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Peter J. Ryan, Water Pollution, 35 Alb. L. Rev. 198
(1971)

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 COMMENTS

SYMPOSIUM: ENVIRONMENTAL PROTECTION-PART II*

WATER POLLUTION

Introduction
Water, n. 1. the colorless, transparent liquid occurring on earth as
rivers, lakes, oceans, etc. and falling from the clouds as rain: it is chemi-
cally a compound of hydrogen and oxygen.... 2. water in any of its forms
or in any amount, or occurring or distributed in any specified way, or
for any use, as drinking, washing, etc .... 8. any body fluid or secretion;
specifically, (a) urine, saliva, tears, gastric and pancreatic juices, etc.
(b) the fluid surrounding the fetus in pregnancy; amniotic fluid.'
Pollution, n., a polluting or being polluted.
Pollute, v.t., to 2make unclean, impure, or corrupt; desecrate; defile;
contaminate; dirty.
"Pollution" shall mean the presence in the environment of condi-
tions and or contaminants in quantities of characteristics which are or
may be injurious to human, plant or animal life or to property or which
unreasonably interfere with the comfortable enjoyment of life and prop-
erty throughout such areas of the state as shall be affected thereby.'

The above definitions alone should be sufficient to illustrate the impor-

tance of pure water. The fact that pure water is essential to life processes
makes water pollution a subject to be given top priority. Water polluted
by man has existed for centuries, but the technological developments and
increased population of the last century have quickened the pace at which
man is destroying his environment.
While pure waters regulation is a proper subject for the application of
governmental controls in the public interest, 5 such controls alone are not
enough. The environmental problems facing us "call for fundamentally

• Part I of the Symposium on Environmental Protection is in Vol. 35 No. I.

'WEBSTER'S NEW WORLD DICTIONARY 1650 (College ed. 1960).

2d.at 1132.
8
NEW YORK ENVIRONMENTAL CONSERVATION LAW, Laws of N.Y., ch. 140, art. 1, § 2 (6)
(1970).
4Since the Dark Ages and probably before, most communities have handled their sewage
by depositing it into the handiest river. This method did well enough for the Dark Ages.
It sufficed even for the Renaissance cities with populations as large as 30,000. Aided by
sunshine, fresh air and bacteria, water can do an extraordinary purification job on organic
wastes. However, simply dumping raw or even partially treated sewage into the nearest
body of water will not do for the enormously larger populations of the Aquarian Age.
Dead Lakes, Another Washday Miracle, 35 CONSUMER REPORTS 528, 529 (1970) [hereinafter
cited as Dead Lakes, Another Washday Miracle].
5Esposito, Air and Water Pollution: What to do While Waiting for Washington, 5 HARV.
CIv. RirlTs-Civ. LmB. L. REV. 32 (1970).
1971] WATER POLLUTION
new philosophies of land, air and water use, for stricter regulation, for ex-
panded government action, for greater citizen involvement, and for new
programs to ensure that government, industry and individuals all are called
on to do their share of the job and pay their share of the cost." I
There exists a myriad of legislation relating to water pollution, which is
mushrooming all the time.7 It is not the purpose of this comment to ex-
amine these laws in depth. It is intended to deal with them only to the ex-
tent necessary to demonstrate what the situation is, what is being done and
what could be done to improve the quality of water throughout New York
State and particularly in New York City.

The Problem
There are several types of water pollution. Some pollutants only affect
our waterways aesthetically, while others are injurious to the health and
welfare of mankind. Poisonous chemicals in our water supply can usually
be traced to one of two sources. The first includes fertilizer and pesticides
which end up in our waterways after being applied to the land for argricul-
tural purposes. 8 Many of the tools which have been developed for agricul-
tural use during the last century are now being heralded more as a menace
to mankind than a godsend.' The second source is the practice, developed
over the centuries, of using the waterways for waste disposal.
Mercury
The recent action taken by the Department of Justice to prosecute eight
industrial firms under the 1899 Refuse Act 10 on charges of dumping
mercury into the rivers and lakes of seven states illustrates the widespread
effects of water pollution and the slow pace at which society has moved to
abate it."
More than five million pounds of mercury are used each year in a variety
of manufacturing processes including the production of scientific and elec-
trical instruments, disinfectants, fungicides, pigments, plastics, pulp and
paper, chlorine, and caustic soda. Some of the mercury residue from these
operations is casually dumped into our waterways as industrial wastes.
Scientists have found that mercury compounds are often entering the
aquatic food chain. They are absorbed by river-bottom vegetation, which
is eaten by small fish, which are in turn eaten by larger fish. Thus, the
6
RIcHARD M. NIXON, SPECIAL MESSAGE TO CONGRESS ON THE ENVIRONMENT, H.R. Doc.
No. 225, 91st Cong. 2d Sess. (1970).
7The most recent is the new New York State Environmental Conservation Law, Laws of
N.Y., ch. 140 (1970). The pertinent federal statutes can be found at 33 U.S.C. §§ 401-66
(1964), as amended, (Supp. IV, 1969).
8 This results in a loss to the economy not only due to the pollutant effects but also be-
cause of loss of the intended effectiveness. Another example of economic injury is the
loss of fertile topsoil due to erosion.
9See generally R. CARSON, SILENT SPRING (1962) and F. GRAHAM, JR., SINCE SILENT
SPRING (1970).
10 33 U.S.C. § 407 (1964).For an extensive analysis of the use of the statute see Tripp
and Hall, Federal Enforcement under the Refuse Act of 1899, 35 ALBANY L. REV. 60
(1970).
11 N.Y. Times, July 26, 1970, § E, at 3, col. 7.
200 ALBANY LAW REVIEW [Vol. 3 5
mercury, which lodges in animal tissue and is not excreted, becomes con-
centrated in ever-greater amounts until it may reach a human being in the
broiled fish on his dinner plate.'2 There is considerable evidence that other
heavy metals, such as lead and arsenic, may have entered the food chain
13
in a similar manner.
Medical science has long known that small amounts of mercury in the
body can do severe damage, causing numbness of the limbs, blurred vision,
loss of coordination, deafness, speech impairment, mental and emotional
disturbances, prolonged coma, and even death. 4
On the same day that Secretary Hickel recommended prosecution of the
eight mercury polluters to the Department of Justice, 5 Governor William
Milliken of Michigan told a Midwestern governors conference that industry
had been dumping "this deadly substance" into open waters for 30 years
before the consequences were recognized. "The mercury problem," he
said, "demonstrates that the nation's environmental programs were and are
still inadequate." '6

Mercury is only the most recent dangerous pollutant to be exposed. A

few years ago the topic of conversation centered around the dangers of in-
organic pesticides such as DDT." The danger from most of these inor-
ganic pollutants is that they are not biodegradable and therefore have a
cumulative effect on our environment.

