 183

* Edgar L. Clarkson Professor of Law, The University of Alabama School of Law; B.A., The College of Wooster;J.D., Columbia University. The author would like to acknowl- edge the following for providing support during the preparation of this article: The Uni- versity of Alabama Law School Foundation, the John A Caddell Environmental Law Fund, and the Edgar L. Clarkson Fund. In addition, the author is grateful to Wythe Holt and Bob Kuehn for their helpful comments on a draft of this article, and to Rhonda Richardson Caviedes and Matthew C. Henderson for their fine research assistance.

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146 STANFORD ENVIRONMEN7AL LAWJOURNAL

3. Public Health Concerns Continue to Dominate State Programs .......... .......... 184

4. The New Deal: Federal Financing of Local Sewer Projects ............................... 185

5. Enforcement Shunned in Favor of Cooperation and Compromise ....... ........ 186

6. The Impact of World War II ........ ......... 188 C. Too Little, Too Late: 1945-1972 . ............ 189

1. The Reorganization of State Water Pollution Control Efforts ............................... 189

2. The Difficult Challenge of Implementing Water Quality Standards ........... .......... 191

3. The Early Development of Uniform Effluent Limitations ............................... 192

4. Weak Enforcement Continues ................ 194 5. A Few Success Stories ........................ 196 6. The Rising Tide of Dissatisfaction with State

Efforts ............................... 196 IV. CONCLUSION ... 199

I. INTRODUCTION

A river is more than an amenity, it is a treasure.'

In October 2002, the United States observed the thirtieth anni- versary of one of the most ambitious statutes ever enacted-the Federal Water Pollution Control Act Amendments of 1972,2 better known as the Clean Water Act. The Act stands as a monument to those who believed and continue to believe that government, par- ticularly the federal government-when given adequate resources and the proper tools-can successfully address major environmen- tal problems. The Act's provisions, however, also reveal a more skeptical view of government stemming from a perception that ad- ministrative agencies are prone to capture by the regulated com- munity.' The Clean Water Act tries to counter this perception and thus contains a series of mandatory duties, regulatory schedules,

1. NewJersey v. New York, 283 U.S. 336, 342 (1931) (Holmes,J.). 2. Pub. L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C. §§ 1251-1376

(2000)). 3. See generally MARTIN SHAPIRO, WHO GuARDs THE GuARDLANs? JUDICIAL CONTROL OF

ADMINISTRATION 65-67 (1988) (discussing the development of the capture theory); Robert V. Percival, Checks without Balance: Executive Office Oversight of the Environmental Protection Agency, 54 LAw & CONTEMP. PROBS. 127, 190 (1991) (stating that environmentalists had

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and deadlines that limit administrative discretion. Furthermore, the Act contains a citizen suit provision that offers the public an opportunity both to compel the government to perform its duties, and to sue polluters should the government fail to enforce the re- quirements of the Act. 4

The Clean Water Act gave birth to a huge regulatory and public works effort that continues to this day. Its regulatory program and provisions granting financial assistance for the construction of mu- nicipal treatment facilities have succeeded in significantly reducing the direct discharge of pollutants to the nation's rivers and lakes.

5

As a result, water quality in many areas has greatly improved. 6

However, problems remain. For instance, permit compliance is often inconsistent, 7 and too many municipal systems discharge raw

long believed that mission-oriented agencies had become "the captives of business interests").

4. See William L. Andreen, The Evolving Law of Environmental Protection in the United

States: 1970-1991, 9 ENVTL. & PLAN. LJ. 96, 98-100 (1992) [hereinafter Andreen, Envtl. Prot. in the U.S.].

5. Between 1973 and 1987, for example, the amount of oxygen-consuming organic material directly discharged by industry fell 93%. See U.S. ENVTL. PROT. AGENCY, OFFICE OF POLICY, PLANNING, AND EVALUATION, ENVIRONMENTAL INVESTMENTs: THE COST OF A CLEAN ENVIRONMENT: A SUmmARY REPORT TO CONGRESS 54 to 5-5 (Dec. 1990). Much of this de-

cline was due to the fact that many companies have chosen to divert wastewater to munici-

pal treatment facilities rather than build their own treatment capacity. Industry, in fact,

directs approximately 73% of its organic waste to publicly owned treatment plants. See id.

Despite an increase of 35% in the amount of organic material sent to municipal treatment

facilities between 1972 and 1996, these municipal plants have succeeded in reducing their

discharge of organic material by 43%. See Andrew Stoddard et al., Progress in Water Qual-

ity: An Evaluation of the Environmental and Economic Benefits of the 1972 Clean Water

Act, in PROCEEDINGS OF THE WATER ENVIRONMENT FEDERATION 83 (May 3-6, 1998, Denver).

6. Analyzing records aggregated over five-year periods from 1961-1965 and 1986-1990

for dissolved oxygen levels, a recent study found that "dramatic improvements" had oc-

curred at many locations in the Northeast and Midwest. Stoddard et al., supra note 5, at 84.

The greatest improvements were found in such places as the Lower Susquehanna, the

Cuyahoga, the Lower Fox River in Wisconsin, and the Lower Spokane River in Washing-

ton. Moreover, the study found "significant improvement" in dissolved oxygen levels in

eight of the eleven major river basins in the Midwest, Southeast, West Coast, and Middle

Atlantic states. Id. at 85. See also Debra S. Knopman & Richard A. Smith, 20 Years of the Clean

Water Act, 35 ENV'T 16, 34 (1993) (discussing studies that revealed significant improvement

in phosphorus and fecal coliform bacteria concentrations between 1974 and 1989).

7. From 1992-1994, 18-27% of major dischargers-industrial as well as municipal

plants-were in significant noncompliance with the discharge limits in their water pollu-

tion permits, and the actual number could be twice as high. GEN. ACCOUNTING OFFICE,

MANY VIOLATIONS HAVE NOT RECEIVED APPROPRIATE ENFORCEMENT ATTENTION 1-2, 4

(1996). A polluter is deemed to be in "significant noncompliance" by the U.S. Environ- mental Protection Agency (EPA) whenever its discharge of toxic pollutants exceeds the average monthly permit limit by 20% or more in any two months of a six-month period or whenever its discharge of other pollutants (known as conventional pollutants) exceeds the average monthly limit by 40% or more in any two months of a six-month period. Id. at 3.

148 STANFORD ENVIRONMIENTAL LAWJOURATAL

sewage whenever it rains.8 Too many streams and lakes continue to fail to meet water quality standards. 9 Most noticeably, the Act has never taken adequate aim at what has become the most significant source of water pollution in the country: non-point source pollu- tion-the indirect discharge of polluted runoff from agricultural fields, parking lots, mining operations, forest clear cuts, construc- tion sites, and livestock operations.1 0

Despite the progress it has achieved, the Clean Water Act has been the target of a great deal of criticism. Some scholars have contended that the regulatory approach of command-and-control statutes" like the Clean Water Act is unnecessarily rigid, expensive and inefficient."2 Other scholars have criticized the way in which the Clean Water Act and similar statutes "centralized" pollution

8. Hundreds of municipal systems are plagued by sanitary sewer overflows that are releases of raw sewage from a collection system before the waste reaches the treatment plant. The overflows commonly result from the infiltration and inflow of large amounts of storm water that overwhelm the capacity of the existing sewer lines or the treatment plant or both. See U.S. ENVTL. PROT. AGENCY, 1996 CLEAN WATER NEEDS SURvEY, REPORT TO CON- GRESS 7 (1997). Another problem is posed by the overflows that result from 1,100 older municipal systems, primarily in the Northeast and Midwest, that collect their sanitary sew- age and storm water runoff in combined sewer systems. See NATURAL RESOURCES DEFENSE COUNCIL, WHEN IT RAINS .. . IT POLLUTES: A SURVEY OF RAw SEWAGE POLLUTION IN 14 U.S. CITIES (April 1992).

9. Out of a total of 16.8 million acres of lakes surveyed in 1996, 39% were impaired due to pollution or habitat degradation. and out of nearly 700,000 miles of surveyed rivers and streams, 36% failed to fully support their water quality classification. U.S. ENVTL PROT. AGENCY, OFFICE OF WATER, NATIONAL WATER QUALrITY INVENTORY, 1996 REPORT TO CON- GRESS 30, 47-48 (1998) [hereinafter 1996 NATIONAL WATER QUALITY INVENTORY].

10. See id. at 421; NANCY RICHARDSON HANSEN, HOPE M. BABCOCK & EDWIN H. CLARK II, CONTROLLING NONPOINT-SOURCE WATER POLLUTION 17-23 (1988); Daniel R. Mandelker, ControllingNonpoint Source WaterPollution: Can It BeDone?, 65 CHI.-KENT. L. REv. 479 (1989). Other sources of nonpoint source pollution include seepage from septic tanks and the deposition of airborne pollutants such as nitrogen and acid precipitation. See 1996 NA- TIONAL WATER QUALITY INVENTORY, supra note 9, at 421.

11. Command-and-control regulatory statutes typically enforce uniform standards- often derived from the use of a particular kind of treatment technology-through a permit system. See Robert W. Hahn & Robert N. Stavins, Incentive-Based Environmental Regulations: A New Era From an Old Idea?, 18 ECOLOGY L.Q. 1, 5 (1991). Critics of the approach often intend to use the term in a pejorative manner. The design of the Clean Water Act is not exclusively command-and-control-oriented since permit conditions, otherwise based on technology-driven limitations, must be tightened when required to meet water quality stan- dards. See EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205 n.12 (1976); Jeffrey M. Gaba, Federal Supervision of State Water Quality Standards Under the Clean Water Act, 36 VAND. L. REv. 1167, 1169-70 (1983).

12. See, e.g., Eric W. Orts, ReflexiveEnvironmental Law, 89 Nw. U. L. REv. 1227, 1236-64 (1995); Cass R. Sunstein, Paradoxes of the Regulatory State, 57 U. CHI. L. REv. 407, 420-21 (1990); Bruce A. Ackerman & Richard B. Stewart, ReformingEnvironmental Law, 37 STAN. L. REv. 1333, 1334-40 (1985).

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control in the United States by transferring the primary authority for policy creation and standard setting to the federal government, while leaving, for the most part, the more mundane implementa- tion and enforcement responsibilities to state governments.'

3 Many politicians, business leaders, and state regulators have echoed these critiques and advocated for some degree of devolution in regulatory authority from the "Beltway" and the U.S. Environmen- tal Protection Agency (EPA) to the states."4 This critical climate was also reflected to some extent in the Clinton administration's efforts at "regulatory reinvention"' 5 and the efforts of a number of aca- demics, think tanks and industry groups to "rethink" environmen- tal policy.' 6

Today, the Bush Administration continues to develop a number of Clinton-era initiatives, such as Project XL'7 and water quality

13. See, e.g., Henry N. Butler &JonathanR. Macey, Externalities and the MatchingPrinci- ple: The Case for Reallocating Environmental Regulatory Authority, 14 YALE L. & POL'Y REV. 23 (1996); James E. Krier, On the Topology of Unifornn Environmental Standards in a Federal Sys-

tem-and Why It Matters, 54 MD. L. REv. 1226 (1995); Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 MINN. L. REv. 535 (1997); Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race to the Bot- tom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REv. 1210 (1992).

14. See Clifford Rechtschaffen, Deterrence v. Cooperation and the Evolving Theory of Envi- ronmentalEnforcement, 71 S. CAL. L. REv. 1181,1182-87 (1998); RobertV. Percival, Regulatory

Evolution and the Future of EnvironmentalPolicy, 1997 U. CHI. LEGAL F. 159, 167-70; Barry G.

Rabe, Power to the States: The Promise and Pitfalls of Decentralization, in ENVIRONMENTAL POLIcY

32, 47-51 (Norman J. Vig & Michael E. Kraft eds., 3d ed. 1997).

15. Although not as broad or as far-reaching as the Republican efforts, the reinven-

tion projects at EPA during the Clinton years stressed such things as increased regulatory

flexibility, compliance assistance, and new ways of assessing the vitality of the government

enforcement program. See U.S. ENVTL. PROT. AGENCY, OFFICE OF REINVENTION, THE CHANG-

ING NATURE OF ENVIRONMENTAL AND PUBLIC HEALTH PROTECTION: AN ANNUAL REPORT ON

REINVENTION 2-4, 30 (1998); Walter A. Rosenbaum, Escaping the "Battered Agency Syndrome": EPA s Gamble with Regulatory Reinvention, in ENVIRONMENTAL POLICY, supra note 14, at 165, 176-81. Under Project XL, for example, the EPA allowed companies 'to develop their own

site-specific plans for achieving environmental benefits in exchange for exemptions from

existing and future command and control requirements." Rena I. Steinzor, ReinventingEn- vironmental Regulation: The Dangerous Journey from Command to Self-Control, 22 HARV. ENVTL.

L. REV. 103, 122 (1998).

16. See, e.g., NAT'L ACAD. PUB. ADMIN., SETTING PRIORITIEs, GETTING RESULTS: A NEW

DIRECTION FOR EPA (1995); WILLIAM D. RuCKELsIHAUs & KARL HAUSKER, ENTERPRISE FOR

THE ENVIRONMfENT, THE ENVIRONMENTAL PROTECTION SYSTEM IN TRANSITION: TOWARD A

MORE DESIRABLE FUTURE (1998); THINKING ECOLOGICALLY: THE NEXT GENERATION OF ENVI-

RONMENTAL POLICY (Marian R. Chertow & Daniel C. Esty eds., 1997). For a list of initiatives

by groups such as the Aspen Institute and the National Environmental Policy Institute, see

Percival, supra note 3, at 171 n.64.

17. For a brief description of Project XL, see supra note 15 and references cited

therein.

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trading,"8 that aim to move beyond command-and-control regula- tion by injecting more "flexibility" and lowering the costs of imple- menting the Clean Water Act."9 The Bush Administration has also supported the movement in favor of shifting funds and responsibil- ities back to state governments. For the past two years, it has advo- cated significant cuts to the EPA's enforcement budget, while proposing a new federal grant program that supports state enforcement. 2 0

This debate over the future direction of environmental policy is often conducted in largely theoretical terms involving risk assess- ment,2 ' federalism 2 2 or civic republicanism, 2 3 or some sort of eco-

18. Under a water quality trading program, a municipal sewage plant, for example, could obtain a credit for water quality related nutrient or sediment requirements in its permit by paying a farmer to change his cropping practices and planting shrubs alongside a stream. See Current Developments, 33 Env't Rep. (BNA) 1106 (2002) (discussing the EPA's proposed policy for water quality trading program); see also Current Developments, 33 Env't Rep. (BNA) 828-31 (2002) (setting forth the text of EPA's proposed policy). Environmen- talists worry, of course, that water quality trading will create loopholes and increase the "mushiness factor" in water pollution discharge permits. There is also concern about a situation where a decrease in a discharge in one portion of a waterway is used to offset an increase in a different portion of the waterway. See Current Developments, 33 Env't Rep. (BNA) 800, 801 (2002). As one environmentalist put it, "the devil is in the details." Id at 801.

19. See Current Developments, 32 Env't Rep. (BNA) 499 (2001) (current EPA Adminis- trator Christine Todd Whitman touting Project XL and the National Environment Per- formance Partnership System as "excellent" programs which create "incentives" and produce "positive results"); CurrentDevelopments, 32 Env't Rep. (BNA) 1919 (2001) (report- ing on Bush-era EPA giving regulatory relief under Project XL to five sewage treatment facilities); Current Developments, 32 Env't Rep. (BNA) 2125 (2001) (Bush EPA putting final touches on the Performance Track incentives program launched by Clinton-era Adminis- trator Carol Browner); CurrentDevelopments, 33 Env't Rep. (BNA) 1106 (Bush-era EPA seeks comments on proposed policy for water quality trading program-a program which began, in limited form, in 1996).

20. In 2001, the Bush Administration proposed cutting 270 positions in the EPA's enforcement program while also proposing to give the states $25 million in enforcement grants. Congress rejected both proposals. In 2002, the Administration went back to the drawing board and this time proposed cutting EPA's enforcement staff by 146 positions while creating a $15 million grant program to support state enforcement. See Current Devel- opments, 33 Env't Rep. (BNA) 286 (2002). Apparentdy, the EPA's current leadership be- lieves that the states will be the source of added enforcement. See id. (referring to comments by Administrator Christine Todd Whitman).

21. See STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TowARD EFFECTIVE RISK REGU- LATION (1993); RIsK v. RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT (John D. Graham &Jonathan Wiener eds., 1995); Daniel C. Esty, What's the Risk in Risk, 13 YALE J. REG. 603 (1993).

22. See Richard L. Revesz, Federalism and Environmental Regulation: A Normative Critique, in THE NEW FEDERALISM: CAN THE STATES BE TRUSTED? 97 (John Ferejohn & Barry R. Wein- gast eds., 1997); Kirsten H. Engel, State Environmental Standard-Setting: Is There a "Race" and Is It "to the Bottom"?, 48 HASTINGS LJ. 271 (1997).

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nomic analysis such as cost-benefit balancing, faith in market-based solutions, 2 4 or public choice theory.2 5 To the extent that the history of environmental policy is explored, most of the literature focuses upon recent history-the period since 1970, the dawn of the "envi- ronmental era." American environmental policy, however, has much older roots,2 6 and so does the Clean Water Act. The purpose of this article, therefore, is to provide those who are concerned about the future of the Clean Water Act with a more thorough understanding of the way in which water pollution control devel- oped in this country over the last two centuries. By placing the Clean Water Act in broad historical context, I hope to enrich the quality of the current debate. Many lessons may be gleaned from this history, and some of what we learn may help us decide whether to and, if so, how to reform current regulatory policy. I do not mean to suggest that history or its interpretation should dictate the way in which we design regulatory programs any more than I would advocate economic efficiency as some sort of litmus test. Historical analysis, however, can yield valuable insights.

Progress, in terms of legislation or expenditures on public in- frastructure, has often been driven by some sort of crisis or a series of events that thrusts an issue to the forefront of political attention. Such reactive decision-making can, at times, be short-sighted, geared to the political necessity of addressing a single, highly charged issue. Thus, it is not surprising that reform efforts occa- sionally cause serious new problems. For example, during the nine- teenth century, many American cities constructed massive municipal water supply systems to provide their residents with clean, potable water. 2 7 These cities, however, generally did not spend the additional sums necessary to build sewerage systems to

23. See IAN AYREs & JOHN BRAITHWAITE, RESPONSIVE REGULATION: TRANSCENDING THE DEREGULATION DEBATE (1992); Mark Seidenfeld, A Civic Republican Justification for the Bu- reaucratic State, 105 HARv. L. REv. 1512 (1992); Cass R. Sunstein, Beyond the Republican Revi- val, 97 YALE Lj. 1539 (1988).

24. See Thomas 0. McGarity, The Expanded Debate Over the Future of the Regulatory State, 63 U. CHI. L. REv. 1463, 1491-97 (1996).

25. See Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REv. 873 (1987); Richard B. Stewart, Environmental Quality as a National Good in a Federal State, 1997 U. CHI. LEGAL F. 199, 202-03 (1997).

