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Without healthy water for drinking, cooking, fishing, and farming, the human race would perish. Clean water is also necessary for recreational interests such as swimming, boating, and water skiing. Yet, when Congress began assessing national water quality during the early 1970s, it found that much of the country's groundwater and surface water was contaminated or severely compromised. Studies revealed that the nation's three primary sources of water pollution—industry, agriculture, and municipalities—had been regularly discharging harmful materials into water supplies throughout the country over a number of years.
These harmful materials included organic wastes, sediments, minerals, nutrients, thermal pollutants, toxic chemicals, and other hazardous substances. Organic wastes are produced by animals and humans, and include such things as fecal matter, crop debris, yard clippings, food wastes, rubber, plastic, wood, and disposable diapers. Such wastes require oxygen to decompose. When they are dumped into streams and lakes and begin to break down, they can deprive aquatic life of the oxygen it needs to survive.
Sediments may be deposited into lakes and streams through soil erosion caused by the clearing, excavating, grading, transporting, and filling of land. Minerals, such as iron, copper, chromium, platinum, nickel, zinc, and tin, can be discharged into streams and lakes as a result of various mining activities. Excessive levels of sediments and minerals in water can inhibit the penetration of sunlight, which reduces the production of photosynthetic organisms.
Nutrients, like phosphorus and nitrogen, support the growth of algae and other plants forming the lower levels of the food chain. However, excessive levels of nutrients from sources such as fertilizer can cause eutrophication, which is the overgrowth of aquatic vegetation. This overgrowth clouds the water and smothers some plants. Over time, excessive nutrient levels can accelerate the natural process by which bodies of water evolve into dry land.
Thermal pollution results from the release of heated water into lakes and streams. Most thermal pollution is generated by power plant cooling systems. Power plants use water to cool their reactors and turbines, and discharge it into lakes and tributaries after it has become heated. Higher water temperatures accelerate biological and chemical processes in rivers and streams, reducing the water's ability to retain dissolved oxygen. This can hasten the growth of algae and disrupt the reproduction of fish.Toxic chemicals and other hazardous materials present the most imminent threat to water quality. The Environmental Protection Agency (EPA) has identified 582 highly toxic chemicals, which are produced, manufactured, and stored in locations across the United States. Some chemical plants incinerate toxic waste, which produces dangerous by-products like furans and chlorinated dioxins, two of the most deadly carcinogens known to the human race. Other hazardous materials are produced or stored by households (motor oil, antifreeze, paints, and pesticides), dry cleaners (chlorinated solvents), farms (insecticides, fungicides, rodenticides, and herbicides), and gas stations and airports (fuel).
Water pollution regulation consists of a labyrinth of state and federal statutes, administrative rules, and common-law principles.
Federal statutory regulation of water pollution has been governed primarily by three pieces of legislation: the Refuse Act, the Federal Water Pollution Control Act, and the Clean Water Act. The Rivers and Harbors Appropriations Act of 1899, 33 U.S.C.A. § 401 et seq., commonly known as the Refuse Act, was the first major piece of federal legislation regulating water pollution. The Refuse Act set effluent standards for the discharge of pollutants into bodies of water. An effluent standard limits the amount of pollutant that can be released from a specific point or source, such as a smokestack or sewage pipe. The Refuse Act flatly prohibited pollution discharged from ship and shore installations.
The Refuse Act was followed by the Federal Water Pollution Control Act of 1948 (FWPCA), 33 U.S.C.A. § 1251 et seq. Instead of focusing on sources of pollution through effluent standards, the FWPCA created water quality standards, which prescribed the levels of pollutants permitted in a given body of water. Where the Refuse Act concentrated on deterring specific types of polluters, the FWPCA concentrated on reducing specific types of pollution.
Since 1972, federal regulation of water pollution has been primarily governed by the Clean Water Act (CWA) 33 U.S.C.A. § 1251 et seq., which overhauled FWCPA. The CWA forbids any person to discharge pollutants into U.S. waters unless the discharge conforms with certain provisions of the act. Among those provisions are several that call upon the EPA to promulgate effluent standards for particular categories of water polluters.
