Laws existing around the protection and conservation of America’s waterways have existed since the beginning of the industrial revolution. However the enforcement and adaption of these laws has been few and far between. The history of these laws reflects their rather ineffectiveness to help keep clean and maintain our waterways. Popular sentiment has always been against conservation in lieu of other matters that affect the public more noticeably and immediately. Often water protection acts are not proposed for their environmental impact but rather the effects on interstate commerce or health ordinances. We see this through the misallocation of funds and adoption of a non-enforcement policy towards industrial polluters (Freeman, 1972).
Difficulties in enforcement stem from a variety of issues such as the privatization of water, disputes over funding, and the clashing of Federal and State jurisdiction. The first attempts to enforce water regulations in 1899 led to what is now the accepted policy of a “non-enforcement approach” when addressing crimes against water (Franz, 2011). The long-term acceptance of this approach has resulted in the further pollution of waterways with little to no repercussions.
The area of water law is still in its infancy of growth and lacks influence; furthermore, there is a lack of long-term studies of water law and its effects (Christian-Smith, 2016). The future of water law is widely disputed. We can now see the topic gaining popular attention through national news such as the Dakota Access Pipeline or the situation in Flint, Michigan. This discussion will evaluate the history of water legislation and enforcement as means of determining the best course of action for the future of water conservation.
Review: A Brief History of Water Law
The first instances of water regulation and law came during the industrial revolution in 1899. After establishing primitive sewer systems around city centers, the Rivers and Harbors Act was passed. This legislation aimed to combat water pollution, and resulted primarily from the concern for keeping waters open to navigation and clear of waste that could pose a hazard. The act prohibited the discharge of any matter other than liquid flowing from streets and sewers. It was then established that water pollution and regulation was a state and local issue and remained unchecked for many decades. The next real push for regulation came shortly after World War II. The industrial boom along water ways created a need for preserving clean drinking water. Many factories that produced goods for the war were polluting river ways with byproduct. Almost fifty years after the first water pollution act, in 1948 the Water Pollution Control Act was passed. This bill modestly pushed environmentalism by funding grants to agencies to investigate pollution and create wastewater treatment plants (Freeman, 1972).
Through the next couple decades the progress towards clean water would be a slow, incremental one. In 1956 the Federal Water Pollution Control Act (FWPCA) aimed to control pollutants further. Continuing in 1965, the Water Quality Act passed, giving federal government more oversight in the matter. Eventually the FWPCA would be amended multiple times from 1977-1987 and is now referred to as the Clean Water Act. The CWA addresses a wide variety of water issues including, but not limited to, creating specified technological controls to diminish impacts from waste streams, requiring states to identify areas affected by pollution sources, addressing ocean dumping, mandating various land use planning processes, dividing pollutants into various classes (conventional, nonconventional, and toxic), and setting standards (FWPCA, SEC 101, 2002). Ultimately these pieces of legislation are great in theory however have been rather ineffective in the short term.
Discussion: Instances of Water Crime Negligence
Where issues surrounding water health and quality arise is in the failure to implement and enforce regulatory measures effectively. Although the Clean Water Act is an exemplary piece of legislation that took decades of amending and ratifying to become the far-encompassing act it is today, it lacks the proper funding and power to effectively evoke large scale change. Water pollution control policies are enacted in two parts: the first being the piece of legislation, the second is establishing procedures for enforcement through police power of the state and, ultimately, the courts (Franz, 2011). In both parts failure can occur. After the legislative process, grants and funds need to be dispersed. It’s not uncommon that money allocated to water protection measures do not make it to their designated municipalities and are diverted for “emergency” reasons. Additionally, allotted money can be provided disproportionally. The largest cities containing 25% of the total urban population received 6% of total federal grant money; whereas cities with populations of less than 10,000 which make up 16% of total population have received 40% of federal grant money (Freeman, 1972). There is still the prevailing argument from 1899 that water and water regulation is a states’ right issue and therefore should not be regulated by the federal government. The pushback caused by this resulted in a slow adaption filled with environmental compromises to appease political ideologies.
The second aspect, enforcement, falls apart due to a culture of indifference that can be traced back to the 1899 Rivers and Harbors Act (also known as the Refuse Act). The exception to this bill was that you could pollute waters if you obtained a permit from the U.S. Army Corps of Engineers – 40,000 industrial dischargers did making the act essentially symbolic. As mentioned previously after this piece of legislation, the consensus was to leave water regulation up to the states. This marked the beginning of a culture of non-enforcement. By 1970, the justice department was receiving so many cases of industrial polluters that they dismissed nearly all of them and did not bring charges against those with “normal plant” discharge.
The non-enforcement position has resulted in multiple, very environmentally damaging events in which no one is charged as being responsible for. One example of this is the BP Oil Spill that occurred in 2010 in which 11 workers were killed and 4.9 billion barrels of oil was spilled into the Gulf of Mexico. This was due to the negligence of higher-ups who failed to investigate mechanical issues with the rig. Although there were two convictions for the manslaughter of the rig workers, all were acquitted of their crimes against the environment. This was the largest recorded oil spill in history and resulted in numerous environmental impacts that still affect the Gulf seven years later.
In more recent history, water regulation negligence can be seen in the ongoing water crisis in Flint, Michigan. By not following federal law, the state Department of Environmental Quality was not treating the Flint river with an anti-corrosive agent resulting in high levels of lead in the drinking water. Flint residents have gone nearly two years without safe, clean drinking water and still the state government is not held responsible for their contribution to the situation. The contaminated water has results in impaired cognition, behavioral disorders, hearing problems and delayed puberty in youth residents.
Lastly there is the negligence involved in the planning and creation of the North Dakota Access Pipeline. The company operating and building the pipeline, Sunoco Logistics, has been hasty in the process of approving each stage of development – ignoring both environmental groups, regulations, and treaties with the Standing Rock Sioux Reservation. Sunoco has a history of oil leaks and spills and many residents are concerned that the pipeline will contaminate the Missouri River. Regardless of their violations of federal environmental regulations the pipeline has continued to be developed and is set for operation within the next few years.
Conclusion: The Present and Future of Water Regulation and Enforcement
The truth of the matter is that the public cares deeply about water – this is consistently shown through public opinion polls and voting records, yet water regulation is routinely ignored by members of Congress and the White House (Christian-Smith, 2016). Waterways and infrastructure have been neglected through the years which can only lead to more situations like Flint, Michigan in the United States. By not holding large corporations accountable for their crimes against the environment, loopholes and continued pollution are allowed to continue. In order for regulation to be effective and efficient agencies like the EPA need to have not only discretionary powers but enforcement as well.
Unfortunately, the future of water protections and conservation is not looking too bright. With a current administration that sees the EPA as a nuisance and the North Dakota Access Pipeline as an economic stimulus, the current situation can only worsen with time. However, water regulation and laws are still in their infancy and the long-term effects of which are still not concretely known. Additionally, the public attention brought to Flint and NAPL has resulted in an influx of contributions to environmental agencies and a louder cry for environmental change. If the public can ban together to reverse the culture of non-enforcement, then regulations will be enforced as intended and those who violate them will be prosecuted to the highest extent of the law.