Phosphate Detergents
Phosphates, which are present in varying amounts in many household
detergents, have been singled out as the chief villain in accelerating the
death of lakes and rivers by eutrophication.' 8 Phosphates and nitrates are
major nutrients that speed algae growth. These nutrients come from two
major sources, effluent from human sewage and detergents introduced into
sanitation systems from commercial and household use.'
Members of the detergent industry argue that there is no clear proof that
detergent phosphates alone are triggering algae overgrowth. They contend
that the solution is to improve our sewage-treatment plants to remove phos-
phorous and other nutrients. It is true that some 1,400 American com-
munities, including some sizable cities, do little with sewage other than

12 NEWSWEEK, Aug. 3, 1970, at 61.

I8N.Y. Times, Aug. 23, 1970, § L, at 49, col. 4. As it is not yet known how to remove
these metals, they may remain on stream and lake bottoms for 50 to 100 years.
"4 N.Y. Times, July 26, 1970, § E, at 3, col. 7.
15 See text accompanying note 11 supra.
16 N.Y. Times, July 26, 1970, § E, at 3, col. 7.
1T See generally R. CARSON, SILENT SPRING (1962) and F. GRAHAM, JR., SINCE SILENT

SPRINO (1970).
'sAn eutrophic lake is usually a relatively old lake that can support water plants
lavishly. Given an abundance of nutrients and warm weather, the algae multiply so fast
that they often form huge mats of green slime on the water's surface. The lake will
eventually die. Dead Lakes, Another Washday Miracle, supra note 4, at 528. See also
NEWSWEEK, Aug. 24, 1970, at 53.
19 Lake George Park Commission, Detergent Phosphate Percentages Revealed, 1970
(mimeographed pamphlet distributed to camp owners on Lake George during the summer
of 1970).
1971] WATER POLLUTION
discharge it, untreated, into the nearest river.2' It is obvious that these
communities should be strongly encouraged or even forced to improve their
sewage-treatment plants. However, this will take time and money. In the
meantime it would be a simple matter to substitute other household cleansers
for those containing phosphates 21 or at least encourage use of those low in
22
phosphates.
There are a number of reliable lists available which point out the rela-
23
tive content of phosphate in the many commercially available detergents.
After January, 1971, all detergents sold in the State of New York must
bear a label indicating their phosphate content.2 4
Detergent makers have been the target of law suits by those wishing to
clean' up the water of the Great Lakes basin. Six faculty members and
students at Wayne State University have asked the Wayne County Circuit
Court for a permanent injunction against four laundry detergent makers
prohibiting the distribution in Michigan of any detergent product contain-
ing more than 1.5 percent phosphates. Their suit also asks that the com-
panies pay up to $5 million each to Michigan citizens for damage their
detergents have allegedly done to the waters of the Great Lakes basin.2 5
This is a method of attacking pollution that will be developed more fully
in a later section of this article.2 6

Thermal Pollution 27

Thermal pollution is a type of water pollution that results from the ex-
cessive heating of the waters. This in turn alters ecological processes to
the detriment of inhabitants of both land and water.2" Excessive heat added
to water by means of industrial power plant cooling can produce the same
deleterious effects on the physical characteristics of water as organic wastes
produce, but in a way that is not as visible. 2 9 The problems of preventing
thermal pollution have increased in recent years through the use of nuclear
powered electric generating plants. These plants use as much as 40 per-

20 Dead Lakes, Another Washday Miracle, supra note 4, at 529.

21 Sears, Roebuck has announced a totally phosphorus-free detergent, as have Culligan,
Days-Ease Home Products and North American Chemical. Id. at 530.
22 In areas such as most of New York City, which have very soft water, the barest
minimum of phosphate is necessary to do an adequate cleaning job. Id.
23 Id. at 531. The Jewel Food Stores in Chicago and its suburbs have posted a list
of the phosphate content in each of the detergents offered for sale. N.Y. Times, July 21,
1970, at 45, col. 4 (city ed.).
24Dead Lakes, Another Washday Miracle, supra note 4, at 530. After March 1, 1971,
all detergents containing phosphates will be banned from sale in Suffolk County, New York.
TIME, Nov. 23, 1970, at 41, col. 3.
25 N.Y. Times, July 26, 1970, at 19, col. 1.
26 See text accompanying note 130 infra.
27 For a recent analysis of this problem in detail, see Comment, Thermal Pollution: The
"Dishonorable Discharge"-New York's Criteria Governing Heated Liquids, 34 ALBANY
L. REV. 539 (1970). See also Comment, Cold Facts on Hot Water: Legal Aspects of
Thermal Pollution, 1969 Wis. L. REv. 253.
28 See Edwards, Legal Control of Thermal Pollution, 2 NAT. RESOURCES LAWYER 1 (1969).
29 Hines, Water Use-A Symposium: Controlling Industrial Water Pollution: Color the
Problem Green, 9 B.C. IND. & COM. L. REV. 531, 556 (1968).
202 ALBANY LAW REVIEW [Vol. 35
cent more cooling water than fossil-fueled systems.3 ° Although nuclear
power plants have not mushroomed at the rate projected ten years ago,
electric power companies may be forced to build more in the immediate
future to meet the demands of an expanding economy."
When Consolidated Edison's nuclear power plants at Indian Point, New
York, are in operation, the hot water dumped back into the Hudson River
will be 14-17 degrees above the normal river temperature.3 2 Studies are
being conducted by the New York University Institute of Environmental
Science to determine the potential effects of this thermal pollution on the
38
ecology of the Hudson River.
Charles Luce, chief executive officer of Consolidated Edison, has been
quoted as saying: "I don't want to be remembered as the guy who destroyed
the aquatic life on the Hudson and that's why we are funding new river
studies. If it turns out we need cooling towers, we'll put them in." How-
ever, it was pointed out in the same article that he also stated, "There's no
power plant we can build that won't have some impact on the environ-
ment." 84
The 1965 Water Pollution Control Act 85 authorizes the Attorney Gen-
eral to enforce standards only after a violation has occurred; so there is
no injunctive relief to prevent threatened thermal pollution. It is suggested
that thermal pollution is one form of pollution that we can prevent before
it has exerted a significant effect upon our environment. One manner of
accomplishing this would be to build thermal pollution controls into the
licensing of future power plants.
Four types of technological controls have been suggested:

