Our Clean Water Stories
In a Fall 2022 Newsletter the Association invited our Members to submit short stories about their experiences in working for Clean Water such as regulations, enforcement actions, initiatives, and the like. Below are submissions we have received to date. We would welcome additional stories! Submit yours to firstname.lastname@example.org.
The Rivers and Harbors Act of 1899
by Jim Seif*
How many members of the EPA Alumni Association remember the Rivers and Harbors Act of 1899? None of us is that old, I guess, but what about the part of it – called the “Refuse Act” -- that made a bit of history when it was dredged up (pun intended ) in 1972?
There was an unusual delivery to the loading dock at the U S Post Office and Courthouse in Pittsburgh one day in 1971. It was about 500 mason jars full of water, some almost clear, some full of muck and sediment. With each jar came a full chemical description of its contents, and a map showing were it had been collected along the Ohio and Monongahela Rivers. More precisely, the map showed from which outfalls of the US Steel Corporation, Jones and Laughlin Steel, Wheeling Pittsburgh Steel and the Pennsylvania Industrial Chemical Corp. (PICCO, later Hercules,) it had been collected. All of this was addressed to US Attorney Dick Thornburgh and accompanied by a demand that the Department of Justice take action under the Rivers and Harbors act of 1899.
The samples had been gathered by two Penn State McKeesport Campus faculty members, and tested at the Allegheny County Testing Lab. Maps, chains of custody and testing methods were included. The collecting expeditions were risky; the canoe was small and leaky, the barge traffic was heavy and not at all used to seeing recreation boats on a polluted industrial river, and the outfalls were running at full throttle, (and some were about 160 degrees F.) They really did have to use the proverbial “ten-foot pole” at times.
The two professors, David Nixon and John Zavodni, were not merely interested in the bounty provision of the law (a common feature of legislation in the late 19th century,) but they wanted to make a point: the rivers were a dump. They were also pretty sure the Nixon Administration would not be keen to use an obscure old Corps of Engineers law to beat up American steel and chemical businesses. But if Justice declined to act, the two intrepid canoers were positioned to make a political statement as well.
Some history: Congress passed annual Rivers and Harbors Acts in the late 19th century, to make appropriations to the Corps of Engineers, to regulate construction in navigable waters, and to protect navigable channels. In 1899, for reasons not deducible from the legislative history, they added language that came to be called the “Refuse Act.” It simply prohibited ANY deposit of ANY substance (“refuse”) in the water, unless the Corps issued a permit. Navigability was irrelevant.
The intrepid pollution hunters were surprised by Thornburgh, who said publicly he would give their allegations serious consideration. Then he told me (the in-house tree-hugger,) to make whatever cases I could. We ultimately developed 94 criminal counts against the four companies, most of them against the three large steel companies, but also four counts against (PICCO.) We selected the most toxic samples, or those with high concentrations of things like salt. On the permit element, it was easy to establish that none of the defendants had, or had ever asked for, permits to pour pollutants, (“refuse”) into the rivers. Nobody at the Corps of Engineers had heard of the law, let alone a permit program to enforce it. The law’s legislative history, of course, was about protecting navigable channels from dumpers, and probably never had anything to do with what was in those Mason jars.But its clear language was that nothing of any sort could be deposited into navigable waters.
The steel companies used their heavy-duty corporate lawyers, with a predictable avalanche of motions, briefs and requests for more time. PICCO, however retained an experienced criminal attorney, and his first move was to say, “Find me a jury, and they will laugh this out of court.”There was in fact some laughter in court, as when the defense tried to show that some of the toxins were also found in ordinary household stuff, like Pepto Bismol, which could have come from homes above the chemical plant. Thornburgh asked the Judge for a recess so that those poor afflicted folks could be notified that they were overdosing. The Defense closed with an argument that World War II could not have been won with this law on the books, but Thornburgh (and the Judge) reminded the jury that the law was in fact on the books, and so the prosecution and jury had a duty to enforce it.
A Western Pennsylvania jury might have been sympathetic to local industries, but after an hour of deliberation, they were unanimously against pollution as well. Opinion on the old Pittsburgh adage, “Smoke is Progress” was turning.
The Judge pronounced the maximum fine, allocated the bounty awards to the canoeists, and we went to the Third Circuit. The other three defendants moved successfully to delay trials until the Circuit spoke.