26. See RICHARD N.L. ANDREWS, MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY ix (1999).

27. See Stuart Galishoff, Triumph and Failure, The American Response to the Urban Water Supply Problem, 1860-1923, in POLLUTION AND REFORM IN AMERICAN CITIES, 1870-1930, at 35- 36, 40 (Martin V. Melosi ed., 1980).

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carry away the resulting wastewater. 2 8 A new health problem was thus created as massive amounts of sewage were deposited in the streets and backyards of the Victorian American city. 2 9 Eventually, this particular problem was solved in the late nineteenth and early twentieth centuries through the construction of massive sewer sys- tems,3 0 but since the wastewater was generally not treated, the health problems associated with polluted municipal wastewater were being exported to downstream communities." Although Americans eventually secured safe drinking water through the use of purification technology, that advance came at the continuing expense of the rivers and lakes into which American cities poured an ever-increasing amount of untreated waste. 2

Omissions of this sort may be due, at least in part, to insuffi- cient relevant information or a failure to adequately analyze or credit the information that is available. Although some reformers had warned of the potential health hazards that could result from the construction of sewer systems without accompanying treatment facilities, other experts dismissed their concerns as naive. 33 Such problems may also arise from the desire to solve problems in the most cost-effective and politically expedient manner. Sanitary engi- neers in the late nineteenth century, for instance, generally urged large cities to build combined sewer systems-systems that both collect storm water runoff as well as wastewater-because they were cheaper than building two separate systems and appeared to pre- sent no real health risks.3 4 Later, when confronted with the intoler- able downstream health problems created by untreated discharges, these sanitary engineers faced a dilemma of their own creation. Because of the additional burden of dealing with storm water run- off, the combined sewers endorsed by the engineers had made sew- age treatment a much more expensive option than if the cities had

28. See ANDREWS, supra note 26, at 116. 29. SeeJOEL A. TARR, THE SEARCH FOR THE ULTIMATE SINK: URBAN POLLUTION IN His-

TORICAL PERSPECTIVE 10 (1966) [hereinafter TARR, URBAN POLLUTION]. 30. SeeJOHN DUFFY, THE SANITARLANs: A HISTORY OF AMERICAN PUBLIc HEALTH 48, 79-

91 (1990). 31. SeeJoel A. Tarr & Francis Clay McMichael, Decisions about Wastewater Technology:

1850-1932, 103J. WATER RESOURCES PLAN. & MGMT. DIv., AM. SOC. Civ. ENGINEERS 55-58 (May 1977).

32. See Galishoff, supra note 27, at 53. 33. See TARR, URBAN POLLUTION, supra note 29, at 12. 34. See Tarr & McMichael, supra note 31, at 52-54. While these engineers knew that

rivers loaded with sewage could present health hazards, they did not know how much waste would pose a risk nor how far downstream the risk would extend. See id. at 54.

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built separate sanitary sewers. Although many physicians advocated sewage treatment as well as water treatment to solve the problem, sanitary engineers successfully argued that drinking water treat- ment alone was a more cost-effective and equitable solution.3 5 Per- haps it was only a coincidence that their advice favored the short- term economic interest of their municipal clients.

Once a short-term remedy solves or appears to solve an immedi- ate crisis, those who view the problem more broadly have found it difficult to generate public support in favor of further reform. It is true that subsequent developments vindicated the physicians who maintained in 1910 that municipal sewage should be treated. At the time, however, their cause was lost once the threat of typhoid fever receded, as it did between 1910 and 1923, due to the nearly universal adoption of drinking water purification technology. 3 6 In the absence of a current salient issue, the forces favoring the status quo are often unassailable. 3 7 It is little wonder, then, that the forces of reform in later years attempted to institutionalize their success in enacting the Clean Water Act by drafting the statute in a way that would help ensure that progress would be maintained despite the absence of headline-grabbing catastrophes. 3 8

Many aspects of public opinion are cyclical in nature, includ- ing, it seems, the view of Americans on experts and the value of expertise. Early in the history of the Republic, Americans, remain- ing loyal to their English tradition, tended to place government in

35. See id. at 53-58. The medical profession believed at the time that the interest of public health would be best served if no city were allowed to discharge raw sewage. See id. at 57.

36. See Galishoff, supra note 27, at 51 (detailing the drop-off in typhoid death rates between the 1880s and 1923).

37. The physicians might have staked out stronger ground had they couched their argument more in terms of civic pride and general environmental degradation than solely on the basis of public health. The physicians also decided-probably because their focus was on the spread of infectious bacteria through drinking water-to virtually ignore the impact of industrial pollution. See TARR, URBAN POLLUTION, supra note 29, at 357-58.

During the 1920s, a more conservative group of public health officials joined with the sanitary engineers in advocating a gradual, "realistic, and cost-effective approach to state water quality policy that emphasized the reasonable use of streams for waste assimilation" while protecting drinking water with filtration and chlorine. Joel A. Tarr, James McCurley & Terry F. Yosie, The Development and Impact of Urban Wastewater Technology: Changing Con- cepts of Water Quality Control, 1850-1930, in POLLUTION AND REFORM IN AMERICAN CITIFS, 1870-1930, 73-74 (Martin V. Melosi ed., 1980).

38. See Robert A. Kagen, Tiying to Have It Both Ways: Local Discretion, Central Control, and Adversarial Legalism in American Environmental Regulation, 25 ECOLOGY L.Q. 718, 725 (1999) (discussing the desire of environmental organizations to "'lock in' hard-won policy victories" through the use of specific statutory language).

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the hands of individuals of some learning and intelligence. The Jacksonian era rejected that tradition and replaced it with the phi- losophy that any good person could handle anyjob, including any government position. In the face of growing immigration in the 1840s and 1850s, many middle class Americans, concerned about corrupt urban political machines and the intelligence of the aver- age voter, sought to place more government functions in the hands of apolitical professionals. 3 9 Expertise and professionalism were the watchwords of the new Progressive Movement-unbiased sci- ence and reason would lead America in the right direction.

The experts, however, often disagreed. Doctors and sanitary en- gineers-the "idealists" versus the "pragmatists"-differed mark- edly in their views about the value of sewage treatment early in the twentieth century. The sanitary engineers won that battle and even- tually came to dominate the state agencies charged with water pol- lution control.4 0 By the 1960s, however, faith in the value of expertise and the wisdom of experts began to wane as the public became aware of the environmental devastation wrought not only by water and air pollution, but also by the wholesale usage of pesti- cides such as DDT and the ecological disruptions caused by the exploitation of our natural resources.4 '

The sanitary engineers and the state water pollution control agencies they controlled fell out of favor for other reasons as well. For years, sanitary engineers had functioned in a relatively narrow policy community that consisted primarily of officials and engi- neers representing industrial and municipal interests. In such a closed community, and one in which many members viewed gov- ernment regulation with alarm and suspicion, the state sanitary en- gineers had gained respect and some legitimacy by appearing to be reasonable and pragmatic.4 2 This was not new to them. Early on they had trumpeted their practical experience and superior appre- ciation for economic realities in their struggle with public health doctors whom they denigrated as "sentimentalists" for rejecting the

39. See DuFFY, supra note 30, at 129-30. The Pendleton Act of 1883, which created a federal civil service based upon merit, was a product of this effort. See id. at 130.

40. SeeTERRENCE KEHOE, CLEANING UP THE GREAT LAKES: FROM COOPERATION TO CON- FRONTATION 6, 22 (1997).

41. See, e.g., LYNTON K CALDWELL, SCIENCE AND THE NATIONAL ENVIRONMENTAL POLICY ACT: REDIRECTING PoLIcY THROUGH PROCEDURAL REFORM (1982) (discussing the growth of the public perception that modern scientific and technological developments often had, in addition to obvious benefits, many detrimental side-effects).

42. See KEHOE, supra note 40, at 6, 22.

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concept of treatment by dilution.4 3 And they continued for the next fifty years to view water pollution as a relative concept-deal- ing with discharges on a case-by-case basis, trying to balance the ability of a stream to assimilate waste with its current use, economic considerations, and other factors. 4 4 Their overall approach to regu- lation has been termed "cooperative pragmatism," a system "based on the principles of voluntarism and informal cooperation, admin- istrative expertise, and localism." 4 5 They did their best to avoid le- gal confrontations.

Voluntary solutions were attractive to state agencies for a num- ber of reasons. The agencies were generally understaffed and un- derfunded, and often lacked adequate enforcement authority.4 6

There were also compelling political reasons to avoid confronta- tions with large local polluters, because those industries usually wielded a great deal of clout in the state capital.4 7 When confronta- tions did occur, industrial interests were not reluctant to remind the governor that a particular company was the largest employer in an area or to warn the governor that a tough pollution program might drive businesses out of the state.4 8 Whether or not industry would have actually left a state in pursuit of more a lenient regula- tory climate 4 9 is not altogether relevant in this context. Industry was making what appeared to be a plausible threat, and politicians, especially state politicians who have relatively little "bacon" to de- liver other than jobs and economic development, were apt to lis- ten. 5 0 So a cooperative, voluntary approach was perhaps the only

43. See Tarr, McCurley & Yosie, supra note 37, at 73. 44. See KEHOE, supra note 40, at 7. 45. Id. at 5. 46. See ELIZABETH H. HASKELL & VICroRIA S. PRICE, STATE ENVIRONMENTAL MANAGE-

MENT: CASE STUDIES OF NINE STATES 243 (1973). 47. See HARVEY LIEBER, FEDERALISM AND CLEAN WATER 14 (1975); ANDREWS, supra note

26, at 232-33. 48. See KEHOE, supra note 40, at 37-39 (describing the political pressure and economic

threats made when the Michigan Water Resources Commission tried to impose a cleanup

schedule on the paper mills located along the Kalamazoo River in the early 1960s).

49. In most cases, the costs of environmental regulation alone are too small to signifi-

candy influence an industrial location or relocation decision. SeeAdam B. Jaffe et al., Envi-

ronmental Regulation and the Competitiveness of U.S. Manufacturing: What Does the Evidence Tell Us , 33J. ECON. LIT. 132 (1995); Arik Levenson, Environmental Regulations and Manufactur- ers' Location Choices: Evidence from the Census of Manufacturers, 62 J. PUB. ECON. 5 (1996); Richard B. Stewart, Environmental Quality as a National Good in a Federal State, 1997 U. CHI. LEGAL F. 199, 207 (1997).

50. See TIMOTHY DOYLE & ANSLEY KELLow, ENVIRONMENTAL POLITICS AND POLICY-MAK- ING IN AusTRALIA 129 (1995) (contending that such economic development issues have

real salience in state capitals because state politicians lack access to most of the

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practical course of action available to many of these agencies. Fur- thermore, their limited range of action was not considered a weak- ness by many agency professionals, but a virtue. In fact, it coincided nicely with their self-image as neutral, objective experts who were dedicated to cleaning up the state's waters through consensus.5 1

These agencies may not have been actually "captured" by cor- porate interests. Many state agencies, in fact, had made progress in abating water pollution.5 2 Nevertheless, their organizational cul- ture was markedly inconsistent with the nation's mood by the 1960s. Along with industry, they labeled the views of the growing environmental movement as simplistic and "emotional." 5 3 When criticized, they reacted defensively. 5 4 They failed to see that the public was growing weary with excuses and endless chatter; and that it wanted action. The magnitude of water pollution was be- coming intolerable, and state agencies, at best, appeared too com- fortable, too arrogant, too mired in the approach of a previous era. At worst, they seemed to be in much too cozy a relationship with the regulated community.5 5

When the state agencies failed to respond quickly enough, clean water activists and conservationists turned to the federal gov- ernment,5 6 which appeared ready and willing to help. Its water pol- lution program had grown steadily during the 1960s,5 7 and its

macroeconomic instruments that federal politicians can use to deliver material benefits to their constituents); see also Kagen, supra note 38, at 728, 731 (explaining how the lack of revenue can cause a government to favor economic interests in a disproportionate fashion or to even fail to adequately staff a pollution control agency).

51. See KEHOE, supra note 40, at 30-32 (discussing how their limited success in abating pollution coincided with their whole approach to pollution control).

52. See id. at 8, 44-45 (recounting how in the years following the Second World War state agencies in the Great Lakes area had imposed some waste treatment limitations on the largest cities and industries in the region).

53. Id at 9, 66. State officials were certainly not pleased by the entry of new players- such as "the conservationist, the recreationist"-into what had been a small policy commu- nity. See, e.g., id. at 82 (quoting the head of the Illinois water pollution program in 1967). This reaction is consistent withJoseph Sax's observation that the Progressive and New Deal models of delegating policymaking to the expertise of mission-oriented agencies had failed because the experts had so supplanted the public that "[t]he public itself is thought to possess no expertise about the public." JOSEPH L. SAx, DEFENDING THE ENVIRONMENT: A STRATEGY FOR CITIZEN ACnON 60-61 (1972).

54. See KEHOE, supra note 40, at 55-56, 61, 64-65, 70. 55. See HAsKELL & PRICE, supra note 46, at 244-45; LIEBER, supra note 47, at 14. 56. See KEHOE, supra note 40. at 44, 47, 54, 56-57. Support for strong federal action

was really not new. Theodore Roosevelt, for example, had called for national legislation, as well as state legislation, to end water pollution in 1910. See TARR, URBAN POLLUTION, supra note 29, at 166.

57. See KEHOE, supra note 40, at 44, 46.

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leadership had spoken firmly about the need for strong action and vigorous enforcement. 5 8 Expectations were changing, and the state agencies were simply overwhelmed by the changing times and cir- cumstances. The growing blight of water pollution had, in short, offended the conscience of the nation, 5 9 and such a national prob- lem6 0 demanded a national solution.6 '

Calls for federal action were not new. They date back as far as the 1870s, to calls for the creation of a national board of health to help deal with various sanitation problems including sewage dispo- sal.62 The first attempt to enact a strong, comprehensive federal water pollution control program came not in the 1970s or 1960s, but in the midst of the New Deal.6 ' That effort failed, and all Con- gress managed to accomplish before 1972 was to pass a series of largely ineffectual measures. Confronted in the early 1970s with se- verely degraded water quality and a failed federal response, Con- gress opted for an entirely new approach-one, however, that reflected many of the so-called lessons of history.

58. See id. at 9-10, 4348, 178-80. Interest in "quality of life" issues such as health care, education, and conservation was rapidly growing on Capitol Hill and in the White House during the 1960s and early 1970s. See id. at 46-48. Calls for increased federal involvement in water pollution control, therefore, fell on many receptive ears.

59. See KIRKPATRICK SALE, THE GREEN REVOLUTION: THE AMERICAN ENVIRONMENTAL MOVEMENT, 1962-1992, at 18-19 (1993).

60. See Stewart, supra note 49, at 210 (commenting on the wayAmericans regard envi- ronmental protection "as an important national good that transcends individual or local interest"); see also, e.g., 111 CONG. REc. 1519 (1965) (remarks of Sen. Muskie) (noting that water pollution "is not only a State and local problem, but a national problem"); Id. at 1544 (remarks of Sen. Dodd) (stating "we now recognize water pollution as a serious national problem"); Id. at 8653 (remarks of Rep. Madden) (noting that water pollution "involves the health and welfare of every citizen in the United States"); Id. at 8670 (remarks of Rep. Ottinger) (referring to the "fight to end pollution of the Nation's waterways"); Id. at 8671 (remarks of Rep. Wright) (remarking that "thousands of local crises are merging rapidly into one national crisis); Id. at 8674 (remarks of Rep. Wolff) (referring to "our aroused concern for protecting and improving the quality of the Nation's precious water re- sources"); Id. at 8675 (remarks of Rep. .Monagan) (stating that "water pollution is a prob- lem which affects every community and every State in the Nation").

61. The rise of federal dominance in this area certainly benefited environmental groups in a number of ways. Normally plagued by limited resources-an infirmity not shared by industrial interests-environmental organizations have found the federal gov- ernment a much more efficient target for lobbying and litigation purposes than dealing with fifty state governments. See Daniel C. Espy, Revitalizing Environmental Federalism, 95 MICH. L. REv. 570, 650-51 (1996); Kagen, supra note 38, at 723. A more decentralized regulatory system-in which the federal government now also played a significant role- also benefited environmental interests by creating more accountability and more access points for advocacy. See KEHOE, supra note 40, at 111; Kagen, supra note 38, at 728.

62. See DusFY, supra note 30, at 162-68. 63. See, e.g., S. 3958, 74th Cong., 2d. Sess. (1936).

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Frustrated by years of trying but failing to establish an effective regulatory program based on a complex and largely decentralized system of ambient water quality standards, Congress created a pro- gram requiring polluters to comply with uniform technology-based limitations. This program mandates the same level of treatment for every discharger in a particular industrial category regardless of what state a discharge is located in, a state's use classification for a particular stream, the volume of water in the stream, or the pres- ence or absence of other polluters discharging the same or similar substances. 6 4 This change in strategy was crucial if water pollution was actually going to be tackled effectively within a reasonably prompt period of time since the implementation of water quality standards was fraught with so many technical and policy problems. This realization was not entirely original. The Pennsylvania pro- gram, in fact, had used the same efficiency argument to justify the adoption of a more rudimentary system of uniform effluent limita- tions in the mid-1940s.6 6 Congress, however, was beginning to cobble together a number of lessons from the past in an effort to chart a more comprehensive and realistic approach to pollution control.

Another major weakness in the past lay in the area of enforce- ment. Federal and state efforts to exact compliance with water pol- lution control objectives had languished for years. 6 6 To facilitate enforcement and implement the new system of effluent limita- tions, as well as any more stringent conditions necessary to meet water quality standards, Congress established a permit system through which precise requirements would be set for individual dischargers. The permit defines compliance for the discharger and thus eases the task of government enforcement because enforce- ment would no longer be limited to the relatively few instances where the government could demonstrate that a particular pol- luter was responsible for a particular violation of water quality stan- dards.6 7 Again, Congress did not invent the mechanism. Many states had already developed permit schemes, although they were

64. See William L. Andreen, Beyond Words of Exhortation: The Congressional Prescription for Vigorous Federal Enforcement of the Clean Water Act, 55 GEO. WASH. L. REv. 202, 216 (1987) [hereinafter Andreen, Clean Water Act Enforcement].

65. See F.B. Milligan, Discussion of Industrial Wastes, 20 SEWAGE WoRKS J. 278, 279-80 (1948).

66. See NATIONAL COMMISSION ON WATER QUALIY, STAFF REPORT V-29 (April 1976); Andreen, Clean Water Act Enforcement, supra note 64, at 203, 214 n.78.

67. See Andreen, Clean Water Act Enforcement, supra note 64, at 216-17.

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generally limited to new discharges, 6 8 and the federal government in the early 1970s was trying to develop an industrial permit pro- gram for the 1899 Refuse Act. 69 What was unique about the Clean Water Act was not the concept, but its extension to all point source discharges, be they existing, new, municipal, or industrial.