1. Reducing heat wasted, by improving the efficiency of our thermal

plants or developing new non-polluting energy systems;
2. Making constructive use of the huge amounts of waste heat for irriga-
tion extension, heating buildings, or increasing production of certain
fish and shellfish;
3. [Establishing] a temperature deviation above or below the normal
temperature and the duration of that deviation;
4. Managing the receiving environment to reduce the harmful impact
of the heat, through increased turbulence, augmented river flow or
better selection of sites for the plants from the point of view of eco-
logical impact.8"

These factors must be considered in the planning stage so that as many

elements as possible are weighed in balancing the public need for electrical

30 Edwards, supra note 28, at 1.

31 The supply of fossil fuels is rapidly being depleted. This is evidenced by the projected
shortage of fuel oil and natural gas in the northeast during the winter of 1970-71. N.Y.
Times, Oct. 9, 1970, at 9, col. 1 (city ed.). See also Mayer, Why the U.S. Is In An
"Energy Crisis", FORTUNE, November, 1970, at 75.
82 Brownmiller, Con. Ed's Charles Luce-All River (Sometimes) to the People, N.Y.
Times, Apr. 12, 1970, (Magazine), at 34, 94.
33 Id.
84Id.
35 33 U.S.C. § 466g(g) (Supp. IV, 1969).
38 Edwards, supra note 28, at 1.
1971] WATER POLLUTION
energy against the public interest in preserving a decent ecological environ-
ment.
The rise in a river's temperature caused by the thermal pollution of a
single plant may seem insignificant. It must be realized, however, that the
cumulative impact of many thermal discharges may raise the temperature
of a river significantly.""
Since electric power plants produce efficient, usable energy that is easily
transported and nonpolluting, it is imperative that methods be found to
reduce the pollution caused by the plants themselves. Three major new
power developments that offer alternatives to the present systems have been
suggested.89 One, already demonstrated on a practical scale, is magnetohy-
drodynamics, a method of generating electricity directly from a supersonic
flow of ionized gases. Another, still in the conceptual state, is a method of
gathering solar power in space. The most basic and perhaps most promising
new development is superconductivity, the carrying of electric current with-
out resistance or loss. These breakthrough possibilities require more re-
search and development by both government and industry before they will
be economically operable, but they do offer hope for the future.

NEW YORK CITY

New York City has most of the pollution problems discussed above, plus
others peculiar to its location, all compounded by the fact that it is the
largest city in the country.4 The significance of the problem of water pollu-
tion is evident since New York City is bounded on its western shore by the
Hudson River and on its southern shore by the Atlantic Ocean. The East
River, Jamaica Bay, Gowanus Canal, Flushing Bay, Verrazano Narrows
and Little Neck Bay are waterways located within the City's boundaries.
Upstate tributaries are also part of the water pollution concern of New
York City, as they supply most of the City's water supply. 41
An industrial city .the size of New York produces a vast amount of
municipal and industrial waste. 1.3 billion gallons per day of sewage end
up in the waterways surrounding and running through New York City. 42

87 For an analysis of the problems facing the public utility industry in locating new
facilities, see Sillin, Environmental Considerations Facing the Public Utility Industry, 2
NAT. RESOURCES LAWYER 20 (1969).
38 See text accompanying note 32 supra.
39 For an extensive discussion of the developments see Lessing, New Ways to More
Power With Less Pollution, FORTUNE, November, 1970, at 78.
40 "The region of which New York City is the heart is this nation's prime example
of the increase and concentration of population. The metropolitan area, all of which
affects pollution of our land, water and air, aggregates between 16 to 18 million people,
the largest urban concentration in the world." ENVIRONMENTAL PROTECTION ADMINISTRA-
TION, CITY OF NEW YORK, NEW YORK CITY ENVIRONMENTAL PROSPECTUS 1970, at 3
[hereinafter cited as ENVIRONMENTAL PROSPECTUS]. The Environmental Protection Ad-
ministration was created in 1968, by Mayor John V. Lindsay, to plan and execute a
major effort to restore the quality of the City's physical environment. This report is a
review of accomplishments during the first two years in the area of air, water and land pollu-
tion and a blueprint of action to be taken in the future.
411d. at 27.
421 d. at 19.
204 ALBANY LAW REVIEW [Vol. 35
If these wastes pollute the water, the City itself must assume some of the
blame for failure to maintain adequate sewage treatment plants. About
seventy-five percent of the sewage generated daily receives some degree of
secondary treatment. Twenty-five percent or about 325 million gallons of
sewage per day are discharged untreated into the water surrounding New
York City. Most of this is from the west side of Manhattan where about
200 million gallons per day of raw sewage still spills into the Hudson
43
River.
Many of the problems with New York City's waste disposal system are
a result of the decision, in the middle of the nineteenth century, to develop
a system of combined sewers for storm and sanitary flow. The dual sys-
tem was chosen because it was much cheaper. However, this has proven
to have been false economy because the existing treatment plants cannot
cope with the combined flow during storms. 4 On Staten Island, separate
sewer systems are being constructed which will avoid many of the problems
that exist elsewhere in the City. 5 Hopefully the others can be modified
or the capacity of treatment plants increased.
Steps are being taken to determine methods of increasing the capacity
of the City to handle its waste water. A demonstration storm water treat-
ment plant is being built on the shore of Jamaica Bay. It will serve as the
prototype for a ring of several plants that will ultimately encircle this bay. 46