Was the prosecution fair? Defendants could not have gotten any permit from a non-existent program, and they were conducting business as they had for a century. But they were laying waste to the rivers and land. Key to Thornburgh was the importance of establishing the very bedrock principle of modern water law: You don’t have any RIGHT to put ANYTHING in the water. The rest of us, the body politic, if you will, must give permission and can impose conditions.
The Circuit Court reversed in part, but the whole issue was mooted by the passage in mid-October of 1972 of the Federal Water Pollution Control Act 0f 1972. By then the Corps of Engineers had hastily constructed a permit program but when I joined the Legal Branch of the EPA’s Region 3 office in Philadelphia in 1973, I encountered dozens of boxes of permit applications that the Corps had delivered to EPA. I didn’t inquire, but I expect the Corps was only too happy to say goodbye to the Permit Program the Never Was. Eventually these were converted into NPDES permit applications.After that came fifty years of important legal, scientific and administrative history, and lots of hard work at EPA, in the states and by the private sector, with results unimaginable in 1899 -- or even 1972.
*Mr. Seif began his career as an Assistant Us Attorney in Pittsburgh, moved to EPA Region 3 in the early Seventies; and was later Regional Administrator (1985-89.) In 1995 he became Secretary of Environmental Protection in Pennsylvania.
Dick Thornburgh was US Attorney in Pittsburgh, and later a two-term Governor of Pennsylvania and Attorney General of the United States. He died in 2020. For a further account of his Refuse Act prosecution, see his autobiography, “Where The Evidence Leads.”]
My Experience with the Clean Water Act
by Jeff Goodman
Walter Groszyk hired me in June of 1974 to work for him in the Water Strategy Branch of Mark Pisano’s Water Planning Division. Walter had an encyclopedic knowledge of the Federal Water Pollution Control Act (referred to commonly as the Clean water Act). Someone could recite a phrase from the Act and Walter would be able to cite the section of the Act it came from. He was not in the office my first week there but had left instructions for me to read the text of the Act and the recently published Water Quality Strategy Paper.
The mission of our branch was to develop a comprehensive strategy for implementing the Act. Given the complexities of the Act and its overlapping authorities, developing the Water Quality Strategy was never wanting for challenges. My colleagues in the branch were Diane Olsson, Dave Ziegler, Linda Eichmiller, Ann Gilbert, and George Fleming. Walter and Mark were my first mentors at EPA; they taught me many valuable lessons about government and public service.
My first assignment was working on guidelines for implementing Section 316(a) of the Act, which provided for a variance from complying with thermal pollution requirements of effluent guidelines for steam electric power plants. I worked with John Christian, who was in another branch of our division. John and I were the only staff with biology backgrounds and our collaboration led to a life-long friendship.
After three years in the Water Planning Division, I moved to the newly formed Office of Analysis and Evaluation as Chief of the Water Strategy Section under Swep Davis and Charlie Cook. Our section included Steve Heare, John Harris, and Mary Moorcones. In addition to the Water Strategy, our group had responsibility for staffing the Deputy Assistant Administrator-level task force charged with developing EPA positions on amendments to the Clean Water Act. As part of this effort, Assistant Administrator for Water Tom Jorling sent me to assist Senate Environment Committee staff with mark-up sessions for the Clean Water Act of 1977.
I later went on to work on Tom Jorling’s immediate staff to develop the Superfund legislative proposal, but that is another story.
Shooting Ducks from a USDI Airplane and Other Challenges in Alaska
By: Warren McFall, Retired Charter Member, EPA
“OK”, Ray hollered over the noise of the Pratt-Whitney radial engine, “I’ll be coming in just above the flight of ducks and banking left!”. With my feet braced on either side of the Beaver float plane’s rear door less opening, I fired my shotgun twice before I realized that my normal lead in front of the ducks was wrong. We were going faster that they were, so I changed my lead behind the ducks for the next 3 shots. The flight was tightly bunched, so 5 ducks fell into Cook Inlet near the mudflats across from Anchorage.
“Good shooting, I’m going to set down. Get Jock ready for retriever duty!” With that, Ray throttled back and set the Beaver gently down on the Inlet and taxied over closer to the ducks. I stepped out of the plane and stood on the floats, sending my Labrador Retriever for the ducks.