Congress also thought there had been too much talk about pol- lution control and not enough action. The Act, therefore, is re- plete with detailed instructions, mandatory duties, and deadlines designed to spur the bureaucracy into taking strong action.7

0 The concern that agencies had been too lethargic at times, too cozy with the regulated community and too stubbornly committed to pragmatic cooperation was again not new, but Congress took pains to try to create a scheme that would help ensure that the EPA would act and continue to act vigorously and effectively. 7 '

The authors of the Clean Water Act had thus built upon the experience of decades of state, local, and federal efforts to control water pollution. Those earlier efforts were too often flawed because the problems were too narrowly defined and, as a consequence, the solutions too narrowly structured. Progress in the fight against water pollution, therefore, came in a series of fits and starts as the United States muddled through, using a process of trial and error and trying not to drastically increase expenditures or antagonize powerful interests. The authors of the Clean Water Act were fortu- nately able to take a broader view, crafting a more comprehensive and longer-range approach because .they were building upon past achievements and learning from past failures. The breadth of their perspective contributed in no small measure to the strength and enduring quality of the regulatory approach found in the Act. As the nation considers how to amend the Act in the future, it would be wise to consult the history that helped shape the Act.

The purpose of this Article, however, is not to discuss the future direction of the Clean Water Act, but to set forth a detailed ac- count of how water pollution control evolved in the United States. This account will be found in both these pages and in a subsequent installment that will appear in the June 2003 issue of the Stanford Environmental Law Journal. The first segment of the article begins

68. See N. William Hines, NorAny Drop to Drink: Public Regulation of Water Quality Part I: State Pollution Control Programs, 52 IowA L. REV. 186, 227 (1966) [hereinafter Hines, Part 11.

69. See William H. Rodgers, Jr., Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U. PA. L. REv. 761, 769 (1971).

70. See Andreen, Envtl. Prot. in the U.S., supra note 4, at 98-100. 71. See supra notes 42-55 and accompanying text.

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with an exploration of the way in which water pollution evolved from a relatively simple and exclusively local issue in the early years of the Republic into a complex state and regional problem by 1920. It then examines the development of state regulation from 1869 to 19 7 2-an account that covers, among other things, the evolution of state agencies, innovations such as water quality stan- dards and uniform effluent limitations, as well as the shortcomings of state regulatory efforts. The second installment will continue by turning to the long and surprisingly fascinating story of federal ac- tion between 1879 and 1972, including the serious, but largely for- gotten, attempts during the New Deal to create a strong federal regulatory program based on a watershed management approach. Part II will conclude with an extensive look at the legislative history of the 1972 Clean Water Act.

I intend to complete this history of water pollution regulation in two future articles, the first of which will discuss the implementa- tion of the Clean Water Act after 1972 and the second of which will evaluate the success of the regulatory scheme created by the Clean Water Act.

II. A CRISIS IN THE MAKING: WATER POLLUTION IN AMERICA FROM COLONIAL TIMES TO 1920

The temptation to cast into the moving water every forn of portable refuse and filth, to be borne out of sight, is too great to be resisted.72

Water pollution is not a uniquely urban problem. 7 5 Humans can be sickened anywhere by drinking contaminated water, and such illnesses have occurred in both rural and urban areas for thousands of years. In the American colonies, however, the abun- dance of land and water and the relatively small size of cities7 4 miti-

72. William Ripley Nichols & George Derby, Sewerage: The Pollution of Streams: The Water-Supply of Towns, in FOURTH ANNUAL REPORT OF THE MASSACHUSETrS STATE BoARD OF HEALTH 40 (1873).

73. See THEbDORE STEINBERG, NATURE INCORPORATED: INDUSTRIALIZATION AND THE WA- TERS OF NEW ENGLAND 222 (1991) (recounting how "water supplies could become contami- nated even in relatively unpopulated regions") [hereinafter STEINBERG, NATURE INCORPORATED]; DuFFY, supra note 30, at 64 (stating that dysentery, typhoid, and other enteric illness were prevalent in all areas of the United States, especially in the summer months, during the early 1800s).

74. The first federal census, taken in 1790, showed that only two cities in the United States had a population over 25,000. See MARTIN V. MELOSI, GARBAGE IN THE CITIES: REFUSE, REFORM, AND THE ENVIRONIMENT 1880-1980, at 13 (1981).

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gated severe sanitation problems.75 Nevertheless, colonial cities did encounter problems. Human waste was typically discharged into backyard privies that sometimes overflowed into drainage ditches that came to resemble open sewers. 76 Although the privies were cleaned out on occasion, the scavengers who did this work often dumped the waste into empty lots or the nearest waterway. 77 Hogs and other domestic animals roamed the streets, eating garbage and depositing additional waste. 78. Tanneries, slaughterhouses, cloth- dyeing establishments, and small factories added to this noxious waste load. By 1730, the shallow drinking water wells in Manhattan had become so filthy that the water was "scarcely fit to drink." 79

Those who could afford to purchased spring water from water car- riers. In fact, by 1761, this practice was so prevalent that the city government began licensing carriers.8 0 The standard practice in colonial cities like New York was to obtain drinking water from nearby sources such as wells, springs, ponds or local streams.

8" However, this primitive approach to water supply and waste dispo- sal began to break down as American cities grew and population densities increased in the late 1700s. 2

A. Epidemics and the Development of Municipal Water Systems

In the years immediately following the American Revolution, a number of cities experienced rapid population growth. New York City's population climbed from 24,000 in 1786 to over 33,000 in 1790. Boston grew sixty percent between the end of the Revolution and 1800, and Philadelphia became the nation's largest city by

75. See id. 76. SeeANDREWS, supra note 26, at 110;J.N. HAYs, THE BURDENS OF DISEASE: EPIDEMICS

AND HuMAN RESPONSE IN WESTERN HISTORY 14243 (1998). The drains in New York emptied into the slips in the harbor. In summertime, when the tide was out, the stench was appal- ling. See DuFF, supra note 30, at 29.

77. See Tarr & McMichael, supra note 31, at 49. 78. See Hendrik Hartog, Pigs and Positivism, 1985 WIs. L. REV. 899, 901 (1985). 79. CARL BRIDENBAUGH, CITIES IN THE WILDERNESS: THE FIRST CENTURY OF URBAN LIFE

IN AMERICA 1625-1742, at 374 (1968). See also DuFFY, supra note 30, at 30 (reporting "that even the horses were reluctant to drink it").

80. See Dum, supra note 30, at 30. 81. See MARTIN V. MELOSI, THE SANITARY CITY URBAN INFRASTRUCTURE IN AMERICA

FROM COLONIAL TIMES TO THE PRESENT 29 (2000) [hereinafter MELOSI, SANrTARY CITy]. 82. See HENDRIK HARTOG, PUBLIC PROPERTY AND PRIVATE POWER: THE CORPORATION OF

THE CITY OF NEwYORK IN AMERICAN LAW, 1730-1870, at 148 (1983) (recounting how, by the end of the Revolution, Fresh Water Pond-once New York's primary source of drinking water-had become fouled with human and animal excrement).

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1800 with a population of 80,000.83 Despite this growth, cities did little to ensure cleaner, more plentiful water supplies until a series of yellow fever epidemics struck the United States during the 17 90s.8 4 The association of yellow fever with filth and contaminated water convinced a number of cities to act.8 5 In 1795, the City of Boston chartered a private company to build an aqueduct from Ja- maica Pond to the city, and by 1798, the residents of Boston had a centralized clean water supply.8 6 In 1802, Philadelphia began oper- ating the first municipally-owned waterworks that pumped potable water from the Schuylkill River throughout the city using a system of wooden pipes.8 7 As the threat of yellow fever receded at the be- ginning of the nineteenth century, however, so too did the interest of most municipal authorities in constructing expensive water systems. 8 8

During the first third of the nineteenth century, American cit- ies continued to mushroom in size and density. This growth accel- erated with the advent of the Industrial Revolution and a large influx of immigration in the 1840s and 1850s. Unfortunately, as Lewis Mumford wrote, "industrialism, the main creative force of the nineteenth century, produced the most degraded urban envi-

83. See DuriY, supra note 30, at 37. 84. Yellow fever is a viral disease that in a milder form resembles the flu, with symp-

toms such as headache and chills. A more virulent form begins with a high fever, muscle ache, bleeding from the nose, gums, and tongue, vomiting, and hemorrhaging in the uterus and urethra. Death often follows due to liver failure. See HAYS, supra note 76, at 130; MARGARET HUMPHREYS, YELLOw FEVER AND THE SouTH 5-6 (1992). For an excellent account of the awful impact which yellow fever had on one American city at this time, see J.H. POWELL, BRING OUT YOUR DEAD: THE GREAT PLAGUE OF YELLOW FEVER IN PHILADELPHIA IN 1793 (1949).

85. See DuFF, supra note 30, at 38-48. Yellow fever seemed to confirm the miasmic theory of disease. It arrived in mid-summer just as the long sultry days were producing horrible odors from sewage and rotting garbage. Cleanliness, including access to pure water, had become essential to public health. See id. at 48. While we now know that yellow fever is actually spread by mosquitoes-no doubt breeding in foul, stagnant pools of water-the relationship between dysentery and other gastrointestinal ailments and dirty drinking water was obvious. See id. at 81.

86. See id, at 47. 87. See id,; TAuRR, URBAN POLLUTION, supra note 29, at 9. Wooden pipes did not prove

durable, and they also tended to leak around the joints. Philadelphia, therefore, began instaling cast-iron pipe imported from England in 1818. See DUFFY, supra note 30, at 75. The first suggestion that Philadelphia seek a clean source of water had come from Benja- min Franklin in 1789 following a yellow fever epidemic. See MELOSI, SANITARY CITy, supra note 81, at 31.

88. See DuFpY, supra note 30, at 50, 53. Pittsburgh, however, built a municipal water system in the 1820s providing its citizens with the "pure sweet water of the Allegheny." See id. at 76, 90.

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ronment the world had yet seen; for even the quarters of the ruling class were befouled and overcrowded." 8 9 Thousands each year, es- pecially in the growing slums, developed gastrointestinal afflictions due to unsanitary conditions and contaminated drinking water. The public, however, remained largely apathetic until 1832, when Asiatic cholera invaded the United States, and spread rapidly across the continent. 9 0 Unlike more common enteric diseases, cholera produced severe panic and dread. Its onset was sudden, marked by spasmodic vomiting and uncontrollable excretions. Be- cause no effective treatment existed at the time, victims could die quickly-often within hours.9 ' By 1834, thousands had died from this disease. Although the poor were the hardest hit, all social clas- ses suffered because the disease was most often spread by the con- sumption of drinking water that had been contaminated by the excreta of cholera victims.9 2

The cholera epidemic of the early 1830s reinvigorated urban demands for cleaner water supplies. New York opened the Croton Aqueduct in 1842,93 and Boston developed an upland water source that began supplying the city in 1848.9 Cholera returned to the United States in 1849 to 1854 and again in 1866, prompting the construction of additional municipal water systems and the expan- sion of existing ones. By 1860, 136 public water systems had been constructed; by 1896, the number had risen dramatically to 3,196.95

89. LEwis MuMFoRD, THE CITY IN HISToRY. ITS ORIGINS, ITS TRANSFORMATION, AND ITS

PROSPECTS 447 (1961). Appalling conditions were even found in smaller cities. An 1834 Albany, New York court described the confluence of the Hudson River and the Erie Canal as "foul, filled and choked up with mud, rubbish, and dead carcasses of animals," and thus "offensive and nauseous, corrupting the water, and causing noisome and unwholesome smells." People v. Corporation of Albany, 11 Wend. 539, 539-40 (N.Y. Sup. Ct. 1834).

90. See GEORGE ROSEN, A HIsTORY OF PUBLIC HEALTH 253 (Johns Hopkins University

Press 1993) (1958). 91. See CHARLES E. ROSENBERG, THE CHOLERA YEARs: THE UNITED STATES IN 1832,

1849, AND 1866, at 2-3 (1962); see also HAYs, supra note 76, at 136 (stating that "the drastic

loss of body fluids collapsed the tissues; coagulated blood ceased to flow, the skin turned alarmingly blue, and the heart (or the kidneys) failed, often within a few hours").

92. See DuFsx', supra note 30, at 79-83. 93. See HARTOG, supra note 82, at 224-25; TED STEINBERG, DOWN TO EARTH: NATURE's

ROLE IN AMERICAN HISTORY 166 (2002) [hereinafter STEINBERG, DOWN TO EARTH].

94. See DuFFY, supra note 30, at 89. These actions reflect a gradual but steady shift in American attitudes about the cause of cholera. The prevailing belief in 1832, and a belief which continued in some quarters for many years to come, was that cholera represented a kind of Biblical punishment for the "intemperate, the imprudent, [and] the filthy." ROSEN- BERG, supra note 91, at 40. People who subscribed to this view differed, however, as to whether this punishment flowed directdy from the hand of God or was the inescapable result of failing to follow the laws of nature. See id. at 4047.

95. See Galishoff, supra note 27, at 35.

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This huge investment in public infrastructure was not moti- vated solely by fears of pestilence, nor by the advocacy of the new American sanitation movement.9 6 For not only were local ponds and wells contaminated, they were also inadequate to meet the growing domestic, industrial, and firefighting needs of the nine- teenth century American city.9 7

B. The Development of Moden Sewerage Systems

The introduction of piped-in water was a major technological advance. The availability of water running freely and continuously at the tap encouraged increased consumption and the installation of modern bathroom conveniences such as the flush toilet. By 1880, approximately one-third of all urban households had flush toilets.9 8 Per capita water use exploded between the 1850s and 1 8 80s-increasing, for example, from 33 to 144 gallons a day in Chicago and from 55 to 149 gallons a day in Detroit.9 9

"Logically, sewer systems should have preceded water systems, but such was not the case." 0' 0 In the absence of modern sewage systems, huge quantities of water were used and discarded into

96. The disease and filth that afflicted congested urban areas at this time gave rise to a sanitation reform movement in Great Britain during the 1830s. In 1842, one of its lead- ers, Edwin Chadwick, published his "Report on the Sanitary Condition of the Labouring Population of Great Britain." The report established a correlation between disease and filthy environmental conditions including foul water and the lack of adequate drainage. See ROSEN, supra note 90, at 214-15; ROSENBERG, supra note 91, at 143; HAYs, supra note 76, at 144-47. Chadwick believed that cities should build comprehensive water and sewer systems. Such systems would provide each house with piped-in water, street drainage, and would connect each house with a sanitary sewer system to convey this domestic sewage to the edge of the city where it would be turned into fertilizer. See HAYS, supra note 76, at 145.

Inspired by Chadwick's work, a growing number of sanitary reformers in the United States began to conduct similar studies and to push for water and sewer systems, garbage collection, street cleaning, and the creation of city and later state health departments. See ROsEN, supra note 90, at 233-48; ROSENBERG, supra note 91, at 145-46.

97. The population of New York, for example, had risen from 75,770 in 1805 to 515,000 in 1850. See id. at 237. It also experienced a major fire in 1829 that was made worse because of a shortage of water. See Dum, supra note 30, at 90. Overall, the urban popula- tion of the United States climbed fromjust over 300,000 in 1800 to over 6 million in 1860. See Martin V. Melosi, Environmental Crisis in the City: The Relationship Between Industrialization and Urban Pollution, in POLLUTION AND REFORM IN AMERICAN CITIES, 1870-1930, at 9 (Martin

V. Melosi ed., 1980) (defining Americans living in areas with a population of 2,500 or more as "urban") [hereinafter Melosi, Environmental Crisis].

Business people often led the struggle for improved water supply systems. Industry needed more water, and a more reliable water system would serve to lower the premiums for fire insurance. See Galishoff, supra note 27, at 51.

98. See Tarr & McMichael, supra note 31, at 50. 99. See ANDREWS, supra note 26, at 116. 100. Dursv, supra note 30, at 77.

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cesspools, privy vaults, and street gutters.10 ' Although the addition of running water improved the quality of life for the middle class, it actually aggravated sanitary problems for those who were exposed to overflowing cesspools and the like.'0 2 "Copious water supplies" had paradoxically become "a means of distributing fecal pollution over immense areas."' 0 3

The health and sanitary threats presented by this disposal prob- lem, combined with the high cost middle class homeowners faced in having their cesspools pumped with increased regularity, prompted cities to start building sewerage systems.'

0 4 Before the Civil War, both Chicago and Brooklyn built sewerage systems, modeled on London's system.'0 5 After the war, public pressure in- tensified all around the country, as public health advocates lobbied strenuously for construction of these expensive systems and at- tempted to quantify resulting health benefits.' 0 6 They were joined in this effort by a growing number of civic groups and urban re- formers like Jane Addams, who were concerned about the adverse impacts of poor sanitation, crowded slums, and dirty streets."' Eventually, various business and industrial interests realized that sewer systems would help attract new business, increase property values and alleviate the need for quarantines, which often dis-

101. See STEINBERG, NATURE INCORPORATED, supra note 73, at 224-25. It was generally illegal to dispose of human waste in city storm drains (where available), although this occa- sionally occurred. See Tarr & McMichael, supra note 31, at 50.

102. See ANDREWS, supra note 26, at 116. All too often, most of the water flowed to- ward affluent neighborhoods and the central business district. The poor and working class neighborhoods still had to rely in many instances on contaminated wells and other pol- luted water sources. See MELOSI, SANITARY Crm, supra note 81, at 88.

103. See Tarr & McMichael, supra note 31, at 50 (quoting Benjamin Lee, The Cart Before the Horse, in 20 PAPERS AND REPORTS OF THE AM. PUB. HEALTH AsSN. 20 (1894) (Benja- min Lee was the Secretary of the Pennsylvania Board of Health)).

104. See Tarr & McMichael, supra note 31, at 50-51. 105. See TARR, URBAN POLLUTION, supra note 29, at 12.

106. See Tarr, McCurley &Yosie, supra note 37, at 64-65.

107. See Martin V. Melosi, Environmental Reform in the Industrial Cities: The Civic Re- sponse to Pollution in the Progressive Era, in ENVIRONMENTAL HISTORY- CRITICAL ISSUES IN CoM- PARATIVE PERSPECTIVE 494 (Kendall E. Bailes ed., 1985); Harold L. Platt, JaneAddams and the Ward Boss Revisited: Class, Politics, and Public Health in Chicago, 1890-1930, 5 ENVrL. HIST. 194, 196, 202-08 (2000). Middle class civic reformers were additionally influenced by aes- thetic and moral concerns which reflected the Victorian notion that cleanliness was not only a virtue in and of itself but also an essential component of a civilized and moral city- the City Beautiful which had become the ideal sought by so many in the wake of the 1893 Chicago World's Fair. See Melosi, supra, at 507; David Stradling & Peter Thorshelm, The Smoke of Great Cities: British and American Efforts to Control Air Pollution, 1860-1914, 4 ENvTL. HIST. 6, 14 (1999).

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rupted normal trade patterns.' 0 8

By 1911, all major American cities had constructed sewer sys- tems.' 0 9 These systems collected huge amounts of wastewater and, in turn, carried it to nearby watercourses where, in most cases, it was discharged untreated.110 The burden,of human waste disposal had now been effectively transferred from land to water.