Jamaica Bay Ecological Study

Jamaica Bay has great potential as one of the city's greatest and most
usable parks. 7 It is presently the subject of a major study undertaken by
New York City's Environmental Protection Administration's Bureau of
Water Pollution Control under a federal grant of nearly $1,000,000 to
determine the ecological effect of waste treatment on one of the great re-
maining wetland areas within the City's limits.4 8
Intelligent management of the Jamaica Bay estuary, requires a better un-
derstanding of its biology and hydrology than now exists. The study covers
the bay's hydrology, the tidal exchange and flow patterns; water quality
including bacteria types and sources and levels of phosphates; nitrates and
synthetic detergents; a quantitative assessment of all marine biota; and the
relationship of algae to bacterial flora. The information developed will
govern the design of all future auxiliary plants around the city. The data
will help New York City's water pollution control engineers determine the
need for tertiary treatment of liquid waste or the construction of deep-water
submarine outfalls.4 9

431d.
441d. at 4.
4' ld.
46
d at 19.
4 Taormina, Environment: Journal On Jamaica Bay, THE CONSERVATIONIST, April-May
1970, at 16.
48 ENVIRONMENTAL PROSPECTUS, supra note 40, at 6.
49 Id.
1971] WATER POLLUTION
Aesthetics and Practicability
In planning new waste water treatment plants, New York City has found
it desirable to consider the impact the plant will have on its immediate
surroundings as well as its efficiency.50 An example of how the City has
attempted to integrate a waste treatment facility into a community is the
Riverbank waste water treatment facility scheduled for completion in 1975.
Located between 137th Street and 145th Street, this project will consist of
a completely modern sewage treatment plant providing the desired 90%
water purification efficiency. It will lie entirely underground and will be
surmounted by a thirty acre park. The complex has been designed to blend
in well with the surrounding environment and will provide a wide variety
of cultural and recreational facilities. 5 The plant is intended as the City's
major contribution to the cleanup of the Hudson. 2
Experimentation on the practical aspects of waste control is being planned
for a twenty acre site in the old Brooklyn Navy Yard where the concern
over aesthetics will not be as important. The East River Environmental
Protection Center is designed to treat 6,500 tons per day of solid waste 53
and 60 million gallons per day of waste water.5 4 A re-cycling of energy
will be accomplished when gases developed as a result of the sewage treat-
ment process are used to fuel an incinerator. Steam generated by the in-
cinerator is to be sold to Consolidated Edison to produce electricity. 55
These are but two examples of the type of comprehensive planning that is
going into the waste treatment facilities of the future. Through such plan-
ning it is hoped that a point in time will be reached when all wastes are dis-
posed of efficiently without affecting our environment.

New York City's Water Supply

The New York City water system provides the water requirements of
eight upstate counties as well as the City itself. At an average per capita
demand of 150 gallons per day in 1970, the total the system must furnish
daily is 1.4 million gallons. 60 This supply comes from three primary water-
sheds: the Croton, Catskill and Delaware systems. This water reaches the
City through two water tunnels built 35 and 65 years ago. For many years
both tunnels have been operating at full capacity, thus endangering the City
because it would not be possible to shut down either tunnel for inspection
or repairs. A third tunnel is desirable to meet this contingency and also

50 "In the future, waste management must be undertaken in the context of the total
environment to insure that the essential job of disposal is carried out with the least
possible damage to the ecological complex that sustains us." Id. at 3.
51 The plans now include a community center, an amphitheatre, pools for swimming,
wading and ice skating, a public dock and fishing pier, a restaurant and shops and
playing fields for several sports. Id. at 5.
52Id.
53 Id. at 6.
54 Environmental Protection Administration, City of New York, New York City Water
Pollution Control Program, Summary, February, 1970.
55 ENVIRONMENTAL PROSPECTUS, supra note 40, at 6.
66 1d. at 27.
 ALBANY LAW REVIEW (Vol. 35
to serve the redistributed population of the City. Since construction of the
second tunnel, the populations of Queens, Brooklyn and Staten Island have
increased. The total cost of a third tunnel has been projected to be in
excess of one billion dollars.57
The quality of the water delivered to New York City is very much
related to ecological factors on the watersheds. Historically, the watersheds
of New York City were part of a vast rich wilderness on which man is en-
croaching at an increasing rate. In the decades ahead, the watersheds can
be expected to deteriorate somewhat with a corresponding deleterious effect
on the quality of the City's water. There are indications of deterioration
of the Croton System to an extent that it is likely to require filtration in the
not too distant future."8
It is apparent that most of the water pollution problems facing New York
City are the same as those facing the rest of the state. Therefore the solu-
tions should be the same. The rest of this comment will deal with the de-
velopment of case law and legislation that are presently available to fight
water pollution and attempt to offer some idea as to what might be accom-
plished in the future.
Development of Common Law To Control Water Pollution
The common law doctrine of riparian rights served as the basis for much
of the statutory material controlling water pollution that presently exists
in New York. 59 The riparian doctrine was first presented in 1827 by Jus-
tice Story in Tyler v. Wilkinson."° He stated that while "no proprietor has
a right to use the water to the prejudice of another ... there may be, and
there must be 41lowed of that, which is common to all, a reasonable use." 61
The "reasonable use" theory was firmly established in New York by two
cases decided in 1851.12 It was reinforced in 1879 when the court of ap-
peals said the rule "is well settled, that each riparian owner has a right to
a reasonable use of the water," 11 and that "the question of reasonable use
is ordinarily a question of fact to be determined upon a consideration of
all the circumstances." 64
The rights of a riparian owner include the right, as limited by the rea-
sonable use test, to have the water free from any interference with its
natural purity.15 The first New York pollution case decided on this basis
57 Id. at 28.
58 Id.
59 For a more detailed analysis of the statutory control of water pollution in New York,
see Comment, Water Pollution Control in New York, 31 ALBANY L. REV. 50 (1967).
60 24 F. Cas. 472 (No. 14,312) (C.C.D.R.I. 1827).
61 Id. at 474. The following year Kent stated the rule in his COMMENTARIES ON
AMERICAN LAW:
All that the law requires of the party, by or over whose land a stream passes, is that
he should use the water in a reasonable manner, and so as not to destroy, or render use-
less, or materially diminish or affect the application of the water by the proprietors below
on the stream.
3 KENT, COMMENTARIES 354 (1st ed. 1828), see 12th ed., at 440 (1873).
62 Van Hoesen v. Coventry, 10 Barb. 518 (N.Y. Sup. Ct. Gen. T. Albany County 1851);
Thomas v. Brackney, 17 Barb. 654 (N.Y. Sup. Ct. Gen. T. Tompkins County 1851).
63 Bullard v. Saratoga Vichy Mfg. Co., 77 N.Y. 525, 529 (1879).
64 Id. at 530.
65 2 H. FARNIIAM, WATERS AND WATER RIGHTS 1689 (1904).
19711 WATER POLLUTION
was Davis v. Lambertson, in 1868.66 A dairy farmer who used a stream
to water his stock was granted an injunction against an upstream owner
who was permitting the stream to become polluted by his operation of a
cheese plant and pig farm. In an 1877 case, an injunction was also granted
where an upstream owner had discharged sewage into a stream, killing
hundreds of trout kept by the plaintiff. 67 In both of these cases, there was
clear proof of serious harm caused by pollution, and it was not shown that
the injunction would work serious hardship upon the defenda-'t. This was
not always the situation in the cases that followed.68
A landmark in the development of the common law doctrine relating to
water pollution control is Whalen v. Union Bag and Paper Company.69 A
pulp mill which represented an investment of more than a million dollars
and employed over four hundred persons polluted a stream in which the
plaintiff, who owned a farm, was "a lower riparian owner." The trial
court granted damages to the plaintiff of $312 a year and enjoined the de-
fendant from further pollution. The appellate division reduced the damages
to $100 per year and eliminated this injunction. The court of appeals, in
a unanimous decision, found the damage "not unsubstantial" and held that
the injunction was proper. "Although the damage to the plaintiff may be
slight as compared with the defendant's expense of abating the condition,
that is not a good reason for refusing an injunction. . . . The weight of
authority is against allowing a balancing of injury as a means of determining
the propriety of issuing an injunction." 70 The rule laid down in Whalen,
then, is that whenever the damage resulting from a nuisance is found "not
unsubstantial" an injunction would follow. The result of this decision, if
universally applied, would make it possible for almost all polluting sources
to be enjoined by some lower riparian owner, even though little more than
71
nominal injury was being incurred.
Cases which follow Whalen in refusing to balance the hardships in pollu-
tion cases are hard to find. On the other hand, there are a number of
cases in which the courts have resorted to such a test in order to avoid a
harsh result. 72 The refusal of an injunction in these cases was generally
predicated on the fact that no substantial damage had occurred.