We were on a mission to gather ducks so that the US Fish and Wildlife (FWS) scientists could determine whether a recent oil spill had impacted the duck population that gathers in the tidal zone of the Inlet. As it turned out, those ducks were clean and unaffected by the oil sheen that had been reported nearby and they tasted pretty good, too.
That incident was one of several adventures I experienced in the early years of my career while working for the US Department of the Interior’s, Federal Water Quality Administration (FWQA). Ray and I were assigned to monitor the rapidly developing oil industry in their development and production from the several oil platforms already established in Cook Inlet.
Ray Morris was a biologist/pilot for FWS that had recently transferred to FWQA for the assignment. I was an engineer in my second year of employment since graduation. I had transferred down from the Alaska Water Lab in Fairbanks because Ray needed some help in dealing with the problems that the industry seemed to be having. The oil platforms were designed with open grating on the drilling decks, much as they were in the Gulf of Mexico. The drilling muds used to lubricate the bits in the drilling process were allowed to drain through the deck into the Inlet and at times had significant amounts of oil resulting in sheens on the inlet.
In those early days before FWQA became part of the amalgamation and formation of EPA in 1970, there was very limited authority to deal with this type of problem. During routine overflights of the platforms, Ray took many photos of the oil sheens. A young reporter with the Anchorage Daily Times, Dennis Cowles, interviewed Ray and gained access to some of the photographs. The resulting articles and pictures stirred things up in the Anchorage area. The resulting sentiment was clear. Local citizens didn’t want their waters messed up with oil tainted waste.
The industry’s response was one of cooperation and a willingness to work towards elimination of the problem. Bill Hopkins, the local official of the Alaska Oil and Gas Association (AOGA) helped us get in touch with the various oil companies. We were soon invited onto the platforms where we discussed possible changes to the platforms to prevent overboard discharge of pollutants. The industry, being relatively new to Alaska, wanted to develop a very positive image. Consequently, they made significant modifications to the platforms decking and waste handling. They developed standard procedures which resulted in all oil contaminated wastes being either treated or sent to shore in the pipelines that were transporting oil to onshore facilities.
Another example of a non-regulatory approach was dealing with the seafood waste problems in Kodiak. With our peers from Portland and the Alaska Water Lab, it was well documented that the wholesale dumping of untreated king crab and salmon waste directly into the harbor had caused serious problems and was in violation of the Federal Water Quality Standards. Layers of organic wastes were decomposing using up the available oxygen and giving off methane and hydrogen sulfide gases. The gasification routinely caused mats of partially decomposed waste to float to the surface.
In those days, enforcement of Water Quality Standards was mostly a non-exercised State expectation. The FWQA and early EPA standard technique was to convene a public hearing to hopefully stimulate correction of such problems. The Kodiak hearing was conducted by an administrative law judge and the evidence and reports were presented and thoroughly discussed. It was clearly shown that the water quality standards were being exceeded to the detriment of the harbor aquatic organisms. Witnesses were called and industry representatives that had been subpoenaed were questioned on the matter. The local TV station interviewed our newly appointed EPA director, Gene Dickason, and the airing of the whole process served to motivate change.
Similar to the reaction by the oil industry, the seafood processors became more cooperative and more willing to discuss possible solutions. One of the solutions considered was collection of crab shells from the processing line and converting them into a Chitin by product. Grinding the remaining waste and pumping it further off shore was another concept discussed. Once EPA matured further, regulations and effluent guidelines were developed and implemented. The new and growing NPDES program was passed into the capable hands of the engineer that replaced me, Bill Lamoreaux.I had heard that EPA was looking for an engineer to work with the State of Idaho on the Construction Grant program. The prospect of warmer winters and lots of fishing and hunting opportunities helped convince me to apply. My wife, Marge and I and our soon-to-be-born first child arrived in Boise in January 1973. We are still here, but we do miss Alaska and our friends.
An OGC Reflection on Launching the Clean Water Act
By Ridge Hall
The mid-1970’s was a fabulous time to be at EPA, especially if you were, as I was, Associate General Counsel for Water. We had a brand new law to implement, an inspiring Administrator in Russell Train, plus bright and energetic staff in the offices of Water, Research and Development, Planning and Management, Toxic Substances, and Enforcement. We also had a general public that was fed up with severely polluted water that in many areas was not drinkable, fishable or even swimmable, and wanted that mess cleaned up.