Some sanitarians recognized that these untreated discharges would produce serious stream pollutionl" and create health problems for downstream communities." 2 In 1869, the editors of Scienticfi American warned that the new sewage systems were chok- ing "our rivers with foul deposits.""'3 One potential solution was some form of treatment in which the waste material was either composted"14 or used directly to irrigate and fertilize certain agri- cultural crops."15 However, such treatment was only practical in cases where a sewer system was designed to handle only sanitary sewage, not storm water runoff, because the addition of a high vol- ume of storm water would simply overwhelm the capacity of the proposed treatment systems.'16

As a result, a number of cities and towns built separate sewer systems. Perhaps the most famous example was the system con- structed in Memphis, Tennessee following the yellow fever epidemics of 1873 and 1878."l Memphis accepted the recommen-

108. See Tarr, McCurley & Yosie, supra note 37, at 65-66. 109. See ANDREWS, supra note 26, at l16. 110. See id. 111. See Tarr & McMichael, supra note 31, at 54. As early as the 1850s, several new

sewer systems in Great Britain had produced serious stream pollution problems. See id. 112. See Tarr, McCurley & Yosie, supra note 37, at 70. 113. The Sewage Question, SCIENrIFIC AMERICAN 57 (July 24, 1869) (quoting an article

which had appeared in the Chemical News) [hereinafter The Sewage Question]. The Scientific American editorial urged that sewage be disposed of in such a way that "it can be utilized as fertilizing material, or in some manner that will not tend to impair the public health, or comfort." Id.

114. See Thze Sewage Question, supra note 113. 115. See Tarr & McMichael, supra note 31, at 52-53. 116. See id, at 54. 117. See DUFEY, supra note 30, at 144-46. A series of yellow fever epidemics recurred

periodically throughout the American South from the 1840s to 1905. In the great epidemic of 1872, 2000 died out of a total population of 40,000 in Memphis. When the disease returned in 1878, 5000 perished out of a population that had declined to 33,000. See HuM- PHREvs, supra note 84, at 1-5. The great American labor leader and progressive, Mother Jones, lost her husband and four small children during a yellow fever outbreak in Memphis in 1867. MkRY HARRIs JONES, THE AUTOBIOGRAPHY OF MOTHER JONES 12 (Pittston Strike commemorative ed., reprinted 1990). The highest casualties during these epidemics were among immigrant families, like Mother Jones' family, who tended to live together in

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EVOLUTION OF WATER POLLUTION CONTROL

dation of a newly created but short-lived federal agency-the Na- tional Board of Health-and built a separate sewer system designed by the famous sanitarian, Colonel George E. Waring. Waring's design would allow for the land treatment of sewage due to its lower flows; it also utilized small, tightly-fitting pipes to guard against sewer gas, thought at the time to be a major cause of infec- tious disease. 1̀ 8 By 1892, however, only twenty-two cities and towns in the United States had Waring systems."1 9

In contrast, most cities built sewer systems in which both sani- tary waste and storm water runoff were collected in one sewer and discharged without treatment. Combined sewers were popular be- cause they were cheaper-one system solved the problems of both sanitary waste removal and storm water drainage. Most sanitary en- gineers, therefore, recommended combined systems as the most cost-effective approach to disposal problems. Another factor that led to the adoption of combined systems was the belief that un- treated sewage would not pose an insuperable problem in receiv- ing streams because running water would eventually purify the discharged waste.'2 0 Although engineers understood that segments of many streams could be overloaded with waste material, they did not know how much waste was necessary to produce such a result, nor did they know how far downstream the untoward conse- quences would extend.' 2 ' Proceeding in the face of this uncer- tainty eventually proved costly.

By 1905, the nation's cities, had built approximately 19,000 miles of sewer line, nearly eighty-two percent of which were com- bined systems.122 Eighty-eight percent of the total collected waste- water-from combined as well as some separate systems-was poured into streams and lakes as raw sewage.' 2 3 This wave of con- struction represented an effort to meet the sanitary needs of an urban population that was growing explosively. Between 1880 and

swampy, low-lying areas that became virtual cesspools during the rainy season. See ELLIOTT

J. GoRN, MOTHER JONES: THE MOST DANGEROUS WOMAN IN AMERICA 38-39 (2001). 118. See MELOSI, SANITARY CITY, supra note 81, at 155. 119. See Tarr & McMichael, supra note 31, at 52-53. 120. See STEINBERG, NATuRE INCORPORATED, supra note 73, at 224,226; Tarr, McCurley

& Yosie, supra note 37, at 68-69. 121. See Tarr & McMichael, supra note 31, at 54. 122. ln 1905, there were 15,189.4 miles of combined sewers and 3,423.4 miles of sani-

tary sewers in the United States, for a grand total of 18,612.8 miles. See TARR, URBAN PoLLU-

TION, supra note 29, at 188. I have not included 846.9 miles of storm sewers in these calculations since they were not constructed to transport sanitary waste.

123. See id. at 190 (referring to a 1909 figure).

2003] 167

168 STANFORD ENVIRONMENTAL LAWJOURANAL

1890, the population of Chicago more than doubled to over one million inhabitants. During the same decade, Cleveland grew sixty- three percent and Detroit and Milwaukee increased by seventy- seven percent.'2 4 The experience of these midwestern cities was part of a broader pattern. Between 1860 and 1920, the urban popu- lation in the United States jumped from approximately 6 million to over 54 million people.12 5 This growth was fueled both by a new rush of immigration and a substantial migration from rural areas to meet the burgeoning labor demands of American industry.' 2 6

C. Exporting Infectious Waterborne Disease to Downstream Communities

While the new sewer systems did improve local sanitary condi- tions, this progress produced considerable problems. Stream pollu- tion increased, and serious health problems were exported downstream. During the 1880s and 1890s, the number of deaths and illnesses caused by infectious waterborne diseases grew alarm- ingly in cities and towns that drew drinking water from streams contaminated by upstream neighbors.'2 7 Ironically, many of these downstream communities themselves had spent considerable sums on the construction of new sewer systems and had expected to reap significant health benefits as a result. Instead, they suffered rising rates of infection and mortality from typhoid fever.12 8

Pittsburgh, for example, pumped its drinking water from the

124. See KEHOE, supra note 40, at 18. 125. See Melosi, Environmental Crisis, supra note 97, at 9. Compared to the rest of the

world, the United States was experiencing a population explosion at the end of the nine- teenth century and the beginning of the twentieth century. Between 1850 and 1920, the population of the United States rose by an incredible 357%, whereas the world population increased by a more modest 55%. See id.

126. See id. at 9-10. 127. According to the Ohio State Board of Health, nearly every town along the Ohio

River discharged its sewage to the river and drew drinking water from it as well. One town, Bellaire, actually contaminated its own drinking water supply by locating its water intake downstream of its sewage outfall. See DuFFY, supra note 30, at 176.

128. See TARR, URBAN POLLUTION, supra note 29, at 12-13, 190. Typhoid fever is an infectious bacterial disease. The source of the infection is human waste either from per- sons who have the disease or from carriers who may harbor typhoid bacterium in their gallbladders for many years. Typhoid is commonly spread by drinking water or eating shell- fish that has been contaminated by sewage. Flies can also spread the disease from sewage to food. Its symptoms include prolonged fever, diarrhea, abdominal pain, enlargement of the spleen and liver, and, if treatment is inadequate, complications such as intestinal bleeding, renal failure, and peritonitis may develop. See THE AMERICAN MEDICAL ASSOCIATION ENCY- CLOPEDIA OF MEDICINE 1017 (1989); STEINBERG, NATURE INCORPORATED, supra note 73, at 232.

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20031 EVOLUTION OF WATER POLLUTION CONTROL 169

Allegheny River, a stream that was increasingly polluted by munici- pal and industrial discharges in communities located only a few miles upstream. The city's death rate from typhoid fever soared- with an annual rate ranging from 107 to 144 deaths per 100,000 residents between 1880 and 1905.129 The nearby city of Allegheny suffered an even worse fate.130 Atlanta, Louisville, Newark, Phila- delphia, and Washington all experienced typhoid mortality rates exceeding seventy deaths per 100,000 in 1890.151 Furthermore, two relatively small Massachusetts mill towns, Lowell and Lawrence, suf- fered severe typhoid epidemics in the 1890s because their source of drinking water, the Merrimack River, was seriously tainted by upstream sewage discharges.13 2 Great Lake cities like Chicago were also afflicted, not because of their neighbors' conduct, but because of their own-the use of the lakes for both drinking water and as a sewage receptacle.' 3 3

The failure of cities to treat sewage discharges resulted partly

129. See TARR, URBAN POLLUTION, supra note 29, at 189. 130. See Galishoff, supra note 27, at 40. 131. See TARR, URBAN POLLUTION, supra note 29, at 189. 132. See STEINBERG, NATuRE INCORPORATED, supra note 73, at 226, 232-33; JAMES

RIDGEWAY, THE POLITICS OF ECOLOGY 31-32 (1970). 133. See Galishoff, supra note 27, at 40. In Chicago, 1008 persons died from typhoid

outbreaks in 1890, and in 1891, the death rate rose to 166 persons per 100,000-with 1997 persons perishing from typhoid fever. See ARNOLD LEWIS, AN EARLY ENCOUNTER WITH To- MORROW: EUROPEANS, CHICAGO's Loop, AND THE WORLD's COLUMBIAN EXPOSITION 29 (1997).

Eighty-five percent of Chicago's sewage was dumped into the Chicago River, whose flow had been reversed in 1871. As a result of the 1871 "deep-cut' canal and the pumping of water from Lake Michigan into the Chicago River, the river now flowed westward, carry- ing most of the city's sewage into the Mississippi River basin instead of Lake Michigan, the source of Chicago's drinking water. Unfortunately, the river would reverse course and flow once again into Lake Michigan whenever heavy rains overwhelmed the action of the pumps and the "modest declivity of the canal." LEWIS, supra, at 27. As a result, the lake would become polluted even at a point two miles from shore where most of Chicago's drinking water intakes were located. To ensure that Chicago's sewage would flow toward the Mississippi, a new and larger Sanitary and Ship Canal was opened in 1900. Id. at 28-29. So much lake water was diverted down the new canal to ensure both adequate flow away from the lake and sufficient dilution of Chicago's untreated sewage that the mean level of Lake Michigan and Lake Huron actually dropped six inches by 1927, while the level of both Lake Erie and Lake Ontario fell five inches. SeeWisconsin v. Illinois, 278 U.S. 367, 407 (1929).

However, typhoid outbreaks continued to occur after the new sanitary canal was opened because a number of sanitary sewers still flowed directly into Lake Michigan. See Platt, supra note 107, at 204-05, 212. Even the construction of a new water intake-located four miles offshore in Lake Michigan-did not provide enough protection. So the city began to experiment with the use of chlorine in 1912, and extended its use to the entire drinking water supply in 1916. See Galishoff, supra note 27, at 4849.

170 STANFORD ENVIRONMENTAL LAWJOURNAL

because until the 1890s, most medical experts believed that ty- phoid epidemics resulted from filthy conditions like dirty streets, improper drainage, inadequate waste collection, shoddy housing, improper ventilation rather than from consuming contaminated water. Scientists at the Massachusetts State Board of Health's Law- rence Experimental Station, however, had noticed a strong rela- tionship between the severity of the disease and the source of a city's water supply. Consequently, they explored the link and con- firmed in 1894 that typhoid was transmitted by ingesting water that had been polluted with human waste containing the typhoid bacil- lus.' 3 4 Contrary to prevailing wisdom,'3 5 the Lawrence laboratory also proved that whatever purifying effect flowing water might have in certain cases, it was completely inadequate when it came to pro- tecting downstream populations from the ravages of typhoid.' 3 6

D. Industrial Pollution: Unavoidable, Inevitable, and Ignored

Sewage was not the sole contaminant in river water. A wide range of industrial activity was concentrated in the nation's grow- ing urban areas. Iron and steel plants, textile mills, food and animal processing facilities, paper manufacturers, and chemical factories used large amounts of water for cooling and processing purposes and produced prodigious amounts of wastewater and other contaminants. Nearby rivers and lakes presented a cheap and attractive way to dispose of these industrial wastes.1 3 7 By 1900, ap- proximately forty percent of the pollution loading to American riv- ers was industrial in origin.'3 8

134. See DuFiw, supra note 30, at 201-02; STEINBERG, NATURE INCORPORATED, supra note 73, at 236-37.

]35. For example, the president of the New York Board of Health, a professor of chemistry at Columbia University, declared in 1873 that the "natural process of purifica- tion" in our rivers "destroys the offensive bodies derived from sewage, and renders them harmless." MELOSI, SANITARY CITY, supra note 81, at 85.

136. See STEINBERC, NATURE INCORPORATED, supra note 73, at 239. 137. See Melosi, Environmental Crisis, supra note 97, at 7. For a vivid description of the

kinds of pollutants discharged by textile mills, paper mills, and tanneries located along the Merrimack River, see STEINBERG, NATURE INCORPORATED, supra note 73, at 207-09.

138. See Melosi, Environmental Crisis, supra note 97, at 7. Prior to the construction of hundreds of municipal sewer systems in the later half of the nineteenth century, industrial discharges had clearly been the leading cause of water pollution in the United States. See ANDREWS, supra note 26, at 126; STEINBERG, NATURE INCORPORATED, supra note 73, at 210. In addition to sewage and industrial wastes, urban waters were also commonly fouled by trash and bodies of both animal and human origin. See HAYS, supra note 76, at 143. Mean- while, water quality in many rural areas was suffering from the impact of mining activities, especially coal mining. See, e.g., SUsAN Q. STRANAHAN, SusQuEHANNA: RIVER OF DREAMs 153-

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Public health authorities, however, placed a much higher prior- ity on dealing with the threats posed by sewage rather than indus- trial waste. A number of factors help explain this emphasis. First, public health authorities were primarily concerned with control- ling intestinal illnesses such as typhoid, which were conveyed by pathogens found in human waste, not industrial waste.'3 9 Second, the toxic components found in industrial pollution were generally regarded as "beneficial sterilizing additives" that would kill the bac- teria found in municipal discharges.' 4 0 Third, because the problem of industrial pollution was so complex, involving hundreds of dif- ferent processes and pollutants, it appeared to be just too difficult and expensive to control.' 4 ' Therefore, many public health offi- cials were resigned to industrial pollution as an "unavoidable" and "inevitable product of urban, industrial life."'14 2 Fourth, combating industrial pollution would mean regulating extremely powerful ec- onomic interests-ample reason perhaps to concentrate on provid- ing municipal water and sewer services rather than risk defeat by tackling such a formidable foe.'4 5 Finally, typhoid was a much eas- ier target because public opinion was already aroused by this dis- ease whose "dreaded germs infiltrated insidiously" into the homes of rich and the poor alike.'4 4

E. Fighting Waterborne Disease: Sewage Treatment vs. Water Filtration

Bacteria-laden sewage was therefore considered the primary

54 (1993) (describing fish kills from mine acid drainage along the West Branch of the Susquehanna that occurred as early as 1907).

139. SeeJoel A. Tarr, Industrial Wastes and Public Health: Some Historical Notes, Part I, 1876-1932, 75 AM. J. PUB. HEALTH 1059, 1060 (1985) [hereinafter Tarr, Public Health] . The only cases where public health authorities were worried about direct infection arising from industrial pollution involved the possible spread of anthrax as a result of discharges from tanneries and wool scouring operations. See id.

140. See CRAIG E. COLTEN & PETER N. SKINNER, THE RoAD TO LoVE CANAL: MANAGING

INDUSTRIAL WASTE BEFORE EPA 24 (1996). There were voices at the turn of the century that called upon public health authorities to pay attention to the overall health of U.S. rivers and not to focus exclusively upon the impact of sewage upon human health. For example, Marshall 0. Leighton, a hydrographer with the U.S. Geological Survey, argued that the major water pollution problem of the day was industrial pollution that destroyed fish and aquatic life and interfered with natural processes. Leighton's pleas, however, largely fell upon deaf ears. See Tanr, Public Health, supra note 139, at 1060.

141. See Tarr, Public Health, supra note 139, at 1060; EARL FINBAR MURPHY, WATER PuRITY A STUDY IN LEGAL CONTROL OF NATURAL RESOURCES 80 (1961) (referring to the lack of technical knowledge for treating industrial waste at this time).

142. STEINBERG, NATURE INCORPORATED, supra note 73, at 211.

143. See ANDREWS, supra note 26, at 128-29. 144. Platt, supra note 107, at 202.

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172 STANFORD ENVIRONMENTAL LAWJOURNAL [Vol. 22:145

problem. Accordingly, the Lawrence Experimental Station also conducted research on ways to treat sewage prior to discharging it into various waterways. In the early 1890s, scientists at Lawrence refined a system for intermittent filtration of sewage, a method that could be quite effective given adequate land and appropriate soil. 4̀ 5 Intermittent filtration thusjoined land treatment (known to many as sewage farming) 148 as the most widely utilized form of sew- age treatment.14 7 The use of either system, however, was limited by cost. Large'amounts of land were needed, especially if a city had built a combined sewer system to handle storm water runoff as well as sanitary sewage. Nevertheless, by 1900 engineers were claiming that resources were available "to bring about the purification of sewage to any reasonable degree. This costs money.. ., [sic] but not so much as is often believed.' 4 8 Around the turn of the cen- tury, engineers introduced the trickling filter, a mechanical treat- ment technology that, while not cheap, eliminated the need to acquire and use large tracts of land.14 9 After 1910, an even more promising technology became available-the activated sludge pro- cess-which utilized "good" bacteria to treat sewage.'5 0

The use of sewage treatment technology was not the only method of controlling bacteria. The Lawrence laboratory discov- ered that slow sand filters could remove the typhoid bacillus from river water. Through the construction of such a filtration system in 1893, the drinking water in Lawrence was restored to health.15' By 1900, some twenty cities had built slow sand filters, though most cities favored new mechanical filters that were easier and cheaper

145. Intermittent filtration utilized sand beds and natural aeration to remove most suspended material and a good deal of bacteria. By 1900, over thirty cities and towns were using intermittent filtration. See MELOSI, SANrrARY CITy, supra note 81, at 168.

146. In land treatment, agricultural fields were irrigated with sewage. In the United States, land treatment proved most attractive in the arid areas of the West. By 1914, for example, land treatment was being used by some thirty-five communities in California to grow fodder for livestock as well as walnuts and oranges. Elsewhere, however, the process suffered from nagging public health concerns, such as the possible contamination of neighboring streams from runoff, the potential exposure of agricultural workers to disease organisms, and the fitness of the resulting crops for human or animal consumption. See id. at 167-68.

147. See TARR, URBAN POLLUTION, supra note 29, at 162-63. 148. Id. at 163 (quoting The Water Suppl of Large Cities, ENGINEERING REc. 41, 73

(1900)).

149. See RIDGEWAY, supra note 132, at 33-35. Developed by the Lawrence laboratory around 1890, the first large-scale trickling filter was built in Madison, Wisconsin, in 1901. See MELosI, SANITARY CITY, supra note 81, at 170.