66 56 Barb. 480 (N.Y. Sup. Ct. Gen. T. Onondaga County 1868).

67 Seaman v. Lee, 10 Hun 607 (N.Y. Sup. Ct. Gen. T. 2d Dep't 1877).
68 Cf. Chapman v. City of Rochester, 110 N.Y. 273, 18 N.E. 88 (1888). The defendant
was put to considerable expense by an injunction prohibiting the municipality from discharg-
ing part of its sewage into a stream from which the plaintiff collected water for domestic
purposes.
69 208 N.Y. 1, 101 N.E. 805 (1913), modifying 145 App. Div. 1, 129 N.Y.S. 341 (3d
Dep't 1911).
701d. at 5, 101 N.E. at 806.
71 Comment, Water Pollution Control in New York, 31 ALBANY L. REV. 50, 54 (1967).
72 Squaw Island Freight Terminal Co. v. City of Buffalo, 273 N.Y. 119, 7 N.E.2d
10 (1937); Lyon v. Water Comm'rs of the City of Binghamton, 228 App. Div. 585, 240
N.Y.S. 647 (3d Dep't 1930); Michelson v. Leskowicz, 55 N.Y.S.2d 831 (Sup. Ct. Spec. T.
Suffolk County 1945); Kyser v. New York Cent. R.R., 151 Misc. 226, 271 N.Y.S. 182
(Sup. Ct. Onondaga County 1934); Driscoll v. American Hide & Leather Co., 102 Misc.
612, 170 N.Y.S. 121 (Sup. Ct. Saratoga County 1918), afl'd, 184 App. Div. 916, 170
N.Y.S. 1076 (3d Dep't 1918).
 ALBANY LAW REVIEW [Vol. 3 5
Despite the number of cases which failed to follow the rule as set down in
Whalen, until quite recently one would have been justified in concluding
that Whalen still expressed the law of New York. However, in Boomer v.
Atlantic Cement Co.,73 the court of appeals explicitly over-ruled Whalen
stating "[tihe ground for the denial of injunction, notwithstanding the find-
ing both that there is a nuisance and that plaintiffs have been damaged
substantially, is the large disparity in economic consequences of the nuisance
and of the injunction." 7 Owners of land adjoining a cement plant suffered
property damage from dirt and smoke emanating from the installation.
The supreme court estimated the damage suffered by the plaintiffs to be
$185,000. This was balanced against the cement company's investment
of $45,000,000 and the fact that it employed 300 persons. 75 The cement
plant was allowed to continue operation after payment of permanent dam-
ages. A fact employed by the court in supporting its holding was that the
most modem dust control devices available had been installed at the plant.70
This newly enunciated doctrine of assessment of permanent damages, in
lieu of an injunction, where substantial property rights have been impaired
by the creation of a nuisance, will probably be severely questioned in the
future. Judge Jasen, dissenting, criticized the decision as "compounding
the magnitude of a very serious problem in our State and Nation today." 77
While the majority chose to leave the solution of the greater public problem
to the legislature, Judge Jasen would apply "all available and reasonable
methods to prevent and control air pollution." 78 The arguments he made
could be equally applied to water pollution situations. If the kind of in-
verse condemnation that was authorized in Boomer is allowed in future
cases, we have lost a valuable tool in the fight against pollution. Perhaps
a balancing of economic interests is desirable for the short term interests of
the public, but it is impossible to determine the long range effects of pollu-
tion on the general public. It is submitted that preventing as much pollu-
tion as possible, at all times, should be the goal of the courts as well as the
legislature.