The comprehensive Federal Water Pollution Control Act as it was then known, until Congress renamed it the Clean Water Act in 1977, was remarkably well designed, with one big exception. It upgraded the nation’s public sewer treatment works to “secondary treatment” through a new “construction grants” program – the biggest public works program in the nation’s history. It created a nationwide permit program requiring all point source discharges to have a permit with effluent limitations. Perhaps most ambitiously, it transformed our strategy for protecting water quality from ineffective and uneven local water quality standards to national, uniform, technology-based standards, which would be applied to each discharger via the permits.
Right from the start questions about legal interpretation poured into the Office of General Counsel (OGC) from the program offices, the Regions and the States. We responded quickly, often making it up on the fly. We began issuing “Opinions of the General Counsel”, which were widely distributed and eventually published by BNA.
The one big flaw was ironically in Congress’ most urgent priority: the provisions for regulating toxics in Section 307(a). That section specified that within 90 days of enactment of the law EPA must publish a list of toxic pollutants to be regulated, based on the toxicity, mobility, persistence in the environment and known or likely effects on human and ecological receptors. Within 180 days after that, or any update, EPA was to propose “toxic pollutant effluent standards” for each pollutant which provided “an ample margin of safety”, conduct trial-type hearings with live witnesses and cross-examination, and then finalize the standards within 6 months after proposal. Every affected industry had just one year to get into compliance. There was no authority to consider technical feasibility, costs, or overall economic impacts.
Section 307(a) proved to be unworkable. EPA lacked a data base on which industries were discharging which toxic pollutants in what amounts, or what control technology might be available to reduce those discharges. Analytical capabilities did not exist to measure many of them at the low parts per billion level that initial research indicated would be required. The requirement that the standards be met within one year gave industries o time to develop and install the needed control technology. Finally, requiring the standards to be developed on a pollutant-by-pollutant basis instead of an industry-by-industry basis required EPA to repeatedly visit facilities to sample their effluent as each pollutant was listed. EPA proposed an initial list of 9 toxic pollutants in 1973, held hearings on them in 1974, and concluded that if it were to set standards at the low levels needed to provide “an ample margin of safety”, this would shout down major sectors of the U.S. economy due to a widespread inability to comply – probably not a result Congress intended. The effort was abandoned.
When I arrived at EPA in May, 1975, the then General Counsel, Bob Zener, told me to “fix this problem”. By then environmental groups had sued EPA to force us to publish and regulate a long list of pollutants that they claimed were toxic. Faced with four such lawsuits and an unworkable statute, we set about devising an alternative strategy. Under the leadership of Chris Beck, Deputy Assistant Administrator for Water Planning and Standards, we set up a multi-office work group which brought together the best and brightest of EPA’s experts on toxicity, technology, exposure and risk-assessment, cost analysis and the law. We decided that if toxics were to be effectively regulated we needed a legal framework that allowed for consideration of technical feasibility and costs, and a longer time for compliance than the one-year requirement of Section 307(a). We chose the “best available technology” framework of sections 301 and 304, which allowed consideration of costs and technology and had a 1983 deadline.
Before we could implement this program, which would require a massive redirection of EPA’s resources, we needed to settle the lawsuits so that a court would not order us to do something different from the BAT approach. The environmental groups were led by Gus Speth of NRDC, who would later become Chair of the Council on Environmental Quality under President Carter. They wanted regulation of a large number of pollutants using the fast timetable of 307(a). We said that was unworkable, and if they really wanted to get toxics effectively regulated nationally, BAT was the only effective tool to accomplish that. To his credit Gus agreed, though he pressed us hard to regulate a lot of pollutants from a lot of industries. We agreed that whatever we could agree on in this regard would need to be embodied in a consent decree approved by a federal district court.
Which toxics should be regulated? We set up a task force led by John Kolojeski, a lawyer with an extensive scientific background, to review all the data we could find on which industries discharged which metals, organics and other toxic substances. They came up with a list of 65 toxics that were being discharged by many major industrial sectors.
Which industries should EPA commit to regulate? By then EPA had issued effluent limitations regulations for some 43 industrial sectors. Gud wanted all of them regulated for toxics, but EPA lacked the resources to do that. We agreed to regulate the 21 industries where the greatest volumes of toxics were being discharged. Specifically, we agreed to set effluent limitations regulations, new source performance standards and pretreatment standards for toxic pollutants on our list of 65 for all 21 industries over a 3-year timetable.