To implement these standards, the CWA requires each polluter to obtain a discharge permit issued by the EPA through the National Pollutant Discharge Elimination System (NPDES). Although the EPA closely monitors water pollution dischargers through the NPDES, primary responsibility for enforcement of the CWA rests with the states. Most states have also drafted permit systems similar to the NPDES. These systems are designed to protect local supplies of groundwater, surface water, and drinking water. Persons who violate either the federal or state permit system face civil fines, criminal penalties, and suspension of their discharge privileges.
The CWA also relies on modern technology to curb water pollution. It requires many polluters to implement the best practicable control technology, the best available technology economically achievable, or the best practicable waste treatment technology. The development of such technology for nontoxic polluters is based on a cost-benefit analysis in which the feasibility and expense of the technology is balanced against the expected benefits to the environment.
The CWA was amended in 1977 to address the nation's increasing concern about toxic pollutants. Pursuant to the 1977 amendments, the EPA increased the number of pollutants it deemed toxic from nine to 65, and set effluent limitations for the 21 industries that discharge them. These limitations are based on measures of the danger these pollutants pose to the public health rather than on cost-benefit analyses.
Many states have enacted their own water pollution legislation regulating the discharge of toxic and other pollutants into their streams and lakes.
The mining industry presents persistent water pollution problems for state and federal governments. It has polluted over a thousand miles of streams in Appalachia with acid drainage. In response, the affected state governments now require strip miners to obtain licenses before commencing activity. Many states also require miners to post bonds in an amount sufficient to repair potential damage to surrounding lakes and streams. Similarly, the federal government, under the Mineral Leasing Act, 30 U.S.C.A. § 201 et seq., requires each mining applicant to "submit a plan of construction, operation and rehabilitation" for the affected area, that takes into account the need for "restoration, revegetation and curtailment of erosion."
The commercial timber industry also presents persistent water pollution problems. Tree harvesting, yarding (the collection of felled trees), and road building can all deposit soil sediments into watercourses, thereby reducing the water quality for aquatic life. State governments have offered similar responses to these problems. For instance, clear-cutting (the removal of substantially all the trees from a given area) has been prohibited by most states. Other states have created buffer zones around particularly vulnerable watercourses, and banned unusually harmful activities in certain areas. Enforcement of these water pollution measures has been frustrated by vaguely worded legislation and a scarcity of inspectors in several states.
State and federal water pollution statutes provide one avenue of legal recourse for those harmed by water pollution. The common-law doctrines of Nuisance, Trespass, Negligence, Strict Liability, and riparian ownership provide alternative remedies.
Nuisances can be public or private. Private nuisances interfere with the rights and interests of private citizens, whereas public nuisances interfere with the common rights and interests of the people at large. Both types of nuisance must result from the "unreasonable" activities of a polluter, and inflict "substantial" harm on neighboring landowners. An injury that is minor or inconsequential will not result in liability under common-law nuisance. For example, dumping trace amounts of fertilizer into a stream abutting neighboring property will not amount to a public or private nuisance.
The oil and agricultural industries are frequently involved in state nuisance actions. Oil companies often run afoul of nuisance principles for improperly storing, transporting, and disposing of hazardous materials. Farmers represent a unique class of persons who fall prey to water pollution nuisances almost as often as they create them. Their abundant use of fungicides, herbicides, insecticides, and rodenticides makes them frequent creators of nuisances, and their use of streams, rivers, and groundwater for irrigation systems makes them frequent victims.
Nuisance actions deal primarily with continuing or repetitive injuries. Trespass actions provide relief even when an injury results from a single event. A polluter who spills oil, dumps chemicals, or otherwise contaminates a neighboring water supply on one occasion might avoid liability under nuisance law but not under the law of trespass. Trespass does not require proof of a substantial injury. However, only nominal damages will be awarded to a landowner whose water supply suffers little harm from the trespass of a polluter.