GOVERNMENT REGULATION OF WATER POLLUTION

New York State Regulation

On April 22, 1970, Governor Rockefeller signed into law legislation 19
7326 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970), noted in 35 ALBANY L.
REV. 148 (1970).
74 26 N.Y.2d at 223, 257 N.E.2d at 872, 309 N.Y.S.2d at 315.
75 Id. at 225, 257 N.E.2d at 873, 309 N.Y.S.2d at 316. In refusing to grant an injunc-
tion the appellate division also considered the zoning of the area, the defendant's use of
the most modern and efficient devices to prevent offensive emissions and discharges, and
its payment of substantial sums of real property and school taxes. These items were not
discussed by the court of appeals. 30 App. Div. 2d 480, 481, 294 N.Y.S.2d 452, 453
(3d Dep't 1968).
7626 N.Y.2d at 231, 257 N.E.2d at 877, 309 N.Y.S.2d at 322. The public interest
in clean air was expressly excluded from consideration. Id. at 223, 257 N.E.2d at 871,
309 N.Y.S.2d at 314.
77Id. at 229, 257 N.E.2d at 875, 309 N.Y.S.2d at 320.
78Id.
79 Laws of N.Y., ch. 140 (1970).
1971] WA TER POLLUTION
creating a new Department of Environmental Conservation which combines
the functions of the Conservation Department, the Water Resources Com-
mission, the Air Pollution Control Board, the Pesticide Control Board, the
Natural Beauty Commission and activities from other agencies. The pro-
visions of this law became effective July 1, 1970. It is too early to give a
meaningful analysis of its accomplishments or shortcomings. It would ap-
pear that its main accomplishment has been to consolidate all state agencies
related to environmental protection. The statute contains no new enforce-
ment provisions. Its main function appears to be reorganization and
declaration of policy. It has been suggested that the state's water pollu-
tion abatement policies and enforcement procedures will remain much the
same as they were under the prior arrangement.8 0
Most of the enforcement powers granted to the Department of Environ-
mental Conservation related to water pollution are to be found in the
Public Health Law." Prior to the establishment of the Department of
Environmental Conservation, Article 12 gave the Water Resources Com-
mission the power to classify waters and adopt standards and delegated the
enforcement of the program to the Department of Health.12 These func-
83
tions have all been transferred to the new department.
The provisions of Article 12 are enforceable by injunction, fines and
criminal prosecution. An action for an injunction is to be brought by the
Attorney General upon the request of the Department of Environmental
Conservation. 4 In such an action, any findings previously made by the
Department or a hearing officer are deemed prima facie evidence of the
facts found. 5 The Attorney General also has the power to settle or com-
promise the action before final judgment.
Several important court decisions in recent years have challenged the
authority granted by Article 12. Most of these have been Article 78 pro-
ceedings to restrain the Water Pollution Control Board (or, since 1961,
the Department of Health) from enforcing pollution abatement rulings.
Many have challenged the Health Department's power to order municipali-
ties to install new sewers. The courts have consistently upheld the con-
stitutionality of Article 12 and the delegation of legislative authority
therein ."
Strict enforcement of Article 12 by the state can place a huge financial
burden on localities which would in many instances cause a tax increase of
well over one hundred percent. There are numerous instances where voters
80 Interview with Stanley Fishman of the Water and Air Resources Bureau in the Office
of the New York State Attorney General, Albany, New York, Sept. 29, 1970.
81 N.Y. PUB. HEALTH LAW art. 12 (McKinney 1954), as amended (McKinney Supp.
1969).
82 See Comment, Water Pollution Control in New York, 31 ALBANY L. REV. 50, 55
(1967).
83 Laws of N.Y., ch. 140, §§ 75 and 77 (1970).
84 At present, the Water Resources Commission and Health Department are still carry-
ing on some of these functions. Fishman, supra note 80.
85 N.Y. PUB. HEALTH LAW § 1251 (McKinney 1954).
86
E.g., City of Utica v. Water Pollution Control Board, 5 N.Y.2d 164, 156 N.E.2d
301, 182 N.Y.S.2d 584 (1959); City of Johnstown v. Water Pollution Control Board of the
State of New York, 12 App. Div. 2d 218, 209 N.Y.S.2d 982 (3d Dep't 1961).
210 ALBANY LAW REVIEW [Vol. 3 5
have turned down local bond issues earmarked for sewage treatment facili-
tiesY Realization of the problem resulted in passage of the Pure Waters
Bond Act.8 This Act authorized the creation of a state debt of up to one
billion dollars for the construction and improvement of sewage treatment
facilities. The state is prepared to pay thirty percent of the cost of new con-
struction. It is also authorized to advance that part of the non-municipal
share of the cost of construction that is not paid by the federal government
(up to thirty percent of the total cost)."' The statute thus limits the re-
quired municipal share to forty percentY0 When § 1263-b of the Public
Health Law 01 was enacted in its present form, the contemplated federal
share was up to thirty percent of the cost of treatment facilities. However,
Congress appropriated much less so that in actuality an amount far below
thirty percent was received.92 This limitation on available federal funds
was given as one of the reasons for the enactment of section 1263-b.9 3 The
shortcomings of federal aid are a reality that must be faced by state and
94
local governments.

New York City

There are several city, state, regional, and federal agencies with varying
degrees of control over pollution of the waters surrounding New York City.
The city agency responsible is the Environmental Protection Administra-
tion established by Mayor Lindsay in 1968." 5 Its jurisdiction is defined in
Chapter 57 of the New York City Charter as amended in 1968.6 The
principal functions of the Environmental Protection Administration in the
area of water pollution control include regulation of private water com-
panies, control over emissions into the water within and about the City of
New York, operation of all public sewers, and control over sewage. As
illustrated by the language of the statute, the activities of the Environmental
Protection Administration are typical of those of any administrative
7
agency. The two departments of the Environmental Protection Adminis-