The resulting settlement agreement was approved by Judge Thomas Flannery of the U.S. District Court for the District of Columbia on June 9, 1976, after extensive public comment, thereby settling the pending lawsuits and setting the course for EPA’s regulation of toxic pollutants under the Clean Water Act for the forseeable future. Sometimes referred to as the “Flannery Decree” or the “BAT/Toxics Settlement”, the deadlines were extended several times, but the Agency got the job done. To finance the gathering of current effluent data from each of the 21 industries, with OMB’s approval we secured a special $21 million in supplemental funding from Congress. Because some of the pollutants on our list of 65 were in fact families of pollutants, like “chromium and compounds” or “cyanides”, we broke out the most toxic members of those families to create a new list of 129 “priority pollutants” on which regulatory attention was focused. Both lists are still used by EPA today.
We realized that by regulating toxics under the BAT provisions instead of Section 307(a) we had pushed the boundaries of the law. We decided to ask Congress to amend Section 307(a) to make clear that EPA was on solid ground using BAT as the main tool to regulate toxics going forward. So Russ Train, Chris beck and I met with the Republican and Democratic members of the Senate Environment and Public Works Committee and the House Commerce on Public Works and Transportation to describe the problem we had faced, how we had addressed it, and the need for clarifying statutory language. Their reaction was “The approach you took makes sense. Just give us the language you need and we’ll amend the law.” At Russ’ and Chris’ direction I drafted some amendments to Sections 307 and 301(b) and Congress passed them as part of the Clean Water Act Amendments of 1977.
Interestingly Congress liked our industry-by-industry approach to the regulation of toxics that they adopted the same framework for regulating airborne toxics in the Clean Air Act Amendments of 1990. After Congress enacted our requested amendments in 1977 I thought to myself, “Isn’t it wonderful the way Congress works together to get things done.” How naïve that seems 45 years later.
A TRIBUTE TO USEPA REGION 3 EMPLOYEES PROTECTING WATER QUALITY FOR 50 YEARS!
By: Stan Laskowski*
In the early 1970s the waters of the Middle Atlantic States were polluted to the extent that swimming and fishing were often very limited. Fish kills were not uncommon and migratory fish were constrained from reaching their spawning areas due to lack of dissolved oxygen cause by excessive pollution. Major industrial and municipal wastewater treatment plants often only had the most basic treatment and, in some cases, the sludge from these plants was dumped in the Atlantic Ocean. The public found these conditions to be unacceptable, and environmental protection often ranked as one of the top issues in public opinion polls. The public made their dissatisfaction known in various ways, including public demonstrations. Our political leaders responded by creating the US Environmental Protection Agency [EPA] in late 1970, and in 1972 passed the Federal Water Pollution Control Act, giving EPA and its state partners broad powers to address these water pollution problems.
This article is a “shout out” to the hundreds of Region 3 employees who have protected the waters of the Middle Atlantic States during the past 50 years since the passage of the 1972 law. These employees came from many disciplines [eg, engineering/science, law, administration, public relations] and were employed in numerous roles in Region 3. Included in the joint team efforts to protect water quality were inspectors, lab personnel, quality assurance experts, grant writers, permits and enforcement case developers, lawyers for negotiations, stream monitoring and modeling experts, and administrative support staff.
The water quality problems that the Region 3 staff have addressed over the years have been extremely diverse. Some examples of these problems include protecting the nation’s largest estuary, the Chesapeake Bay, controlling acid drainage from coal mines, creatively processing construction grants to wastewater treatment plants, protecting wetlands, responding to emergencies, ending ocean dumping, ensuring environmental justice, finding ways to predict emerging water quality problems and developing methods to measure water quality progress.
Of course, EPA Region 3 had plenty of partners in this quest---state agencies, EPA Headquarters, other federal agencies, consultants, the regulated community, and leadership from politicians at all levels. Through much teamwork and hard work, these Region 3 employees and their partners have created an environmental legacy of which they can be very proud. The public can enjoy cleaner water for drinking, fishing, and contact recreation as a result of their fine efforts. Current and future EPA employees will build on this legacy as they maintain water improvements and address emerging and future challenges. I wish them well.