150. See MELOSI, SANITARY CGy, supra note 81, at 172. 151. See STEINBERG, NATURE INCORPORATED, supra note 73, at 238.

EVOLUTION OF WATER POLLUTION CONTROL

to operate.1 5 2 Another breakthrough came in 1908, when the Jersey City Water Company became the first large urban water sup- plier to use chlorine on a continuous basis to disinfect its water supply.

15 3

Given these advances in technology, cities now had a choice to make. They could provide safe drinking water to their own citizens, while also aiding their downstream neighbors by cleaning up their sewage. Alternatively, they could opt to simply purify their own drinking water and force their neighbors to contend with bacteria- laden river water. The resulting debate over which course to follow increasingly divided the public health community into two oppos- ing camps from 1900 to 1914.154 Eventually, most cities would opt to simply treat their own drinking water while continuing to dis- charge raw sewage.

Although many sanitary engineers had been pleased by the re- cent improvements in sewage treatment technology, a number of leading engineers were now more impressed with the filtration sys- tems that so effectively removed bacteria from drinking water. These new systems were cheaper to build and operate than sewage treatmenit facilities, especially in cities that had chosen to build combined sewer systems. There was now a way to avoid the huge capital costs of either converting to separate sewers or building treatment facilities large enough to handle storm events-a fact that probably provided great relief to many sanitary engineers and their client cities. In 1903, the Engineering News argued that it was often "more equitable" for an upstream city to discharge raw sew- age and for its downstream neighbor to filter the river water than to force the upstream city to treat its waste. 1 5 6 Not only was filtra- tion less expensive, 1 5 7 it also guaranteed that a city's water supply

152. See Galishoff, supra note 27, at 45. By 1914, mechanical filters were being used by 303 cities and towns whereas sand filters were being used in forty-two locations. See ALLEN HAZEN, CLEAN WATER AND How TO GET IT 86-88 (1914).

153. See Galishoff, supra note 27, at 45. Although chlorine had been used to treat sewage in Europe during the late nineteenth century, it had not been used to purify drink- ing water. See DuFFY, supra note 30, at 202. By 1920, a survey of 1000 U.S. cities revealed that almost half were using chlorine or some other form of disinfectant. See MELOSI, SANI- TARY Crry, supra note 81, at 144-45.

154. See TARR, URBAN POLLUTION, supra note 29, at 163. 155. See infra notes 178-80. 156. Sewage Pollution of Water Supplies, 4 ENGINEERING REC. 117 (1903) [hereinafter

Sewage Pollution]. 157. See HAZEN, supra note 152, at 36 (stating that "per million gallons the cost of

purifying water is much less than the cost of purifying sewage").

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174 STANFORD ENVJRONVMENTAL LAWJOURRNAL

was free from dangerous pathogens, a result that sewage treatment systems in upstream communities could not absolutely guaran- tee.' 5 8 An influential engineering book first published in 1907 thus concluded that it was "both cheaper and more effective" to purify drinking water than to treat raw sewage.' 5 9 "The water works man therefore must, and rightly should, accept a certain amount of sew- age pollution in river water, and make the best of it."'16 0

Many public health physicians disagreed. The report of a stream pollution committee that was submitted to the 1909 Confer- ence of State and Provincial Boards of Health recommended in general against the discharge of untreated sewage into streams that were subsequently used for public water supplies. 1 6 ' They advo- cated instead for a system of double protection in which both sew- age and drinking water would be treated.16 2 The report also saw value in protecting some streams for their recreational value: "The fact that many of our streams and lakes have been ruined for boat- ing, bathing, and fishing, by reason of their pollution cannot be else than a material loss to the people at large and a serious dimi- nution in the value of the resources of the country."' 6 8 These kinds of arguments appealed to many conservationists and advocates of progressive reform. For example, in 1909, New York Governor Charles Evans Hughes declared that the state could "no longer af- ford to permit the sewage of our cities and our industrial wastes to be poured into our watercourses."' 6 4 Further, in 1910, former Pres- ident Theodore Roosevelt called for state and federal water pollu- tion legislation observing that "civilized people should be able to dispose of sewage in a better way than by putting it into drinking water."1 6 5

158. Storm overflows, a discharge from a vessel, or an area still served by privies could be more than enough to contaminate a city's water supply with the typhus bacillus. See id.

159. Id. Hazen noted, however, that sewage treatment was justified in some situations to avoid the creation of local nuisances such as foul odors or floating substances. See id. at 34-35. Nevertheless, "the fact must be fully recognized that the discharge of crude sewage from the great majority of cities is not locally objectionable in any way to justify the cost of sewage purification." Id. at 36.

160. Id. at 37. 161. See The Pollution of Streats, 60 ENGINEERING REC. 157, 159 (1909). 162. See id. at 158. However, the report noted that the filtration of drinking water

supplies might be all that was necessary in some places for some time to come. See id. 163. Id. 159. As a general rule, the report recommended "partial" sewage treatment

when necessary to protect the "normal use and enjoyment" of a stream. See id. at 159. 164. TARR, URBAN POLLUTION, supra note 29, at 166. 165. Id. For a general treatment of the conservation movement in the early years of

the twentieth century, see SAMUEL P. HAYS, CONSERVATION AND) THE GOSPEL OF EFFICIENCY:

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20031 EVOLUTION OF WATER POLLUTION CONTROL

A number of state legislatures were moving in this direction as well. In Pennsylvania, the legislature reacted to a series of typhoid outbreaks by passing a statute in 1905 that prohibited the dis- charge of untreated sewage from new municipal sewer systems. Older systems could continue dumping untreated sewage, but could not expand unless they obtained permits from the state De- partment of Health.'6 6

F. Pittsburgh: A Critical Showdown in the Debate Over Sewage Treatment

Pittsburgh had long suffered from chronically high levels of ty- phoid. due to the use of contaminated river water. In 1907, how- ever, the city completed a slow sand filtration plant that reduced the death rate from typhoid fever from over 100 per 100,000 per- sons to approximately 22 per 100,000 persons by 1910. Pittsburgh, nevertheless, continued to discharge raw sewage into the Alle- gheny, Monongahela, and Ohio Rivers, thus contributing to high rates of typhoid in a series of smaller downstream communities. Therefore, when Pittsburgh applied for permission to expand its sewer system in 1910, given the continued problems with sewage discharge, the state Department of Health instructed the city to prepare a comprehensive plan for the construction of a sewage treatment plant. The City was also ordered to consider converting the city's sewer system from combined sewers to a separate sanitary sewer in order to increase the efficiency of the treatment plant.'

6 7

Pittsburgh hired the distinguished engineering firm of Allen Hazen and George Whipple to prepare the plan. Their report was strong medicine-it all but accused the state health authorities of being unfair to the City of Pittsburgh. No city had ever gone to the tremendous expense 'of cleaning up its own sewage or replacing a combined system with a separate system in order to protect the water supply in a downstream community.'

68 Furthermore, the

THE PROGRESSIVE CONSERVATONIST MOVEMENT, 1890-1920 (1959); ROBERT H. WIEBE, THE

SEARCHI FOR ORD,ER 1877-1920 (1967). 166. See TARR, URBAN PoLLTmoN, supra note 29, at 167.

167. See id. at 168. The Department issued similar orders to a number of cities, in-

cluding Philadelphia. See A Plea for Common Sense in State Control of Sewage Disposal, 67 ENGI-

NEERING NEWS 412 (1912) [hereinafter A Plea for Common Sense]. 168. SeeTheMostImportantSewerageand SewageDisposalReportMadeinthe United States:

Messrs. Hazen & Whipple Advise the City of Pittsburg to Disregard the Recommendations of the

Pennsylvania Health Department, 65 ENGINEERING REc. 209 (1912) [hereinafter Hazen &

Whipple Issue Pittsburgh Report]. In a few "exceptional" cases, however, large cities had paid

175

176 STANFORD ENVIRONMENTAL JAWJOURNAL

Health Department's request was impractical and unrealistic. Ac- cording to the report, the cost of converting Pittsburgh's combined sewer system into a separate system and building a treatment plant would be higher than the cost of providing filtered water for all of the twenty-six towns immediately downstream from Pittsburgh.' 6 9

Hazen and Whipple contended that the only possible reason Pittsburgh should build a system with limited treatment capacity would be to prevent the creation of a local nuisance.17 0 For exam- ple, some settling tanks could be constructed near the outdets of the largest sewers in order to remove heavier suspended solids. In this way, Pittsburgh could reduce "the deposits of sewage mud" which apparently became "offensive" during summer low-flow con- ditions, but in no case would this kind of rudimentary treatment render the river water fit to drink.'7 ' Hazen and Whipple added, however, that it might not always be advisable or even practical for

smaller upstream communities to treat their waste in order to benefit the larger, down- stream community's water supply. Id.

169. See Tarr & McMichael, supra note 31, at 57. 170. SeeHazen d&e Whipple Issue Pittsburgh Repor supra note 168, at 211. Plaintiffs at this

time occasionally won cases for local nuisances that were filed against upstream communi- ties. See, e.g., Platt Brothers & Co. v. City of Waterbury, 45 A. 154 (Conn. 1899) (causing noxious odors and inability to use river water for industrial purposes); Edmondson v. City of Moberly, 11 S.W. 990 (Mo. 1889) (producing sickening stench); Chapman v. City of Rochester, 18 N.E. 88 (N.Y. 1888) (contaminating plaintiffs pond); Markwardt v. City of Guthrie, 90 P. 26 (Okla. 1907) (cause of action stated for contaminating reservoir main- tained for plaintiff's livestock). Results, however, varied tremendously fromjurisdiction to jurisdiction. Compare City of Valparaiso v. Hagen, 54 N.E. 1062, 1062 (Ind. 1899) (denying relief and asking "[ijf the city is required to go so far to recompense the effect of its sewage, where may it stop short of the sea?"), with Peterson v. City of Santa Rosa, 51 P. 557 (Cal. 1897) (holding any pollution actionable which renders it unfit for domestic pur- poses). Engineering publications, therefore, admonished sanitary engineers to pay close attention to the case law in their own jurisdictions and to be careful-a court might stop sewage pollution if it is "great enough to be apparent to the senses." Sewage Pollution, supra note 156, at 117.

Plaintiffs, however, often experienced difficulty showing (1) that they had suffered material harm; (2) that they had suffered in some way different from the public as a whole (and thus could pursue a case for private nuisance as opposed to a public nuisance which could generally only be brought by the government); and (3) that the polluter's action was unreasonable. Perhaps the biggest hurdle that plaintiffs faced was proving which polluter amongst possibly many possible culprits was responsible for producing a particular harm. Even if a nuisance was recognized, a plaintiff might only receive damages, injunctive relief being denied after the court balanced the equities-balancing the benefit of the polluting activity (such as providing a city with sanitary services) against the value of the adversely affected interest. See Hines, Part I, supra note 68, at 196-200.

171. See Hazen & Whipple Issue Pittsburgh Report, supra note 168, at 211; A Plea for Com- mon Sense, supra note 167, at 413 (declaring that the report had proven that the sanitary engineer was "the greatest of conservationists, zealous to safeguard health and prolong life, but sparing no pains to see that each dollar is spent to the best advantage").

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177EVOLUTION OF WATER POLLUTION CONTROL

a large city to treat its sewage in a way that would prevent the crea-

don of local nuisances. The test, they argued, should be whether

the benefit derived from eliminating the nuisance was reasonably

equivalent to the cost of treatment.' 7 2

The report was a hit in the engineering community,' 7 3 but it

did not please Dr. Samuel G. Dixon, the Pennsylvania Commis-

sioner of Public Health. Dixon reproached the city, declaring that

he had expected Pittsburgh to take a regional, rather than a paro-

chial, approach to the problems of water pollution in Western

Pennsylvania. He contended that the short-term costs of sewage

treatment had to be weighed against the long-range interests of

public health in order to keep the rivers from becoming "stinking

sewers and culture beds for pathogenic organisms."'7 Dixon, how-

ever, eventually recognized the inherent political, financial, and

possible legal difficulty in trying to force Pittsburgh to borrow $37

million to clean up its sewage when downstream communities cer-

tainly had the ability to filter and disinfect their own drinking

water.' 75 He reluctantly gave the city a temporary discharge permitL'7 6

The struggle in Pittsburgh symbolizes the battle in the nation as

a whole. While the debate between public health physicians and

the engineering community was often strident, with some engi-

neers calling the physicians radical or sentimental,' 7 7 the eventual

outcome was clear almost from the outset. The crisis had been de-

fined primarily as a one of public health-the problem of drinking

bacteria-laden water. Since death rates from typhoid were now fall-

ing as cities began to filter and disinfect their drinking water sup-

172. See Hazen & Whipple Issue Pittsburgh Report, supra note 168, at 211.

173. See id. at 209 (declaring it the 'most important ... in the United States.").

174. TARR, URBAN POLLUTION, supra note 29, at 170.

175. The availability, of effective water treatment technology had already prompted

some water customers, who had come down with typhoid fever, to sue their local water

systems for negligence. See Ritterbush v. City of Pittsburg, 269 P. 930 (Cal. 1928); Keever v.

City of Mankato, 129 N.W. 158 (Minn. 1910); Stubbs v. City of Rochester, 124 N.E. 137

(N.Y. 1919); Aronson v. City of Everett, 239 P. 1011 (Wash. 1925).

176. See TARR, URBAN PoLLUrIoN, supra note 29, at 169-70.

177. See id. at 173, 175; see also A Plea for Common Sense, supra note 167, at 412 (accus-

ing the health department of having assumed 'an unwarrantably radical if not a quixotic

position"). The EngineeringNews went so far as to suggest that the Pennsylvania Department

of Health had 'joined blindly in what may be termed the doctors' or physicians' campaign

against the discharge of untreated sewage into streams, with little or no regard to the local

physical and financial conditions." Id. at 413. Thejournal, therefore, concluded that ques-

tions regarding sewage and water supply 'should be decided by engineers, not by physi-

cians." Id-

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178 STANFORD ENV:RONMEATAL LAWJOURNAL [Vol. 22:145

plies, 1 7 8 the immediate crisis appeared to be over, solved by a technological fix. 79 Expenditures of large additional sums for sew- age treatment seemed unnecessary. Thus, despite the existence of fairly effective wastewater treatment technology, cities generally opted not to use it. Water quality, as a result, continued to decline as pollutant loadings continued to climb.'8 0

III. THE DEVELOPMENT OF STATE REGULATION: 1869-1972 God made the rivers, but men made them sewers. 8 '

A. The Early Years: 1869-1920

As we have seen, a series of tragic nineteenth and early twenti- eth century epidemics prompted American cities to invest huge sums of money first in the construction of municipal water systems and later in the construction of sewerage systems and water treat- ment facilities.' 8 2 The episodic outbreaks of cholera and typhoid also led groups of reform-minded citizens to push for the creation of permanent governmental bodies that could continuously fight unsanitary conditions at the local level. The first modern city health department was thus established in New York City in 1866.183 Cities such as Chicago, Cincinnati, St. Louis, and Pitts-

178. See Galishoff, supra note 27, at 35, 51; MELOSI, SANITARY CITY, supra note 81, at145, 147. By 1914, over forty percent of the public water supplies in the United States were filtered. See MELOSI, SANITARY CITY, supra note 81, at 146. By 1923, the only public watersupplies that did not undergo some form of purification were those that flbwed from arte- sian wells. See Galishoff, supra note 27, at 51. As a result, the death rate from typhoid dropped from 31.3 per 100,000 in 1900 to 7.6 in 1920. See DuFEY, supra note 30, at 202.

179. The issue had become redefined as a technical matter for specialists rather thana public issue. Thus the push for cleaner water failed to develop into a broad public move- ment. See ROBERT J. BRULLE, AGENCY. DEMOCRACY, AND NATURE: THE U.S. ENVIRONMENTAL MOVEMENT FROM A CRITICAL THEORY PERSPEcrTvE 180-81 (2000).

180. See ANDREWS, supra note 26, at 125. Surveys conducted between 1913 and 1925indicate that nearly ninety percent of all American cities were dumping raw, untreated sewage into nearby water bodies. See MuRPHY, supra note 141, at 87. The shad fishery in thelower Delaware River Basin provides an excellent example of the devastation that urban sewage caused. Between 1899 and 1921, the annual catch of shad fell from 16.5 million pounds to just 210,000 pounds, due in large measure to extremely low dissolved oxygen levels found in the river below Philadelphia's massive sewage discharge. See STEINBERG, DOWN TO EARTH, supra note 93, at 168.

181. Stream Pollution: Hearings on S. 3958, 5. 3959, S. 4342, and S. 4627 Before a Sub-comm. of the Senate Comm. on Commerce, 74th Cong., 2d Sess. 9 (1936) (reprinting a speechSen. Lonergan gave in December 1935). 182. See supra notes 84-87, 93-95, 104-09, 127-36, 147-60, 178-80 and accompanying

text. 183. See DuFrY, supra note 30, at 120-21; ROSEN, supra note 90, at 221-24. Although

several local health boards had been created before the New York Metropolitan Board of

EVOLUTION OF WATER POLLUTION CONTROL

burgh soon followed suit.'84 By 1900, most large American cities possessed health departments.' 8 5

Although many of these health departments succeeded in keep- ing an eye on local sanitary conditions and reducing a wide array of nuisances, water pollution was no longer an exclusively local prob- lem. Municipal officials in downstream communities were power- less to regulate upstream sources of pollution; so at approximately the same time that urban health departments were emerging in the latter half of the nineteenth century, sanitary and civic reform- ers also began to urge state legislatures to create state-wide boards of health."86

Massachusetts created the first working state health board in 1869,187 and by 1909 every other state had followed suit.'8 8 Most state health boards, however, were weak and ineffectual bodies, and almost all were poorly funded.'8 9 These boards generally spread their limited resources among a wide number of health and sanitation issues.'9 0 Even if they had adequate time and personnel to deal with water quality problems, their authority tended to be quite modest. Typical early state pollution laws included simple bans on the poisoning of drinking water"9 ' and the dumping of dead animals into streams,' 9 2 and declarations that the discharge

Health was established, the earlier boards usually served only in an advisory capacity, and many of them were created only to deal with a particular emergency. See DuFF, supra note 30, at 62, 148.

184. See DuFw, supra note 30, at 122-23. 185. See id. at 205. 186. See id. at 148. 187. See Elizabeth Fee, Public Health and the State: The United States, in THIE HISTORY OF

PuBuc HEALTH AND THE MODERN STATE 224, 232 (Dorothy Porter ed., 1994). Although the Louisiana State Board of Health was actually established fourteen years earlier, in 1855, its authority rarely extended beyond the boundaries of New Orleans. See id. For a history detailing the establishment and early years of the Massachusetts State Board of Health, see BARnARA GtrMhANN ROSENERANTZ, PUBUC I-IEALTH AND THE STATE: CHANGING VIEWS IN MAS- sACHUsETTs, 1842-1936 (1972).

188. See TARR, URBAN POLLUTION, supra note 29, at 162. 189. See Dum, supra note 30, at 153. Out of all of these states, only three (Florida,

Massachusetts, and Rhode Island) spent more than two cents per person on public health services. See Fee, supra note 187, at 232.