87 Comment, Water PollutionControl in New York, 31 ALBANY L. REV. 50, 60 (1967).

88 Laws of N.Y., ch. 176 (1965).
89 N.Y. PUB. HEALTH LAW § 1263-b (McKinney Supp. 1969).
90 This does not mean that an order to cease pollution of classified waters must be made
contingent upon receipt by a municipality of sixty percent of the cost from the state or
federal governments. The municipality is required to make itself eligible for such financial
support. Village of Whitehall v. Ingraham, 31 App. Div. 2d 894, 295 N.Y.S.2d 777 (3d
Dep't 1968) (per curiam).
91 N.Y. PUB. HEALTH LAw § 1263-b (McKinney Supp. 1969).
92 Laws of N.Y., ch. 177, § 1 (2), at 812 (1965).
93 Id.
94 It is claimed that Congress has made a practice of authorizing large amounts of
money with much fanfare and then very quietly appropriating small amounts. Enforce-
ment Now! at 3, a paper presented by Thomas R. Glenn, Jr., Director and Chief Engineer,
Interstate Sanitation Commission, at the Conference on International & Interstate Regula-
tion of Water Pollution at the Columbia University School of Law, New York City, March
13, 1970 [hereinafter cited as Enforcement Now!].
95 See the text accompanying note 50 supra.
96 Local Laws of the City of New York, ch. 57, § 1403 (4) (1968).
97 Local Laws of the City of New York, ch. 57, § 1403 (4) (1968). The function of
the Environmental Control Board is:
19711 WATER POLLUTION
tration most closely related to water pollution control are the Department
of Water Resources and the Department of Sanitation.9" These depart-
ments work hand in hand with state, interstate and federal agencies which
are also responsible for purity of the water in and about New York City.
The first of these to be discussed is the Interstate Sanitation Commission.

Interstate Sanitation Commission

The Interstate Sanitation Commission is a tri-state agency of New Jersey,
New York and Connecticut, established in 1936 for the abatement of exist-
ing and the control of future water pollution in the tidal waters of the New
York metropolitan area. Since 1961, it has also had certain limited activi-
ties with respect to interstate air pollution problems among the three states.99
This Commission has strong enforcement powers in the area of water
pollution control and has not hesitated to use them when persuasion has
failed. In taking legal action, it must first hold a public hearing prior to
issuing a Commission Order. This order ordinarily includes a timetable
for the necessary steps for abatement of pollution. If this order is not met,
the Commission applies to the courts for injunctive relief. If relief is
granted, the courts usually set a timetable for compliance. Since 1936,
the Commission has issued over 60 orders and has gone to court twelve
times with each court decision being favorable to the Commission." 0 The
expanded legal actions taken by the states in the last few years have freed
the Commission to concentrate its activities on other supplemental services
0
to the member states.' '
(b) to examine into the sources of water supply of any private companies supplying
the city or any portion thereof or its inhabitants with water, to see that the same is
wholesome and the supply is adequate, to establish such rules and regulations in respect
thereof as are reasonable and necessary for the convenience of the public, and to exercise
superintendence, regulation and control in respect to the supply of water by such water
companies;
(c) to regulate and control emissions into the water within and about the city of New
York of harmful or objectionable substances, contaminants and pollutants; enforce all
laws, rules, and regulations with respect to such emissions; make such investigations
and studies as may be desirable for the purpose of such enforcement and of controlling
and eliminating pollution of such waters, and for such purpose to have the power to
compel the attendance of witnesses and take their testimony under oath.
Sections 1403 (5) (a) and (b) provide that:
(a) The administration shall have charge and control over the location, construction,
alteration, repair, maintenance and operation of all sewers including intercepting sewers
and sewage disposal plants, and of all matters in the several boroughs relating to public
sewers and drainage and shall initiate and make all plans for drainage and shall have
charge of all public and private sewers in accordance with such plans, and shall have
charge of the management, cure, and maintenance of the sewer and drainage systems
therein; and of licensing of all cisterns and cesspools;
(b) The administrator may adopt regulations requiring the discharge of sewage, refuse,
factory-waste and trade-waste into the public sewers of the city, or regulating, restricting
or prohibiting the use of public sewers for the discharge therein of any materials or
substance and may prescribe civil penalties for violation thereof ...
98 ENVIRONMENTAL PROSPECTUS, supra note 40, at 31.
ODActivities of the Interstate Sanitation Commission at 1, submitted for inclusion in
the Record of the Public Hearing--Clear Water Council of the New Jersey State Depart-
ment of Health on September 16, 1969, at the Teaneck Campus, Fairleigh Dickinson,
Teaneck, New Jersey [hereinafter cited as Activities of the Interstate Sanitation Commission].
100 Statement of the Interstate Sanitation Commission at 1, presented by Thomas R.
Glenn, Jr., Director & Chief Engineer, Interstate Sanitation Commission, to the President's
Water Pollution Control Advisory Board, Newark, New Jersey, September 16, 1970 [here-
inafter cited as Statement of the InterstateSanitation Commission].
10, Id.
 ALBANY LAW REVIEW [Vol. 35
Chief among these services is the control and analysis of water and waste-
water. Since it is obligated to assure each of the participating states that
the treatment plants in the District are meeting compact requirements,
sampling of treatment plants is one of the major activities of the Commis-
sion. The Commission also makes shoreline surveys to check for any illegal
discharges. The Commission makes its facilities available for use as a
regional laboratory. It analyzes many samples for the Coast Guard and the
Corps of Engineers involving possible illegal industrial discharges and oil
spills. The Commission performs an educational function by utilizing a
mobile laboratory to instruct treatment plant personnel to perform the tests
10 2
necessary for the examination of water and wastewater.
In addition to its other activities the Commission takes an active interest
3
in any legislation that may affect pollution control in the compact area.11
At present there is concern that the federal government might prohibit dis-
posal of undigested sludge at sea. Many plants within New Jersey and New
York, including all of New York City's plants, have barged digested and
undigested sludge to sea for many years."°4 The Commission not only
urges the continuance of sludge barging but also the barging of industrial
wastes to sea. The Commission argues that barging wastes to sea is de-
sirable because it would prevent the discharge of more nutrients into re-
ceiving waters from the effluents of the treatment plants due to liquids
recycled from the digester. The discharge of nutrients compounds the algae
problem. 5
This line of reasoning is probably valid at present. It does make more
sense to barge sludge and industrial wastes to sea because this will reduce
pollution of our coastal waters. It is submitted, however, that this might
be short range thinking that may later be regretted. The Atlantic Ocean
is large but dumping our wastes there must pollute to some extent. This
pollution may upset the ecological balance to the extent that some species
of plant and animal life may become extinct. If we are ever forced to turn
to the oceans as a source of food, we may run into the effects of today's
pollutants. Perhaps greater efforts should be made to find ways to recycle
wastes. Federal legislation may be helpful in this area.