*Stan Laskowski has had a very fulfilling 54 year career in the water field. A sampling of his roles: hydrologist for the USGS [1968-1972], NPDES permits/enforcement [1972-1980], Superfund Director [1980-1982], Deputy Regional Administrator [1982-1997], lecturer/advisor at the University of Pennsylvania [2001-2017], Global Water Alliance founder and current VP [2006-present].
Mark Sanford and TMDLs
By: Bob Wayland
This story was originally posted on June 25, 2009,
I had an encounter with then-Congresman Mark Sandford in 1998 or ‘99 which was both amusing and slightly weird. EPA had developed a proposed rule clarifying aspects of the section 303(d) of the Clean Water Act. This provision had been largely neglected by EPA and the States and many citizen suits had been filed to compel us to act. The proposed rule was very controversial and the American Forest and Paper Association was particularly aggressive in trying to persuade EPA to modify it or, better still, drop it in anticipation of a new perspective after President Clinton left office.
AFPA went beyond the usual letter and telephone campaign. They energized members of Congress to hold “field hearings” in their Districts to rally grass-roots opposition. There were 6-10 of these “hearings,” none of which was conducted under the auspices of any legislative committee of jurisdiction. Some members of Congress brought us to their offices for arm twisting instead. I drew the straw to meet with Mark Sanford. Also attending the meeting with him were a representative of South Carolina’s state forestry department and Mitch Dubensky, the AF&PA environmental staffer. I had already heard about the Congressman sleeping on a cot in his office (to save the taxpayers from funding a DC-are residence for him) and that he was very conservative.
Sanford began the meeting by saying that his years at UVA (where he earned an MBA) had made him a devotee of the Socratic method so he wanted to ask a series of questions about this EPA rule his constituents were upset about (could AF&PA or one of its SC members have drafted these questions?). The questions were premised on a number of mis-representations of the proposal, the state of implementation of TMDL provisions and left out the important role of litigation, in motivating the rulemaking, etc., etc. I patiently clarified these things and went on to praise SC’s rather advanced, quasi-regulatory environmental requirements for management practices to protect water quality during timber harvest and planting and drew the state official into a description of the States’ program in which he expressed pride in their efforts and allowed that some timbering operations had polluted Palmetto State waters and needed oversight and direction. About 20 minutes into the meeting, Sanford turned to Dubensky and said, “Hey, this guy’s kicking your a*s.” The meeting broke up shortly thereafter!
I’m working on a fairly detailed account of the genesis of the Perciasepe/Fox/Browner/Clinton TMDL rule and its aftermath to be posted on this site in a few weeks. The Sanford encounter would not have been part of the story but in light of his place in the headlines and references to his reputation as a maverick with some erratic background I couldn’t resist sharing this vignette.
Controversy in Congress Over the Clean Water 404 Program
By: Bob Wayland
originally posted June 05, 2009, 3:56 PM
In the late 1980s-1990s there was a major effort in Congress to curtail Clean Water Act protections of wetlands and other waters from discharges of dredged or fill material. Louisiana and Alaska legislators led this effort and Louisiana organizations were prominent in lobbying for them. At the same time, Louisiana was, and continues to be, losing ~24 square miles of coastal wetlands annually mostly as an indirect result of past oil and gas development and flood control and navigation projects. Paradoxically, while working to weaken Federal wetlands protection, Louisiana interests were also seeking Federal funds to protect or restore swamps and marshes which provide storm protection for population centers and oil and gas infrastructure as well as habitat for waterfowl, fish, and shellfish.
EPA's Expanded Role in Regulating Discharges of Dredged or Fill Material
Prior to the 1972 Federal Water Pollution Control Amendments, popularly known as the Clean Water Act, discharges of dredged or fill material into the Nation's waters, including wetlands, were regulated solely by the Corps of Engineers. Section 404 of the Clean Water Act provided for joint EPA/Corps implementation of the "wetlands permit program." Because this permit program focuses on the regulation of private property, it was controversial from the day of its enactment. Under the '72 Act, the Corps continued to issue or deny permits for such discharges, but subject to environmental "guidelines" issued by EPA and to "veto" by EPA. The legislation "defined" navigable waters as "waters of the United States" and the legislative history encouraged EPA and the Corps to give this definition a broad geographic interpretation. Initially, the Corps was a reluctant regulator and issued an incendiary press release about the effects of the '72 Act which many felt was intended to propt Congress to scale the program back. In 1977, after much debate, and considerable support for rolling back the geographic scope of the program, Congress left the definition of navigable waters unchanged but added provisions to authorize general permits, to allow states to "assume" portions of the Federal 404 program if EPA approves and provided exemptions from the permit requirement for normal agricultural, ranching and silvicultural practices.