Trespass requires proof that a polluter intentionally or knowingly contaminated a particular course of water. Yet, water contamination often results from unintentional behavior, such as industrial accidents. In such instances, the polluter may be liable under common-law principles of negligence. Negligence occurs when a polluter fails to exercise the degree of care that would be reasonable under the circumstances. Thus, a landowner whose water supply was inadvertently contaminated might bring a successful lawsuit against the polluter for common-law negligence where a lawsuit for nuisance or trespass would fail.
Even when a polluter exercises the utmost diligence to prevent water contamination, an injured landowner may still have recourse under the doctrine of strict liability. Under this doctrine, polluters who engage in "abnormally dangerous" activities are held responsible for any water contamination that results. Courts consider six factors when determining whether a particular activity is abnormally dangerous: the probability that the activity will cause harm to another, the likelihood that the harm will be great, the ability to eliminate the risk by exercising reasonable care, the extent to which the activity is uncommon or unusual, the activity's appropriateness for a particular location, and the activity's value or danger to the community.
The doctrine of strict liability arose out of a national conflict between competing values during the industrial revolution. This conflict pitted those who believed it was necessary to create an environment that promoted commerce against those who believed it was necessary to preserve a healthy and clean environment. For many years, courts were reluctant to impose strict liability on U.S. businesses, out of concern over retarding industrial growth.
Since the early 1970s, courts have placed greater emphasis on preserving a healthy and clean environment. In Cities Service Co. v. State, 312 So. 2d 799 (Fla. App. 1975), the court explained that "though many hazardous activities … are socially desirable, it now seems reasonable that they pay their own way." Cities Service involved a situation in which a dam burst during a phosphate mining operation, releasing a billion gallons of phosphate slime into adjacent waterways, where fish and other aquatic life were killed. The court concluded that this mining activity was abnormally dangerous.
Some activities inherently create abnormally dangerous risks to abutting waterways. In such cases, courts do not employ a Balancing test to determine whether an activity is abnormally dangerous. Instead, they consider these activities to be dangerous in and of themselves. The transportation and storage of high explosives and the operation of oil and gas wells are activities courts have held to create inherent risks of abnormally dangerous proportions.
The doctrine of riparian ownership forms the final prong of common-law recovery. A riparian proprietor is the owner of land abutting a stream of water, and has the right to divert the water for any useful purpose. Some courts define the term useful purpose broadly to include almost any purpose whatsoever, whereas other courts define it more narrowly to include only purposes that are reasonable or profitable.
In any event, downstream riparian proprietors are often placed at a disadvantage because the law protects upstream owners' initial use of the water. For example, an upstream proprietor may construct a dam to appropriate a reasonable amount of water without compensating a downstream proprietor. However, cases involving thermal pollution provide an exception to this rule. For example, downstream owners who use river water to make ice can seek injunctive relief to prevent upstream owners from engaging in any activities that raise the water temperature by even one degree Fahrenheit.
Andreen, William L. 2003. "The Evolution of Water Pollution Control in the United States—State, Local, and Federal Efforts, 1789–1972." Stanford Environmental Law Journal 22 (January).
Findley, Roger W., Daniel A. Farber, and Jody Freeman. 2003. Cases and Materials on Environmental Law. 6th ed. St. Paul, Minn.: West.
Hipfel, Steven J. 2001. "Enforcement of Nonpoint Source Water Pollution Control and Abatement Measures Applicable to Federal Facilities, Activities and Land Management Practices under Federal and State Law." Environmental Lawyer 8 (September).
Houck, Oliver A. 2002. The Clean Water Act TMDL Program: Law, Policy, and Implementation. 2d ed. Washington, D.C.: Environmental Law Institute.
Ryan, Mark A., ed. 2003. The Clean Water Act Handbook. 2d ed. Chicago: Section of Environment, Energy, and Resources, American Bar Association.