190. See TARR, URBAN POLLUTION, supra note 29, at 162. Common responsibilities in- cluded maintaining vital statistics, dealing with sub-standard housing, and supervising the marketing of food. See id.

191. See FLA. STAT. Ch. 8, §§ 2658, 2665 (1891); Act of Dec. 19, 1896, No. 57, § 1, 1896, reprinted in GA. ACrs 84; IDAHO. PENAL CODE § 4916 (1901); Act of Feb. 19, 1891, ch. 82, § 1, 1891, repinted in ME. LAws 67 (as amended at 1905 ME. LAws 100); Act of May 17, 1899, No. 80, 1899, reprinted in MicH-. PUB. Acm 115.

192. See Act of March 16, 1901, ch. 158, sec. 98, § 374, 1901, reprinted in CAL. STAT.

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180 STAAFORD ENVIRONMEENTAL LAWJOURATAL [Vol. 22:145

of grossly offensive material constituted public nuisances.'93 Even a highly respected and relatively well-funded agency like the Massa- chusetts Board of Health was constrained by a limited statutory regime. J94

A few state legislatures eventually enacted stronger legislation. In 1893, Ohio gave its Board of EMealth the authority to approve all new sewage discharges,' 9 5 and Pennsylvania passed legislation in 1905 authorizing the Commissioner of Health to regulate the dis- charge of sewage not only from new sewer systems, but also from older systems that were being expanded.' 9 6 Neither the Ohio nor the Pennsylvania statutes, however, applied to industrial pollution, and as in Pittsburgh, public health authorities often came under enormous pressure to allow new and expanded sewage discharges without any waste treatment.197

B. Despite a Few Innovations, A Bad Situation Gets Worse: 1920- 1945

Bacterial and organic water pollution from municipal sources continued to grow as more and more cities built underground sew- ers that emptied untreated sewage into the nation's waterways. By 1920, 47.5 million Americans were served by underground sewer systems, but only 9.5 million lived in cities where this waste re-

433, 457 (codified at CAL. PENAL CODE § 374 (1901); IOWA CODE ANN. § 4979 (1897); KY. STAT. § 1278 (Carroll 1899); NEB. STAT. §§ 6892, 6893 (1897); OKLA. STAT. ANN. Ch. 56, §§ 3732. 3733 (Wilson 1903); Wis. STAT. ANN. ch. 57, § 1418 (Sanborn 1899-1906).

193. SeeAct of Oct. 9,1903, No. 542, § 15,1903, rep7inted inALA. ACTs 499, 508; ILL. REV. STAT. § 202 (Hurd 1901). For a comprehensive review of state legislation, see EDWIN B. GOODELL, A REVIEW OF THE LAws FORBIDDING POLLUTION OF INLAND WATERS IN THE UNITED STATES (2d ed. 1905, U.S. Geological Survey).

194. Although the 1878 Massachusetts stream pollution act prohibited the discharge of sewage and other forms of pollution within twenty miles of a water supply, all existing discharges were exempt as were any new discharges located along the state's most polluted streams-the Merrimac and Connecticut Rivers-and the portion of the Concord River flowing through the city of Lowell. SeeAct of Apr. 26, 1878, ch. 183, §§ 2, 3, 1878 Mass. Acts 133. For a discussion of the 1878 act, see STEINBERG, NATURE INCORPORATED, supra note 73, at 229-31.

195. See Act of Mar. 14, 1893, § 2, 1893, reprinted in OHIO LAWS 87, 94. 196. SeeAct of Apr. 22, 1905, No. 182, § 4, 1905, reprinted in PA. LAws 260, 261. .197. See supra notes 153-62 and accompanying text; A Plea for Common Sense, supra

note 176 (expressing strong opposition to the construction of sewage treatment facilities in Philadelphia and Meadville, Pennsylvania); TARR, URBAN POLLUTION, supra note 29, at 13 (noting that except for communities that faced severe local nuisance problems, most cities and towns resisted building sewage treatment plants that would only benefit downstream communities).

2003] EVOLUTION OF WATER POLLUTION CONTROL 181

ceived even a rudimentary level of treatment."9 8 Discharges of un- treated industrial waste also grew, and enormously so during the First World War as American production rose to meet wartime de- mands.' 9 9 These industrial discharges were increasingly responsi- ble for severe fish kills and the destruction of aquatic habitats.2 00

By the 1920s, many streams had become little more than sewers carrying a noxious mix of sewage and industrial pollutants. 2 0 In fact, one of the largest cities in Ohio found it necessary to chlorin- ate its water supply twice in addition to filtration.2 0 2 At the same time, other communities in Ohio, Pennsylvania, and elsewhere reached the point where chlorination was no longer a practicable treatment option because chlorine produced objectionable tastes and smells when added to raw water supplies containing certain industrial pollutants.2 0 5 Such problems were widespread. Accord- ing to the American Water Works Association, at least 248 water supplies had been adversely affected by industrial discharges. 20 4

Therefore, reformers in a number of states called upon their legis- latures to enact more effective laws to control industrial pollution.

198. See TARR, URBAN POLLUTrION, supra note 29, at 174.

199. Although state health officials were generally more concerned about sewage than industrial waste because of the clear relationship between human waste and infectious disease, state health departments did offer advice to industrial polluters and often tried to convince them to improve their disposal methods. See MuRpji-x, supra note 141, at 80-81.

200. See Tarr, Public Health, supra note 139, at 1060. Coal silt in the North Branch of the Susquehanna, as a result of mining activity, was 15-25 feet deep by 1917, and the silt was carried downstream by the current as far as Harrisburg, over 100 miles away. See STRANA- HiAN, supra note 138, at 153. For years, these river deposits of coal silt supported a bizarre fleet of steamboats and barges that vacuumed up as much as 300,000 tons of anthracite per year from the bottom of the Susquehanna. Although most of this submarine mining ended by the mid-1950s, dredging continued behind the Safe Harbor Dam until 1973. See id. at 148; see also H.R Doc. No. 469-70 (describing similar condition on the Schuylkill River and explaining that the anthracite industry discharged unusually high amounts of sediment because-due to its market-the mines used mechanical breakers together with water to produce coal of very particular sizes and deposited the wastewater and finer pieces of coal in the adjacent streams).

201. In the early 1920s, a Harvard engineering professor wrote that "Etihere is now greater indifference to stream pollution, a greater laxity in enforcing laws, than was the case before the World War." George C. Whipple, Shall Waterways Be Sewers Forever2, in AMER- icAN CITr 196-97 (Aug. 1926).

202. SeeJohn Emerson Monger, AdministrativePhases of Stream Pollution Contro4l 16 AM. J. Pun. HEALTH 788, 790 (1926).

203. SeeJoel A. Tarr, Searchingfor a 'Sink'for an Industrial Waste: Iron-Making Fuels and the Environment, 18 ENwL. Hisr. RFv. 9, 20 (1994) [hereinafter Tarr, Searching for a 'Sink'I.

204. See COLTEN & SKINNER, supra note 140, at 24 (citing a 1922 report).

182 STANFORD ENVIRONMENTAL LAWJOURNAL

1. The initial development of water quality standards.

A number of states did take a tougher approach by establishing a waterway zoning system based upon beneficial uses-the forerun- ner of the modern water quality standards program. Pennsylvania, for example, created a Sanitary Water Board in 1923 that was au- thorized, first, to classify streams according to their use and then to protect those uses.205 In 1925, the Ohio legislature gave its State Health Department the power to zone existing and potential sources of public water supplies. To protect these waters, the Ohio statute required new industries whose waste might pollute these streams and existing industries wishing to increase or change the nature of their discharges to devise an adequate way of treating their wastes. 206

Although this legislation represented progress in the fight against water pollution, serious problems remained. For example, the Sanitary Water Board of Pennsylvania adopted a Class C use category for those streams "which it is economically inadvisable to restore to a clean condition." 20 7 The Ohio approach did not even apply to streams that were not used, nor contemplated for use, as drinking water supplies. As the Director of the Ohio State Health Department wrote: "The frankly expressed purpose of [our] legis- lation was not to protect fish life or recreational aspects, but rather to protect our [drinking] water supplies from the mounting tide of pollution which was slowly but surely destroying the safety of these supplies . . . "208 Moreover, states acting alone could not protect their public water supplies from interstate pollution.

205. See Tarr, Searching for a 'Sink,' supra note 203, at 22. A number of departmental chiefs or their representatives served on the Board, and its policies were administered by the Bureau of Sanitary Engineering in the Department of Health. See KEHOE, supra note 40, at 23. This approach was designed to minimize the conflicts between the public health authorities, on the one hand, and the new conservation commissions and departments, on the other. See id.

206. See Monger, supra note 202, at 791. 207. Discussion of Administrative Phases of Stream Pollution Control, 16 AM. J. PuB.

HEALTH 795, 797 (1926) (comments of E. Phelps) [hereinafter Discussion of Stream Pollution Control]. The Board then decided that over one-third of the streams in Pennsylvania were so polluted that they were "not worth saving" and thus deserved a Class C classification. STRA,NAHAN, supra note 138, at 155.

208. Monger, supra note 202, at 791. A number of public health officials, however, disagreed with the proposition that the protection of public water supplies should be the sole aim of anti-pollution activities. See, e.g., Discussion of Stream Pollution Control, supra note 207, at 796, 798 (comments of C.M. Baker).

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2. Early interstate cooperation.

In at least one case, the federal government was able to en- courage states to work together to control an interstate threat to the purity of municipal drinking water. In the early 1920s, the U.S. Public Health Service concluded that the drinking water in twenty- five cities located along the Ohio River and its tributaries had be- come virtually undrinkable. 20 9 The chlorine that the cities used to kill the bacteria in their drinking water supplies-drawn, of course, from the local rivers-was reacting with massive amounts of phe- nolic wastes discharged by new by-product coke ovens and produc- ing a strong antiseptic flavor and odor.21 0 These ovens were primarily located in the Pittsburgh and Youngstown areas, as well as in northeastern West Virginia. The U.S. Surgeon General, there- fore, convened two national conferences with representatives from the affected states and other federal agencies.

The conferences led the Ohio River basin states of Penn- sylvania, Ohio, and West Virginia to enter into an agreement in 1924 that established a common policy for dealing with phenolic pollution. 21 " The states agreed not to regulate or sue the coking facilities, but to seek their cooperation in correcting the problem. They also agreed to appoint a board of public health engineers to oversee the process. By 1929, seventeen of the nineteen coke pro- ducers along the Ohio Valley had voluntarily installed phenol re-

209. See F. Holman Waring, Results Obtained in Phenolic Wastes Disposal under the Ohio River Basin Interstate Stream Conservation Agreement, 19 AM. J. OF PUB. HEALTH 758, 763 (1929).

210. See id. at 759 (describing the water as having "a sort of iodoform taste and odor" much "more objectionable" than the "medicinal flavor" phenol normally produced in water absent chlorine). Coke is nearly pure carbon, and it is produced by slowly heating coal in the absence of air. By-product coke ovens were generally located near large, inte- grated steelmaking operations. These steel plants used coke as fuel in their blast furnaces and the coal gas as fuel for other steelmaking processes. The by-product process also pro- duced various dyes, inks, protective coatings, and other chemicals such as benzene, xylene, and toluene. See PHILIP A. MORRIS & MARJORIE L. WHITE, BIRMINGHAM BOUND: AN ATLAs OF THE SOUTH'S PREMIER INDUSTRTAL REGION 7, 33, 35 (1997).

211. See Monger, supra note 202, at 794; Tarr, Searchingfor a 'Sink, 'supra note 203, at 24. All of the states in the Ohio River Valley-New York, Pennsylvania, Ohio, West Virginia, Kentucky, Indiana, Tennessee, and Illinois-formally entered into an interstate compact to control water pollution in 1939. See Ohio River Valley Water Sanitation Compact (1930), reprinted in DOCUMENTS ON THE USE AND CONTROL OF THE WATERS OF INTERSTATE AND INTER- NATIONAL STREAMS, COMPACTS, TREATIES, AND ADJUDICATIONs 231-37 (T. Richard Witmer ed., 1968) [hereinafter DOCUMENTS ON INTERSTATE WATERS]. For a discussion of various interstate water pollution control agreements, see N. William Hines, NorAny Drop to Drink: Public Regulation of Water Quality, Part I, Interstate Arrangementsfor Pollution Control, 52 IowA L. REv. 432 (1966).

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184 STANFORD ENVIRONMENTAL LAWJOURNAL

duction processes. The process adopted by most of these producers, however, merely redirected phenolic pollution from one environmental medium to another. Rather than dumping the phenolic wastewater into adjacent streams, the plants were now us- ing it to quench hot coke, a process that produced clouds of phe- nol, cyanide, and ammonia-laden steam for the nearby communities to breathe. 2 12

Although some engineers objected to this practice, critics were unable to demonstrate how industrial air pollutants actually af- fected human health. In view of the limited knowledge of the day, most industrial and public health officials concluded that coke quenching was the most cost-effective solution to this serious water pollution problem.2 1 3 Furthermore, to the public, it appeared as if the government had taken decisive action to safeguard public health.

3. Public health concerns continue to dominate state programs.

Unfortunately, the obvious impacts of industrial pollution on water supplies-obnoxious tastes, repulsive odors, and solids that clogged filters-were garnering more attention from public health authorities than the more subtle, but more devastating effects that industrial pollutants-acids, solvents, heavy metals, and other toxic chemicals-were having upon public health and the environ- ment.2 " 4 The limitations of science in the 1920s and 1930s made it extremely difficult to determine the biological impact of long-term exposure to small amounts of these industrial pollutants. In addi- tion, the sanitary engineers who dominated water pollution re- search, as well as pollution control policy, were not particularly disposed to studying the toxic characteristics of industrial chemi- cals.2 15 Nor could they have investigated these questions. The col- laboration of physicians and biologists with engineers that had proved so fruitful in the fight against typhoid and other bacterio- logical diseases had run its course. The sanitary engineers now had "few means for expanding their health agenda beyond that set by their earlier medical collaborators," namely the bacterial threats to

212. See Tarr, Searching for a 'Sink,' supra note 203, at 24-26. 213. See id. at 26. 214. See COLTEN & SKINNER, supra note 140, at 24; MELOSI, SANITARY Crry, supra note

81, at 227-28; Herman G. Baity, Aspects of Governmental Policy on Stream Pollution Abatement, 29 AM. J. PUB. HEALTH 1297, 1299 (1939).

215. See Christopher Sellers. Factory as Environment: Industrial Hygiene, Professional Col- laboration and the Modern Sciences of Pollution, 18 ENVTL. HIST. REv. 55, 70 (1994).

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EVOLUTION OF WATER POLLUTION CONTROL

drinking water posed by sewage.2" 6 And so industry continued, in the vast majority of instances, to discharge untreated wastes. 217

A few states tried to protect uses other than drinking water. Connecticut passed a statute in 1925 that created a state water pol- lution control commission, independent of the state health depart- ment, and authorized action to protect fish and recreation.2 18 In many other states, however, the efforts of sportsmen and conserva- tion groups, such as the Izaak Walton League,21 9 to pass tougher legislation were unsuccessful. 2 2 0 Generally, state agencies- whether the state health department itself, an arm of the health department, or an independent pollution control body-contin- ued to focus on purifying drinking water.

4. The New Deal: Federal financing of local sewer projects.

By 1930, American cities discharged more untreated sewage than they had in 1920,221 and the pressure that the early Depres- sion years exerted on municipal budgets produced even more trouble. Casting about for something to cut, many cities found sew- age treatment budgets and personnel obvious targets for budget

216. Id. at 57. 217. See Tarr, McCurley & Yosie, supra note 37, at 75. Industry and some engineers

argued that pollutants like mine acid drainage and pickling liquor from steel plants actu- ally improved the sanitary condition of the receiving streams because they had a germicidal effect on sewage. See, e.g. TARR, URBAN POLLUTroN, supra note 29, at 345; Pollution of Naviga- ble Waters, Hearings Before the Comm. on Rivers and Harbors, Part 2, 67th Cong., 2d Sess. 122 (1921) (statement of the Vice President of the Hudson Coal Co. of Scranton, Pa.); The city engineer of Wilkes-Barre eventually contended that sewage was good for the receiving water because "it counteracted the acid in the river." STRANAHAN, supra note 138, at 164.

218. See Discussion of Stream Pollution Control, supra note 207, at 800 (comments of Warren J. Scott).

219. The Izaak Walton League was founded in Chicago in 1922 to represent the in- terests of sportsmen. It joined three other national conservation groups that had been organized during the Progressive Era: the Sierra Club, the Audubon Society, and the Na- tional Parks and Conservation Association. See Robert Cameron Mitchell et al., Twenty Years of Environmental Mobilization: Trends Among National Environmental Organizations, in AMERI- cAN ENVIRONMENTALISM: THE U.S. ENviRONMENTAL MOVEMENT, 1970-1990, at 12-13 (Riley

E. Dunlap & Angela G. Mertig eds., 1992). 220. See Monger, supra note 202, at 790-91. Interest in outdoor recreation was boom-

ing amid the prosperity of the 1920s. Sales of outboard motors, for example, grew 150 percent betveen the period of 1920-1924 and 1925-1929. See KEHOE, supra note 40, at 23.

221. The urban population served by sewers increased substantially during the 1920s, to some 60 million Americans. However, those whose sewered waste went untreated also rose, from 38 million in 1920 to 42 million in 1930. See TARR, URBAN POLLUTION, supra note 29, at 194. Sewage treatment, nevertheless, even if just a complement to dilution, was be- ginning to experience more acceptance as a necessary technical and public service. See MELOSI, SANrrARY CITY, supra note 81, at 247-48.

18520031

186 STANFORD ENV[RONMENTAL JLAWJOURVAL [

reductions because they could be slashed without provoking an im- mediate public outcry. 2 2 2 The New Deal, in contrast, brought some relief as thousands of Americans were put to work building new sewage treatment plants.2 2 3 By 1939, fifty-four percent of the sewered population was served by waste treatment facilities, al- though half of those facilities only provided primary treatment, a form of treatment that reduces carbonaceous biochemical demand by about thirty percent by removing most materials that float or settle.2 2 4

5. Enforcement shunned in favor of cooperation and compromise.

During the 1930s, industrial pollution went virtually un- checked.2 2 5 Most state agencies possessed little pertinent regulatory authority. 2 2 6 Streams with use classifications were frequently rele- gated to the status of open sewers.2 2 7 State agencies, furthermore, tended to shun enforcement-even the application of simple nui- sance law-in favor of persuasion, education, cooperation, and compromise. 2 2 8 The sanitary engineers who dominated the agen- cies at this time argued that this cooperative approach was really

222. See Editorial, New Occasions-New Duties, 22 AM. J. PUB. HEALTH 1169 (1932). 223. See BEATRICE HORT HoLMEs, U.S. DEP'T OF ACRICULTURE, A HISTORY OF FEDERAL

WATER RESOURCES PROGRAMS, 1800-1960, at 13, 15-16 (1972); see also MELosI, SANnTARY CITY, supra note 81, at 240-44 (discussing New Deal-era sewage treatment construction projects).