"No Net Loss" & Increased Emphasis on Wetlands Protection
In 1987, Lee Thomas asked the Conservation Foundation to convene a dialogue on improved protection of wetlands. A bi-partisan, diverse group of 20 stakeholders produced a set of 100+ recommendations in late 1988, including advocating a short-term goal of no overall net loss of the nations remaining wetlands (about 1/2 of what was thought to be present when European coloni zation began) and a long term goal of increasing the quantity and quality of the nation's wetlands resources. In addition, Lee Thomas took administrative action to strengthen EPA's program, establishing a Wetlands Office in the Office of Water (responsibility had been split between OW and the Office of FederalActivities). He also vetoed the Corps permit for the Attleboro shopping mall project in New England.
After George H. W. Bush proclaimed that he would be an environmental President and embraced a "no net loss" of wetlands goal, Army Assistant Secretary Robert Page, and his environmental assistant, Dave Barrows, set a much greener tone for the Corps. The Corps and EPA adopted a memorandum of agreement on mitigation, which clearly stated a preference for first avoiding wetland impacts, then minimizing them, and finally offsetting unavoidable impacts by enhancing or creating wetlands. Bill Reilly vetoed the Two Forks Water supply project in Colorado and Virginia's Ware Creek reservoir. EPA raised issues about a project in Louisiana which proponents said would improve waterfowl habitat (and hunting) but NOAA and the Agency asserted would have offsetting deleterious impacts on fish and crustaceans. But the adoption of a new interagency wetlands delineation manual, including a new plant list, and a recapture of "prior converted croplands" proved very controversial and was believed by critics and supporters of the program to substantially increase the reach of the program. In addition, word of an Office of Enforcement Wetlands Initiative surfaced in the press and was attacked by property rights groups. Bill Reilly told the Chicago Tribune that the initiative would not go forward, while reiterating the importance of wetlands and EPA's intent to protect them.
Legislative Attacks on EPA and Sec. 404
The National Wetlands Coalition (NWC) was formed in 1989 to advocate "reform" of Federal wetlands programs. The NWC was comprised of oil and gas firms, timber companies, the American Farm Bureau Federation, some municipalities, and the Louisiana-based Audubon Nature Institute (not affiliated with the National Audubon Society). Legislation incorporating the NWC objectives, HR 1330, was introduced to "strengthen wetlands protection" by bringing additional wetlands disturbing activities under jurisdiction while restricting the Clean Water Act's geographic reach and removing EPA from the 404 program. Congressman Jimmy Hayes of Louisiana was a primary sponsor of the bill and outspoken advocate -- coincidentally (!?) Hayes college roommate, Robert Szabo, was the Executive Director of the Wetlands Coalition. I well remember Louisiana Congressman Billy Tauzin explaining to the Merchant Marine Committee that he was an expert on wetlands because "Half of Louisiana is underwater and the other half is under indictment." (Cong. Barney Frank asked Tauzin which half he was from!) Tauzin repeated this quip years
later to Administrator Browner and I only barely resisted the temptation to beat him to his punchline.
NWC, the Farm Bureau, and others circulated a number of horror stories about the 404 program and other Federal wetlands programs -- several of which wereunverifiable, grossly exaggerated, or apocraphal. Hearings on HR 1330 and the horror stories were conducted by the several sub-committees of House Committees on Government Affairs, Public Works and Transportation, Merchant Marine and Fisheries, Agriculture, and Senate Environment and Public Works and Agriculture. In most instances, EPA and Army developed and submitted joint testimony rebutting horror stories, and describing the importance of wetlands. At most of these hearings, I represented the Agency and Michael Davis represented Army (he had replaced Barrows before the Interagency Wetlands Plan was developed). Greg Peck, Suzanne Schwartz, John Meagher, Will Garvey, Cliff Rader, and many others in the Wetlands Division, in coordination with Regional staff, provided super support for our testimony and in tracking down facts about the horror stories.
