Nixon’s Clean Water Act Impoundment Power Play

The Polluted Lake Charles Which Has a Dangerously High Level of Mercury. Olin-Mathieson Plant in Background 06/1972.

This year is the 40th anniversary of the Clean Water Act (CWA)  G. You might know that this major piece of legislation was passed by Congress in 1972 with much credit given to Richard Nixon. You might not know that it almost didn’t happen because after it was passed by Congress, Nixon vetoed it.

Before the first Earth Day in 1970, Nixon wasn’t particularly interested in environmental issues, but he was a savvy politician who understood the voting potential of millions of Earth Day marchers and demonstrators. Earth Day organizers were capitalizing on a growing American environmental consciousness brought about by the increasing news of oil spills, polluting factories and power plants, raw sewage, toxic dumps, pesticides, freeways, the loss of wilderness and the extinction of wildlife. All of these issues were galvanized by iconic images of burning rivers and smoke stacks spewing toxic air pollution.

Major advancements in wastewater treatment and the reduction of pollution from pipes, sewers, ditches, and other point sources are due to this important law.

Nixon seized on the opportunity to attract new support and sent dozens of environmental proposals to Congress, including the Clean Water Act of 1972. According to the Bureau of Land Management, “Prior to the end of World War II, efforts to control water pollution were largely the responsibility of the states, and tended to focus on the water quality of receiving waters by establishing water quality standards.” The CWA, for the first time, focused on nationwide standards set for discharge of wastewater based on industries.

By the time the CWA passed through Congress, it had a hefty price tag attached to it so Nixon balked. He favored a fiscal philosophy of “'New Federalism' –an attempt to redirect money and power back to states that had been lost under President Delano Roosevelt’s New Deal. However, New Federalism was not an abdication of responsibility; rather, Nixon felt that states were better able to respond to the needs of their people. According to PBS, “Nixon insisted that all environmental proposals meet the cost-benefit standards of the Office of Management and Budget. In 1972, he vetoed the Clean Water Act, which he generally supported, because Congress had boosted its cost to $18 billion.” New environmental legislation had to meet the fiscal efficiency standards inherent in his philosophy. The price tag eventually rose to $24 billion, and Nixon, in his veto message to Congress on October 17, 1972, called the CWA legislation “budget-wrecking”:

The pollution of our rivers, lakes and streams degrades the quality of American life. Cleaning up the Nation’s waterways is a matter of urgent concern to me, as evidenced by the nearly tenfold increase in my budget for this purpose during the past four years. I am concerned that we attack pollution in a way that does not ignore other real threats to the quality of life. Legislation which would continue our efforts to raise water quality but which would do so through extreme and needless overspending, does not serve the public interest.

There is a much better way to get this job done. A bill whose laudable intent is outweighed by its unconscionable $24 billion dollar price tag - the bill which has now come to my desk would provide a staggering, budget-wrecking $24 billion dollars. Another provision would raise the federal share of the cost of future facilities from 55 percent to 75 percent - actions which would not in any real sense make our waters any cleaner.

I have nailed my colors to the mast on this issue. The political winds can blow where they may. I am prepared for the possibility that my action on this bill may be overridden.

And overridden it was. On October 18, 1972, first the Senate, then the House overrode Nixon’s veto and the bill became law. After the veto override, Nixon refused to spend the money appropriated by Congress, using his presidential powers to impound half of the money. For a time, members of the House considered impeachment proceedings against Nixon and his actions were eventually challenged in the Supreme Court. In Trainv. City of New York (1975), the court ruled “that the president had no authority to withhold funds provided by Congress in the Clean Water Act of 1972,” stating essentially, “The president cannot frustrate the will of Congress by killing a program through impoundment.” In addition, the Impoundment Control Act of 1974 provided a means of controlling the President’s ability to impound funds for programs that they don’t support.

Fast forward 40 years and the CWA has done a great deal to improve the health of our water ways. American Rivers says, “Major advancements in wastewater treatment and the reduction of pollution from pipes, sewers, ditches, and other point sources are due to this important law.” There is still work to be done, however, because there are still threats to our water ways. According to American Rivers, we need “better implementation and enforcement.” The CWA made it unlawful to discharge any pollutant from a point source, such as a pipe or constructed ditch, into navigable waters without a permit. But the law doesn’t cover non-point sources such as agricultural storm runoff, factory farm runoff, irrigation return flows and activities like mountaintop removal mining, leaving small streams and wetlands vulnerable.

There is also the looming threat of a lack of funding, ironically this time from Congress. Last summer the House tried to do an end run around federal oversight of water quality standards, sending most control back to the states and reversing the authority of the CWA. Here is a list of all the cuts to environmental protections based on the budget proposal put forth by the House, all in the name of job creation. Were this budget to have passed the Senate, we would be on our way to back to the days of burning rivers.

As we celebrate 40 years of cleaner water, let’s not lose site of the goals of the CWA. Let’s continue to work towards eliminating releases of toxic substances into all water ways and ensuring that surface waters increasingly meet standards necessary for swimming, fishing, drinking and bathing for humans, wildlife and aquatic organisms alike.

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