224. Of a total sewered population of 73 million, 19 million were served by primary treatment facilities (providing about thirty percent removal of total organic material) and nearly 21 million were served by substantially more efficient facilities. The waste of the remaining 33 million Americans was discharged raw. See NATIONAL RESOURCES COMMITTEE, WATER POLLUTION IN THE UNITED STATES, THIRD REPORT OF THE SPECIAL ADVISORY COMM.

ON WATER POLLUTION, H.R. Doc. No. 155-76 [hereinafter THIRD REPORT OF THE SPECIAL ADVISORY COMM. ON WATER POLLUTION]. Out of approximately 5000 sewage plants in oper- ation in 1939, hundreds used activated sludge technology. More popular, however, were the Imhoff tank and trickling filter. See MELOSI, SANITARY CITY, supra note 81, at 249, 254.

225. See TARR, URBAN POLLUTION, supra note 29, at 373; W.B. Hart, Waste Treatment Problenms from the Viewpoint of Industiy, 20 SEWAGE WoRKs J. 273, 273-74 (Mar. 1948). Al- though no reliable estimates exist that would indicate the total amount of industrial pollu- tion discharged to the nation's waters in the late 1930s, the serious polluters were ranked in the following order of significance: food products, paper and pulp, textiles, petroleum products, and metallurgical products. There were estimates at the time, however, that the bituminous coal industry was responsible for the discharge of some 2.7 million tons of sulphuric acid annually. See MELOSI, SANIrARY CITY, supra note 81, at 249-54; Baity, supra note 214, at 1299.

226. State agencies also continued to suffer from a lack of adequate funding. See KE_ HOE, supra note 40, at 23.

227. See Whipple, supra note 201. 228. See, e.g., Waring, supra note 209, at 764, 770 (the Chief Engineer of the Ohio

Department of Health urging cooperation with industry rather than enforcement and cit-

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the only "practical" one, and that the "impatient" conservationists who sought tougher enforcement, even federal regulation and fed- eral enforcement, were in hopeless pursuit of a "panacea."2 2 9 A leading sanitary engineer asserted that "the critics appear to be so unacquainted with the technical bases of pollution abatement as to fail even to recognize that the scientific problems are difficult, complex, and slow of solution."280

Such attacks were not only arrogant and condescending, but also misleading. While no adequate technologies existed at the time to treat certain more exotic industrial discharges, industrial discharges were often organic in nature and thus amenable to the same sorts of biological treatment that were already used in con- junction with municipal wastes.2 8 ' In other instances, sanitary engi- neers could have used simple sedimentation ponds that would have allowed various oils to be skimmed from waste streams prior to disposal. These engineers could also have easily devised various systems for reusing wastewater. Clearly, the claim that industrial treatment was difficult, perhaps technically impossible, to achieve helped mask the primary political and economic objections to stronger regulatory efforts aimed at industrial pollution. The agen- cies were undoubtedly concerned that the cost of compliance might slow future economic growth and might provoke some do- mestic industries to seek more hospitable business environments in other states.2 8 2 The more immediate and pressing concern, how- ever, was entirely political-fear of the personal and institutional price that might be exacted if powerful, entrenched industrial in- terests were taken to court.2 8 8 The logic behind a cooperative ap-

ing the Ohio River Basin Agreement as a model approach); Monger, supra note 202, at 792; Baity, supra note 214, at 1303.

229. See Baity, supra note 214, at 1302. 230. Id. at 1303. Dr. Baity's paper was read at the 1939 Annual Meeting of the Ameri-

can Public Health Association in Pittsburgh, Pennsylvania. 231. See THIRD REPORT OF THE SPECIAL ADVISORY COMM. ON WATER POLLUTION, supra

note 224. at 48; H. Sidwell Smith, The Industial Point of View, in WATER POLLUTION AND ABATEMENT 134, 135 (Ted L. Willrich & N. William Hines eds., 1967).

232. See COLTEN & SKINNER, supra note 140, at 77; Galishoff, supra note 27, at 54; MELOSI, SANITARY CITY, supra note 81, at 231; Hines, Part I, supra note 68, at 186, 235; KEHOE, supra note 40, at 38; Monger, supra note 202, at 792; Tarr, Searching for a 'Sink,' supra note 203, at 22-23, 27; U.S. EPA History Program, Oral History Interview with William D. Ruckelshaus 5-7 (1993) (recalling industry's threat to "move to the south" whenever the Indiana program pushed too hard back in the 1960s) [hereinafter,Ruckelshaus].

233. See, e.g., Hines, Part I, supra note 68, at 205 (1966) (referrinng to the "enormous" political clout and economic power possessed by some large scale polluters-a fact that was recognized by the state pollution control agencies); Monger, supra note 202, at 792 (argu-

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188 STANFORD ENVI'RONMENTAL LAWJOURNAL

proach thus appeared to be unassailable to these state officials. One, therefore, also wonders whether little more than self-interest may have been behind two other claims commonly made by state officials-namely, that industry wanted to cooperate with them, and that cooperation produced faster and better results than more formal regulatory tools.2 3 4 Self-interest, as well as an attempt at self- justification, may have also motivated those sanitary engineers who placed an inordinate amount of emphasis on the capacity of receiv- ing streams to assimilate industrial waste and their own ability to determine the proper balance of uses for every stream. 2 3 5

6. The impact of World War II.

World War II brought total industrial mobilization, a near com- plete dedication of resources to the war effort, and a huge rise in water pollution. The federal public works program that had con- structed so many municipal waste treatment facilities during the 1930s was an early victim of the war budget.2 3 6 Traditional indus- tries like iron, steel, oil, coal, automobiles, and shipbuilding, and newer ones such as aluminum and aircraft experienced massive ex- pansions and tight production schedules. Prodigious quantities of munitions and chemicals were produced, while electricity genera- tion rose by over fifty percent. Wartime shortages and military re- search spending also resulted in dozens of new products and chemical formulations, such as synthetic rubber and nylon, artifi- cial detergents and solvents, DDT, and other pesticides.2 3 7 The pri- ority given to rapid increases in the nation's capacity to wage war meant that virtually all new industrial wastewater, just like old was- tewater, would be dumped-untreated-into the nation's water- ways. 23 8 " [C] onditions that were bad enough before the war [thus] became much worse."'2 3 9 Not surprisingly, given their prior track

ing that public opinion at the time would not support strict enforcement efforts); Ruckel- shaus, supra note 232, at 5-6 (stating that the Governor's office in Indiana would call to remind the state program that "the offending industries would leave the state if pressed too much").

234. See Monger,. supra note 202, at 792; Waring, supra note 209. at 764, 769-70. 235. See Baity, supra note 214, at 1298, 1305-06. Those emphasizing the self-purifying

capacity of streams sometimes failed to point out the almost complete lack of data concern- ing the composition, toxicity, and volume of industrial discharges, plus the fact that toxic chemicals are seldom if ever purified by the action of a flowing stream. See id.

236. See MuRPHn, supra note 141, at 89. 237. See ANDREWS, supra note 26, at 180-81. 238. See MELOSI, SANITARY CITY, supra note 81, at 314. 239. Hart, supra note 225, at 273. The Delaware River had become so polluted with

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record and the demands of wartime, state agencies turned a blind eye.240

C. Too Little, Too Late: 1945-1972

By the war's end, industrial discharges were the greatest source of water pollution in the United States. Industrial waste effluents now outpaced municipal sewage by a ratio of seven to six. 241 World War II, moreover, was followed by an era of unprecedented growth and prosperity. Between 1946 and 1970, chemical production in- creased six times over, rubber and plastic production rose nearly five-fold, and aluminum production quadrupled. Furthermore, car sales doubled, phosphate detergents came into large-scale use, and pesticide usage climbed 168 percent. 2 4 2 At the same time, industry was not eager to be subjected to government regulation. At the federal level, industry leaders argued that pollution control should be treated as a state matter,2 4 3 and, at the state level, they con- tended that strict regulation would drive business into less regu- lated jurisdictions. 2 4 4 Consistent with those positions, these businessmen often argued that they should be allowed to control their own polluting activities through trade association guidance and self-regulation. 2 4 5

1. The reorganization of state water pollution control efforts.

Whether it was because of the grossly polluted condition of the nation's waters or because of "the specter of [possible] federal in- tervention," many states did attempt to reform their water pollu- tion programs during the post-war era. 2 4 6 One approach they took was to reorganize their water pollution control effort. Up to this

industrial chemicals that the commandant of the Philadelphia Naval Yard complained that the river was responsible for eating the paint off his ships. See STRANAHAN, supra note 138, at 166 n.8.

240. See COLTEN & SKINNER, supra note 140, at 139 (citing a 1947 article that ap- peared in the EngineeringNews-Record); MuRPHY, supra note 141, at 89. As the Governor of Indiana explained, "it would be irrational to attempt punitive action against industries ... exerting themselves on war production." Id.

241. See MuRPHY, supra note 141, at 89; TARR, URBAN POLLUTION, supra note 29, at 375 (quoting U.S. Surgeon General Dr. Thomas Parran).

242. See ANDREWS, supra note 26, at 186-88. 243. "Left unsaid was the fact that because of their firms' greater economic impor-

tance and political clout at the state level, business executives simply found it easier to exert influence over state officials .... " KEHOE, supra note 40, at 35.

244. See MuRPiuHv, supra note 141, at 89. 245. See COLTEN & SKINNER, supra note 140, at 89. 246. KEHOE, supra note 40, at 25.

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190 STANFORD ENVIROANMENTAL LAWJOURNVAL

time, most substantive state authority had been located in the state health department. This organizational scheme had been roundly criticized by conservationists and other reformers,2 4 7 who alleged that health departments were unduly influenced by powerful eco- nomic interests, and that as a result, their efforts at anti-pollution enforcement were exceedingly lax.2 4 8

Although in some cases a "go-slow" enforcement policy may have been justified by the sheer complexity of certain problems, all too often "the laxness in enforcement may well have been attribu- table to an unwillingness to face up to the difficult policy decisions required for successful pollution control."2 4 9 The critics of the sta- tus quo also felt that the health departments had too many differ- ent programs to administer to allow them to focus adequate attention on water pollution. Furthermore, their emphasis on the bacteriological aspects of water pollution limited their ability to deal with pollution in a more modern, comprehensive fashion.2 5 0

In response to this critique, a number of states created new in- dependent pollution control agencies during the 1950s. 2 51 Others chose to reorganize the pollution control functions within their health departments. 2 5 2 By 1966, thirteen states had established in- dependent pollution control agencies, while twenty-one states had created a statutory agency within the health department or other designated body to administer water pollution programs. In six- teen states, however, primary authority for pollution control re- mained vested with the state department of health.2 5 3

247. See Hines, Part I, supra note 68, at 204-07. 248. See id. at 204-05. State regulatory agencies are more likely to be "captured"-thus

minimizing their ability to act in the public interest-since they face the task of regulating a relatively small number of companies, some of which are extraordinarily powerful, in the relatively parochial environment of a state capital. See AYREs & BRAITHWAITE, supra note 23, at 55. But whether or not any of these agencies were, in fact, captured, it was impossible for them to ignore threats, such as those repeatedly made by the Wisconsin paper industry, that the industry wouldjust leave and go to a state, most likely a southern state, "where its presence would be more appreciated." MuRPHY, supra note 141, at 105.

249. See Hines, Part I, supra note 68, at 205. 250. See id. at 206; Murray Stein, Problems and Programs in WaterPollution, 2 NAT. RE-

souRcEsJ. 388, 405-06 (1962); see also HAsKELL & PRICE, supra note 46, at 245 (offering a broad but succinct analysis of the inability of state health departments to administer effec- tive pollution control programs).

251. See Hines, Part I, supra note 68, at 204. 252. See id. at 204. 253. See id. at 216. In most instances, a part-time board or commission was set up to

make major policy decisions for the new agency, regardless of whether it was a completely independent agency or just a reorganized portion of the health department. See KEHOE, supra note 40, at 25. Some of these boards were composed wholly of state officials includ-

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2. The difficult challenge of implementing water quality standards.

Many states also tried to specify the level of pollution that could be tolerated in a given body of water. Pennsylvania was the first state to adopt this kind of approach, 2 5 4 and by 1963, ten more states had followed suit, establishing fairly comprehensive systems to set water quality standards. 2 5 5 Under this approach, streams or particular reaches of a stream would be classified for a particular use such as industrial operations, agriculture, fish and wildlife, shellfish harvesting, recreation, or drinking water supply. To main- tain the designated use, technical criteria would be set to define maximum amounts of such things as bacteria and solids, and the minimum level of dissolved oxygen that could be present in the receiving stream.2 5 6 While these standards had the advantage of be- ing adaptable to local conditions, the criteria were difficult. to set. In addition, they were extremely difficult to implement because the ambient criteria, in order to be enforceable, had to be trans- lated into specific discharge limitations. 2 5 7 In doing so, how were regulators supposed to allocate the assimilative capacity of the stream? Should the allocation be based on the number of employ- ees in each industry, the number of citizens in each town, or some- thing else? Would it have to be recalculated every time there was a new, modified, or expanded discharge? Should a mixing zone in the receiving stream be taken into account when setting discharge limits? If so, how large should the zone be-two feet below the

ing, for example, representation from the highway, health, agriculture, commerce, and

conservation departments. Others also had members from various interest groups. See

Hines, Pa7t I, supra note 68, at 218. Statutes generally specified that these members would represent groups such as industry, agriculture, municipal governments, and labor. Statutes

also often included one or two members from conservation groups or the general public.

See HASKELL & PRICE, supranote 46, at 244. 254. See supra notes 198 & 200, and accompanying text. 255. See 109 CONG. REc. 19,662-63 (1963) (comments of Sen. Sherman Cooper of

Kentucky) (listing Massachusetts, Nebraska, New Hampshire, New York, North Carolina,

Oregon, South Carolina, Utah, Vermont, and Washington). Some other states that did not

have formal water quality standards did classify streams on an informal basis in order to try

to set discharge limitations for particular areas. See KEHOE, supra note 40, at 33. Others, like

Mississippi, had established some minimum water quality criteria (for dissolved oxygen, for

example) while others, like Idaho and Maryland, had set some minimum effluent stan-

dards (like primary or secondary treatment). See 109 CONG. REC. 19,660 (1963).

256. See, e.g., N.Y. WATER POLLUTION CONTROL BOARD, RULES AND CLASSIFICATIONS AND STANDARDS OF QUALITY AND PURITY FOR WATERS OF NEW YoRK STATE (1950); FEDERAL WATER POLLUTION CONTROL ADMINISTRATION, WATER QUALITY CRITERIA: REPORT OF THE

NATIONAL TECHNICAL ADvISORY COMMITrEE TO THE SECRETARY OF THE INTERIOR vii (1968); Hines, Part I, supra note 68, at 226.

257. See Hines, Part I, supra note 68, at 226.

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discharge pipe, 200 feet, or two miles downstream? 2 5 8

Aside from these technical problems, many critics also feared that stream standards would be "permanently fixed" at too low a level and that, once fixed, inertia would transform them into "veri- table licenses to pollute."2 5 9 These fears were sometimes realized. In Mississippi, for example, the Game and Fish Commission, in or- der to protect fish and wildlife, set a minimum average dissolved oxygen concentration of three milligrams per liter in 1946,260 de- spite the fact that it was already well-recognized that five milligrams per liter was necessary to maintain a diverse fish population in in- land waters. 261 The Mississippi standard, however, remained un- changed for over twenty years until 1967 when, under federal prodding, the standard was raised to a still inadequate standard of four milligrams per liter.2 62 After surveying the history of water quality standards in the Great Lakes area during this same period, Terence Kehoe, an environmental historian, concluded that these standards had "led to a system of de facto 'zoning' in which some rivers and lake areas were allowed to deteriorate and even relatively clean waters were exposed to waste discharges that received less treatment than appeared feasible at the time."2 6 5

3. The early development of uniform effluent limitations.

Many clean water advocates argued that all polluters should be forced to clean up their discharges according to some uniform ap- proach, despite the condition of the receiving stream.2 64 In fact, uniform effluent limitations had been in use for nearly as long as water quality standards.2 65 The Pennsylvania Sanitary Water Board

258. See Milligan, supra note 65, at 279. Milligan was an industrial wastes engineer with the Pennsylvania Department of Health. The EPA and every state program in the country still wrestle with the kinds of questions he raised in 1948 about waste load alloca- tions and mixing zones.

259. See Hines, Part I, supra note 68, at 224. 260. See Mississippi Comm. on Natural Res. v. Costle, 625 F.2d 1269, 1273 (5th Cir.

1980).

261. See, e.g., THiRD REPORT OF THE SPECIAL ADVIsoRY COMM. ON WATER POLLUTION, supra note 234, at 64; M.M. Ellis, Detection and Mleasurement of Stream Pollution, 48 BULL. U.S. BUREAU OF SPORT FISHERIES AND WILDLIFE 365, 376 (1937).

262. See Mississippi Comm. on Natural Res., 625 F.2d at 1273. 263. KEHOE, supra note 40, at 10. Hines similarly concluded that "[t]he history of

state control of pollution does not support optimism toward the control agency's develop- ment of rigorous standards." Hines, Part I, supra note 68, at 224.

264. See KEHOE, supra note 40. at 10. 265. See New York Harbor (Tri-State) Interstate Sanitation Compact Art. VII (1935),

reprinted in DOCUMENTS ON INTERSTATE WATERS, supra note 220, at 227 (requiring all sewage

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adopted this approach in the mid-1940s, requiring sewage treat- ment facilities to make certain percentage reductions in their dis- charges and requiring industry to treat its waste to an equivalent degree. 2 6 6 In Pennsylvania, effluent limitations did not replace water quality standards; rather, they were used in conjunction with water quality standards. Just like the federal Clean Water Act of 1972, the Pennsylvania program in the 1940s aimed at imposing more stringent requirements than minimum effluent limitations in order to meet ambient stream standards.2 6 7

Industry chafed under the Pennsylvania approach. Many com- panies felt that the use of effluent limitations required, at least in many cases, "treatment for treatment's sake."2 6 8 As an Atlantic Re- fining official put it in 1948, "[w] aste treatment is only a tool .. . to be used in building the recovery of a stream which has been spoiled ... But what will it matter if twenty or a thousand establish- ments discharge their waste into a stream if that stream fulfills all its values . . . ?"121 In such a case, the use of effluent limitations could lead to an unnecessarily high level of cleanup.

Defenders of the Pennsylvania program justified its approach in two ways. First, they argued that it was only fair that each dis- charger do its share to clean up state waters. A company that does the right thing by investing in pollution control technology and keeping it in good operating condition should not be "penalized with respect to a similar plant having poor housekeeping."

2 7 0 Sec- ond, effluent limitations were used for practical reasons. The problems with actually applying water quality standards as a regula- tory device were so "overwhelming" that an approach "based solely on the condition of the receiving streams [was] simply not feasi-

discharges in Class A areas to have been treated to remove all floating solids and at least sixty percent of suspended solids); Ohio River'Valley Water Sanitation Compact art. VI (1939), reprinted in DOCUMENTS ON INTERSTATE WATERS, supra note 220, at 233 (requiring,

within a reasonable time, the treatment of municipal sewage to remove substantially all settleable solids and not less than forty-five percent of suspended solids).