Leighton Stewart, CEO of the Louisiana Land and Exploration Company, an oil and gas firm, served as President of the NWC. Administrator Bill Reilly was favorably impressed with Stewart's support of EPA Clean Air Act and Climate Change activities -- natural gas being a "clean fuel" and Reilly entertained a presentation from Stewart on his wetlands concerns. This presentation included concern about the subsidence and erosion of Louisiana coastal marshes, which could result in private lands underlain by oil and gas resources reverting to state ownership as submerged lands. The involvement of Louisiana political interests in this range of issues prompted us (EPA) to decide to engage more actively in Louisiana by elevating our participation in an interagency restoration task force, established pursuant to the 1990 Coastal Wetlands Planning Protection and Restoration Act (Breaux Act) and stationing a staff member in Baton Rouge rather than trying to participate from Region 6 in Dallas.
The Interagency Wetlands Plan and Louisiana Initiatives
Following the election of William Jefferson Clinton as President, EPA's elevation to Cabinet status became a priority. In the early debates on Cabinet status legislation, Louisiana Sen. Bennett Johnson and others argued that the dual administration of the 404 program was plagued by waste, delay and disagreement between EPA and he Corps. EPA and the White House promised Louisiana Sen. Breaux a full interagency review of wetlands programs under White House auspices in an effort to defuse the issue and keep it from becoming a major obstacle to Cabinet status for EPA. An interagency action plan was developed between June and August of 1993. Its 50 specific outputs which placed additional emphasis on voluntary conservation, support for state programs, use of mitigation banking, placing projects in a watershed context, etc., and committing to no legislative or regulatory roll-back in wetlands protection. (see: http://www.wetlands.com/fed/aug93wet.htm) EPA staff did a superb job in reaching consensus with colleagues from the Corps, Fish and Wildlife, Agriculture, NOAA, and other agencies on a very credible and broad set of actions -- the efforts of Greg Peck and Cliff Rader deserve special mention.
Hearings continued and the EPA Army joint testimony incorporated the key features of the Interagency Plan, and staff in OWOW mentioned above, along with many others worked with great skill in collaboration with staff of several other agencies to develop the dozens of deliverables the Interagency Plan had promised. These actions dampened much of the grass roots angst about wetlands protection and were effective in countering the efforts of the NWC. The attacks lost additional momentum when the zeal of key Congressional players seemed to wane. Jimmy Hayes and Billy Tauzin both switched parties, and Hayes left Congress in 1997 after he ran unsuccessfully for Governor in 1996. After the Merchant Marine and Fisheries Committee was disbanded in a Congressional reorganization, Congressman Tauzin did not sit on a Committee which had jurisdiction over any aspect of Federal wetlands policy. The National Wetlands Coalition ceased operations in 2004 and the law firm biography of Bob Szabo does not mention wetlands as a practice area or the NWC. To some degree, wetlands protection was pushed out of the Congressional hotseat by the growing controversy over the TMDL (total maximum daily loads) program, which EPA was forced to become more aggressive about as a result of a bevy of citizen suits.
Bob Perciasepe and Carol Browner worked for Clean Water Act reauthorization after the Cabinet elevation initiative fizzled. However, as Congress began grappling with EPA's proposals, wetlands protection was of several areas where it appeared the risk of losing authority could outweigh the benefit of strengthening amendments in other areas. Rather than continue to pursue reauthorization, the Agency initiated a successful interagency effort to strengthen programs under the 72 Act -- The Clean Water Action Plan -- and won significant resources to implement it.
Regrettably, after years of successfully protecting EPA's authority and the scope of Clean Water Act from assaults in Congress, several cases decided in recent years by Courts of Appeal and the US Supreme Court have brought about limitations on geographic jurisdiction. In Rapanos v. United States the Bush Administration supported EPA and Army and sided with most states in arguing with only partial success that the Clean Water Act is properly interpreted to regulate non-navigable, non-adjacent waters including wetlands.
The first George W. Bush appointee as Army Assistant Secretary for Civil Works, former Mississippi Congressman Mike Parker (who had also switched parties in an unsuccessful run for Governor), began criticizing EPA soon after his appointment. He told EPA AA Tracy Mehan and me that creating EPA was "the biggest mistake Richard Nixon made." The request for Parker's resignation in March 2002 was generally attributed to comments he made criticizing cuts to the Corps' budget but there are some indications his intemperate remarks about EPA may also have played a role.