266. See Milligan, supra note 65, at 280. A number of other states also relied, at least in part, upon the use of effluent limitations. See, e.g., MD. ANN. CODE. art. 96A, § 23 (1957); OHIO REV. CODE ANN. § 6111.03 (West 1964).

267. See Milligan, supra note 65, at 279-80 (describing what was in the author's opin- ion a compromise between "one extreme of arbitrary percentages of reduction for each source of pollution and the opposite extreme of requirements based only on the condition of the receiving body of water").

268. See KEHoE, supra note 40, at 10. 269. Hart, supra note 225, at 277. 270. Milligan, supra note 65, at 280.

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ble."'2 7 1 If the Pennsylvania program had been denied the use of effluent limitations, many disinterested engineers and chemists agreed that the state's "stream improvement program would be delayed for years." 2 7 2 Perhaps that is precisely why industry pre- ferred the ambient water quality approach. 2 7 3

4. Weak enforcement continues.

Enforcement remained a major weakness in most state pro- grams throughout the post-war period and up until the 197 0s.2 7 4

This was not due to a paucity of enforcement tools, but to the be- lief among state regulators that persuasion was more effective than formal enforcement tools.2 7 5 The Indiana State Pollution Control Board, for instance, justified its reliance upon persuasion and co- operation by claiming that it was able to "maintain better relations with offenders which results in a greater likelihood of effective op- eration of the pollution abatement facilities with a minimum of supervision by State-employed personnel." 2 7 6 This approach un- doubtedly helped state agencies maintain cordial relations with the regulated community, but the "policy of entreatment" failed to produce cleaner streams.2 7 7

The reliance upon voluntarism and informal cooperation re- flected the limited political power that most of these agencies pos- sessed. 2 7 8 The reality of having to deal with politically powerful

271. Id. at 279. 272. Id. at 280. 273. Industry's argument against the Pennsylvania use of effluent limitations seems to

have been misdirected in at least in one respect. It argued for clear and well-defined regu- latory requirements, and directed its criticism at the requirement that industrial treatment levels were to be somehow equivalent to municipal treatment. See Hart, supra note 225, at 276. However, over the long run, a mature system of effluent limitations likely produces more certainty and better-defined limitations than a system based solely upon water quality standards. See, e.g., Hines, Part I, supra note 68, at 226.

274. See WATER RESOURCES COUNCIL, STAFF REPORT TO THE NATIONAL COMMISSION ON WATER QUALITY, STAFF REPORT V-29 (April 1976).

275. See Hines, Part I, supra note 68, at 227; Stein, supra note 250, at 406, 408-09; MuRPHY, supra note 141, at 115-16, 143; see also Stein, supra note 250, at 407-08 (setting forth a statistical compilation of state enforcement activity primarily during the 1950s).

276. KEHOE, supra note 40, at 35 (quoting from the agency's Annual Report, 1962- 1963).

277. Hines, Part I, supra note 68, at 227. Many officials and employees in the state agencies had likely deceived themselves into thinking that the path of least resistance was, in fact, the most effective way to reach compliance.

278. All too often these agencies were small, "overworked, understaffed, under- financed, and [possessed] very little power." Arnold W. Reitze,Jr., Wastes, Water, and Wish- ful Thinking. The Battle of LakeErie, 20 CASE W. REs. L. REv. 5, 80 (1968) [hereinafter Reitze,

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cities and industries with major economic clout 2 7 9 made modera-

tion a virtue in the eyes of the pragmatic engineers who ran the agencies. This moderation-compromise, in the eyes of the conser- vation community-meshed well with the professional values that dominated the engineering community at the time. Sanitary engi- neers were proud individuals, proud of their professional compe- tence and common sense, and convinced that important resource decisions ought to be made by hardheaded, technically trained ex- perts like themselves.

These experts in "horn-rimmed glasses and dark suits" also de- fined professional success by reference to "well-established profes- sional norms."2 8 0 These norms dictated that the engineer as

regulator needed, above all, to set a practical course that could generate support in the community and provide for economic prosperity. The need for wastewater treatment and the degree nec- essary to clean up, therefore, depended upon the use of the stream, its assimilative capacity, and the economic impact of pollu- tion control upon the community. "Any other approach struck the engineers as wasteful and inefficient."128 '

It was not uncommon for state regulators to become "overly sympathetic" to the interests of those they regulated. 28 2 This ten-

Lake Erie]; see also ANDREWS, supra note 26, at 232 (stating that prior to 1970, most state governments had "developed little institutional capacity to control pollution"). In 1965, for instance, the Ohio Water Pollution Control Board's entire engineering staff included just nine professionals, while the state spent only $240,000 on the agency's budget. Even with a federal grant-in-aid of $214,000, the state agency's total budget fell far short of the $2 million a year that the Federal Water Pollution Control Administration recommended for the agency's budget. See Reitze, Lake Erie, supra, at 80-81. The Ohio League of Women Voters also detected a rather perverse tendency to match increases in federal aid with decreases in state funding. See id. at 81 (citing LEAGUE OF WOMEN VOTERS OF OHIO, WATER POLLUTION CONTROL, POLLUTION CONTROL BoARD POLIcIES, PROGRAMS, AND LAWS IN OHIO 6 (1966)).

279. Industry also consistently intimidated state agencies by trotting out the old argu- ment about competitive disadvantage-the contention that strong regulation would penal- ize in-state companies and thus disadvantage them vis-a-vis industry located in other states. This assertion, according to Kenneth Reid, the Executive Director of the Izaak Walton League, explained why so many states failed to make "any real effort" to enforce their water pollution laws. Pollution of Navigable Waters: Hearings on H.R. 519, H.R. 587, and H.R. 4070 Before the House Comm. on Rivers and Harbors, 79th Cong. 230 (1945). Mr. Reid added, "I think the only thing that will make pollution control effective is uniformity ... because no State is going to enforce pollution control against its industries ... if competing industries in the neighboring States are not compelled to do the same thing." Id. at 235.

280. KEHOE, supra note 40, at 31. 281. Id. at 32. 282. HASKELL & PRICE, supra note 46, at 244. For a discussion of how major polluters

exercised influence over many state agencies, see ARNOLD W. REn-zE, JR., 1 ENviRONMENTAL

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dency on the part of the professional staff was often echoed by state governing boards that were generally dominated by represent- atives of local governments and industrial interests. While the boards were theoretically designed to guarantee broad representa- tion, "in practice these bodies [were] run as the private clubs of the regulated interests." 2 8 3

5. A few success stories.

Nevertheless, during these years the states made some progress. A number of states created permit systems to regulate the dis- charge of water pollutants, although in most instances the permit requirements only applied to new facilities or to substantial modifi- cations to existing ones.2 8 4 New municipal treatment facilities were also built.2 8 5 Ohio virtually doubled its sewage treatment capacity during the 1950s,2 8 6 and in the mid-1960s New York Governor Nel- son Rockefeller's Pure Waters program-including a $1 billion bond issue to build sewage treatment plants-was enacted into law. 2 8 7 Ohio, furthermore, reported that by 1959, two-thirds of the state's industries that discharged into Lake Erie or its tributaries had attained satisfactory levels of waste treatment. 2 8 8 Such claims, however, were often misleading. The Ohio authorities, for exam- ple, did not define the level of treatment that was satisfactory, and industrial wastewater treatment in the Great Lakes area at this time typically left significant amounts of pollution in a plant's effluent discharge. 2 8 9

6. The rising tide of dissatisfaction with state efforts.

In the face of a growing population and rapidly expanding manufacturing activity, state regulatory efforts were proving too lit-

LAw 4-137 (1972); see also DENNIS C. WILLIAMS, THE GuARDIAN: EPA's FoRMATIVE YEARS, 1970-1973 (EPA History Program 1993) (stating that business groups preferred state regu- lation to federal because "they found it easier to outmaneuver or bully state officials into not enforcing regulations").

283. HAsKELL & PRICE, supra note 46, at 244. 284. See Hines, Part I, supra note 68, at 230-31. By 1970, at least eight states had some

kind of permit program. See Water Pollution Control in Texas, 48 TEX. L. REv. 1029, 1057-60 (1970); L.A. Powe, Jr., Water Pollution Control in Washington, 43 WASH. L. REv. 425, 432 (1967).

285. See MELOSI, SANiTARY CITY, supra note 81, at 329-30. 286. See KEHOE, supra note 40, at 44. 287. See id. at 83-84. 288. See id. at 45. Ohio officials claimed that municipal and industrial expenditures

on water pollution control in Ohio topped $600 million during the 1950s. See id. at n.l. 289. See id. at 45.

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tle, too late. In 1960, 3,500 cities and towns in the United States were still discharging the raw waste of 25 million Americans.

2 9 0 Of the approximately 7,500 communities that had sewage treatment facilities, only two-thirds were served by secondary treatment plants; the rest made do with antiquated, primary treatment sys- tems.2 9 ' Viewed in a more abstract way, the total effluent from both treated and untreated municipal sources in the United States in 1960 would have equaled the amount of raw sewage produced by 75 million people.2 9 2 Despite all this sewage, municipal sources were running "a distant second to industry in the water pollution derby."2 9 3 By 1968, eighty percent of the pollutant loading to American waters was industrial in origin, up from forty percent in 1900.294 Of the 22 billion gallons of wastewater which American industry discharged on a daily basis in 1970, only twenty-nine per- cent received any treatment whatsoever-regardless of whether the level of treatment was adequate. 2 9 5

The implications for water quality were appalling. In the 1960s, Lake Erie was experiencing accelerated eutrophication

2 9 6 -a pro- cess that also adversely affected a number of other American waters including Lake Tahoe, the Great South Bay on Long Island, Lake Oneida in New York, and a number of bays along the southern shore of Lake Ontario.2 9 7 In 1968, the Buffalo River was described

290. See Stein, supra note 250, at 396-97. 291. See MELOSI, SANITARY CITY, supra note 81, at 332. 292. See Stein, supra note 250, at 396. 293. Hines, Part I, supra note 68, at 192. 294. See Melosi, Environmental Crisis, supra note 97, at 7. In 1963, American industry

was discharging-measured solely in terms of the biological oxygen demand (BOD) of organic wastes and suspended solids-three times more waste than municipal sources, and these industrial discharges were increasing at the rate of 4.5 percent per year-three times the rate of U.S. population growth. BEATRICE HORT HOLMES, U.S. DEP'T OF AGRICULTURE,

HISTORY OF FEDERAL WATER REsOURCES PROGRAMS AND POLICIES, 1961-70, at 208 (1979). Viewed from a historical perspective, the discharge of organic industrial waste had in- creased ten-fold during the first sixty years of the twentieth century. See Stein, supra note 250, at 398. No figures, moreover, were available in the early 1960s on the amount of inorganic wastes (mine acid, as well as wastes from metal pickling, metal finishing, chrome tanning, and so on) or synthetic chemicals dumped into U.S. waters on an annual basis. See id. at 399-400.

295. See Rodgers, supra note 69, at 764. This did, however, represent quite an im- provement. In 1957, for instance, only 2.9 percent of the chemical manufacturing facilities in the Northeast, Middle Atlantic, and Midwest states had some form of waste treatment in place. See COLTEN & SKINNER, supra note 140, at 90.

296. See WILLLAM McGUTCKEN, LAKE ERIE REHABILITATED: CONTROLLING CULTURAL Eu- TROPHICATION, 1960s-1990s, at 44-48 (2000).

297. See D.F. Jackson, Introduction to ALGAE, MAN, AND THE ENVIRONMENT vii (D.F. Jackson ed., 1968). For more examples, see W.T. Edmondson, Eutrophication in North

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as "a repulsive holding basin for industrial and municipal wastes under the prevalent sluggish flow conditions. It [was] devoid of ox- ygen and almost sterile. Oil, phenols, color, oxygen-demanding materials, iron, acid, sewage, and exotic organic compounds [we]re present in large amounts."2 9 8 The Cuyahoga was described in equally graphic terms in 1968: "The lower Cuyahoga River and navigation channel throughout the Cleveland area is a waste treat- ment lagoon. At times, the river is choked with debris, oils, scums, and floating globs of organic sludge. Foul smelling gases can be seen rising from decomposing materials on the river's bottom."2 9 9 While these two rivers were among the most polluted in the United States in the late 1960s, appalling conditions afflicted countless streams and lakes across the country.30 0 For more and more Ameri- cans, water pollution was becoming intolerable.

With the rise of the "affluent society"3 0 ' most Americans could afford to devote increasing amounts of time and resources to recre- ation and various outdoor pursuits. All too often, however, the trip to the beach or to one's favorite fishing spot was marred by foul, rotting algae, dead fish, or globs of oil and tar. Not surprisingly, many Americans concluded that stronger discharge requirements and stronger enforcement mechanisms were needed. 3 0 2 State regu- latory agencies, however, seemed sluggish and unresponsive, una-

America, in EuTRoPHIC-ATION: CAUSES, CONSEQUENCES, CORRECTIVES 124-49 (National Acad- emy of Sciences ed., 1969).

298. U.S. DEP'T OF INTERIOR, FWPCA LAKE ERIE REPORT: A PLAN FOR WATER POLLU- TION CONTROL 50 (Aug. 1968).

299. Reitze, Lake Erie, supra note 278, at 7 (quoting a statement of George Harlow, Director of the Lake Erie Program Office of the Federal Water Pollution Control Administration).

300. See, e.g., DONALD E. CARR, DEATH OF THE SWEET WATERS 127-80 (1966) (discuss- ing dozens of grim situations nationwide); Thomas E. Christman, Water Pollution and Ex- panding Production in the Steel, Chemical, and Petroleum Industries, in ENVIRONMENTAL SIDE EFFECTS OF RISING INDUSTRIAL OUTPUT 45, 77-82 (AlfredJ. Van Tassel ed., 1970) (summa- rizing water quality problems in New York, New Jersey, Indiana, Illinois, California, and Rhode Island). Even at Niagara Falls, tourists were forced to cover their noses to ward off the stench coming from the sewage and industrial waste discharged to the Niagara River. See KEHOE, supra note 40, at 94.

301. This term was coined byJohn Kenneth Galbraith to describe the post-warAmeri- can economy. JOHN KENNETH GALBRAITH, THE AFFLUENT SOCIETY (I 969).

302. See KEHOE, supra note 40, at 52-53 (referring to calls for action made not only by the traditional conservation groups, but by good government groups such as the League of Women Voters and new single-issue groups that focused on water pollution or particular rivers and lakes). Membership in the major environmental organizations grew rapidly dur- ing the 1960s. Membership in the Sierra Club, for instance,jumped from 20,000 in 1959 to 113,000 in 1970, while membership in the National Wildlife Federation rose from 271,000 in 1966 to 540,000 in 1970. See SALE, supra note 59, at 23.

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ble or unwilling to do what was necessary to correct these problems.303 Some of their officials seemed almost eager to turn themselves into caricatures of complacency. For example, amid na- tional headlines about the sorry condition of Lake Erie in 1965, the chairman of the Ohio Water Pollution Control Board in 1965 not only asserted that the lake was in relatively good shape, but accused extremists of having blown the water pollution problems of Lake Erie out of proportion.3 0 4 Not to be outdone, the chairman of the North Carolina State Stream Sanitation Committee proudly de- clared in 1966 that "[w] e have never had a case in court. We go the first mile, the second mile, and then sometimes the third mile."3 0 5

The federal government, in contrast, appeared to be more ag- gressive in the 1960s. The federal water pollution control program was growing quickly, and a number of liberal Democrats in Con- gress were trying to expand the federal role in combating water pollution. Many concerned and disgruntled Americans citizens be- gan turning to the federal government for help.

IV. CONCLUSION

The United States experienced a remarkable transformation during the first century and a half of its history-a transition from a rural society to an urban one, from an agrarian economy to an industrial power. During that time, local and state governments had to contend with all the consequences of rapid change, includ- ing a number of new health and environmental challenges. It is not surprising that these governments responded to the growing problem of water pollution with a series of short-term solutions. Many of the problems associated with urban water quality, for ex- ample, appeared amenable at first glance to quick, though often expensive, technological fixes.

Unfortunately, such quick fixes often failed to produce lasting solutions. Faced with ever-increasing levels of water pollution from both municipal and industrial sources, state governments devel- oped a number of regulatory approaches to try to control water pollution. Occasionally, these regulatory approaches were quite in- novative-the first uniform effluent limitations, for instance, as

303. See HASKELL & PRICE, supra note 46, 243; ANDREWS, supra note 26, at 232-33. 304. See KEHOE, supra note 40, at 64. For years, in fact, the Ohio agency had been

defending the water quality in Lake Erie despite mounting evidence to the contrary- perplexing many concerned citizens in the process. See id. at 61.

305. DAVID ZwICK & MIARcY BENSTOCK, WATER WASTELAND 258 (1971).

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well as water quality standards and discharge permits. The new reg- ulatory devices, however, failed to fulfill their promise. Faced with powerful, concentrated opposition from industry as well as from many municipalities, the states were reluctant to apply them com- prehensively. Furthermore, regardless of which regulatory mecha- nism a state employed-innovative or more traditional-state water pollution control agencies were generally unwilling to take vigorous enforcement action, preferring informal cooperation and voluntary compliance. The public's tolerance for this incremental and largely ineffective approach to pollution control was wearing thin by the 1960s.

The pace of federal activity, therefore, accelerated between 1961 and 1970. The Federal Water Pollution Control Act of 1948306 (the slender reed that it was) was amended four times, 3 0 7 and by 1970 the Refuse Act of 1899308 had been rediscovered as an en- forcement tool that could be used against industrial dischargers.3 0 9

The nation's overall approach to water pollution, however, re- mained disjointed, and the nation's water quality continued to de- cline. By 1972, the country was searching for a dramatically different approach, one that was informed by prior experience, not limited by it-an approach to regulation which eschewed short- term answers in favor of long-term, comprehensive strategies. In short, the time was ripe for an extraordinary new statute: The Clean Water Act of 1972. The evolution of this federal response will be developed in the second installment of this article.

306. Pub. L. No. 80-845, 62 Stat. 1155 (1948). 307. FederalWaterPollution ControlActAmendments of 1961, Pub. L. No. 87-88, 75

Stat. 498; Water Quality Act of 1965, Pub. L. No. 89-234, 79 Stat. 903; Clean Water Restora- tion Act of 1966, Pub. L. No. 89-753, 80 Stat. 1246; Water Quality Improvement Act of 1970, Pub. L. No. 91-224, 84 Stat. 91.

308. Rivers and Harbors (Refuse) Act of 1899, § 13 (Codified at 33 U.S.C. § 407 (2000)).

309. See Rodgers, supra note 69, at 767-69.

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COPYRIGHT INFORMATION

TITLE: The Evolution of Water Pollution Control in the United States—State, Local, and Federal Efforts, 1789-1972: Part I

SOURCE: Stan. Envtl. L.J. 22 no1 Ja 2003 WN: 0300100549003

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