Federal Regulation
By judicial interpretation, sections 10, 13 and 16 of the Rivers and
Harbors Act of 1899 have become federal enforcement measures against

102 Id. at 2.
a Id. at 4.
104 Sludge, n.: The precipitated solid matter produced by water and sewage treatment
processes. 4 WEBSTER'S NEW INTERNATIONAL DICTIONARY 2370 (2d ed. unabridged 1955).
Digested sludge: sludge which has been stored in enclosed metal tanks (sludge digesters)
until the organic matter has been broken down. Certain of the solids in the sludge become
liquid, some become a burnable gas and others are changed so they compact more
readily, thus reducing the quantity of sludge to be handled for disposal. After digestion,
and usually drying, the sludge is disposed of in a variety of ways including incineration and
disposal at sea. For a discussion of the operation of sewage treatment plants see HILLEBOE
and LARIMORE, PREVENTIVE MEDICINE 112-22 (1966).
105 See the text accompanying note 18 supra.
1971] WATER POLLUTION
water pollution."0 6
One of the leading cases decided under this act is
United States v. Republic Steel Corp.10 7 There, the Court held that the
discharge of industrial waste through sewers which settled out and reduced
the depth of the Calumet River constituted a forbidden "obstruction" to
the "navigable capacity" of the river within the meaning of § 10. The
Court refused to exempt such discharge as refuse matter flowing from sewers
in a liquid state which is permitted by § 13 of the Act.
The key case under § 13 is United States v. Standard Oil Co. 0 s The
indictment charged that the defendant discharged "refuse matter" consisting
of 100-octane aviation gasoline into the St. Johns River by accidentally
leaving a valve open at dockside. The district court dismissed the indict-
ment because it found the discharge was commercially valuable and, there-
fore, was not "refuse matter." The Supreme Court disagreed stating:
Oil is oil and whether useable or not by industrial standards it has the
same deleterious effect on our waterways. In either case, its presence
in our rivers and harbors is both a menace to navigation and a pollu-
tant. 09
The Court formulated its concept of a violation of section 13 by stating:
The word 'refuse' includes all foreign substances and pollutants apart
from those 'flowing from streets and sewers and passing therefrom in a
liquid state' into the watercourse."'
In United States v. Esso Standard Oil Co. of Puerto Rico,"' the court
sustained a conviction of discharging refuse into navigable waters in viola-
tion of § 13. The acts in question involved the spilling of petroleum on
Esso's land and the subsequent flow over ground into the ocean.
In United States v. Interlake Steel Corporation,"2 the court held that
the unintentional discharge of iron particles and an oily substance into the
Little Calumet River could be a violation of § 13. In denying a motion
to dismiss the information, the court held that (1) the discretion of the
United States Attorney to commence prosecution for an alleged violation of
§ 13 of the Rivers and Harbors Act is not limited to the provisions of § 17,
(2) scienter is not a required element for conviction of a § 13 offense, as
such a deposit is malum prohibitum, and (3) § 13 of the Rivers and Har-

10633 U.S.C. §§ 403, 407, 411 (1964). Section 10 provides in part, "that the creation
of any obstruction not affirmatively authorized by Congress, to the navigable capacity of
any waters of the United States is hereby prohibited .... ." Section 13 declares in part
that, "it shall not be lawful to throw, discharge or deposit . . . any refuse matter . . .
other than that flowing from streets and sewers and passing therefrom in a liquid state
into any navigable water of the United States .... " Section 16 declares that a violation
of section 13 is a misdemeanor punishable by a fine not exceeding $2,500 nor less than
$500, or by imprisonment for not less than thirty days nor more than one year or both.
For an extensive analysis of the Act, see Tripp and Hall, Federal Enforcement Under the
Refuse Act of 1899, 35 ALBANY L. Rav. 60 (1970).
107 362 U.S. 482 (1960).
108 384 U.S. 224 (1966).
109 Id. at 226 (emphasis added).
1"o ld. at 230 (emphasis added).
M11
375 F.2d 621 (3d Cir. 1967).
112 297 F. Supp. 912 (N.D. 111. 1969).
214 ALBANY LAW REVIEW [Vol. 3 5
bors Act was not superseded or modified by the Water Quality Act of
1965.113
Another valuable tool used by the federal government against water pol-
lution is section 10 of the Federal Water Pollution Control Act." 4 The
Act provides a three-step enforcement procedure. The first step is the so-
called Federal Enforcement Conference. This is a conference called by
the Secretary of the Interior to work out appropriate remedial action. Par-
ticipants include official representatives of the water pollution control agen-
cies of the states concerned. If this action is not accomplished within six
months, a public hearing is held before a federal hearing board. Each
state thought to be contributing to the pollution, as well as each state claim-
ing to be adversely affected, is entitled to one member on this board. At
least one member shall be a representative of the Department of Com-
merce, but a majority of the hearing board shall be persons other than
officers or employees of the Department of Health, Education, and Welfare.
The hearing board makes recommendations to the Secretary concerning
measures which it finds will be "reasonable and equitable to secure abate-
ment of such pollution." 115 The Secretary must then send the findings and
recommendations to the alleged polluters who must be given a reasonable
time, not less than six months, to secure abatement.
The third step is court action brought on behalf of the United States to
secure abatement if the pollution is endangering persons in another state
and it has not been abated through the procedures outlined in the first two
steps. 116
The Water Quality Act of 1965 117 established water quality standards;
it was one of a number of amendments to the basic federal pollution legisla-
tion, the Federal Water Pollution Control Act of 1948.118 Under the pro-
cedure established by the Act for the setting of water quality standards on
interstate watercourses, each state, subject to the approval of the Secretary
of the Interior, adopts both "water quality criteria applicable to interstate
waters or portions thereof within such State" and "a plan for the implemen-
tation and enforcement of the water quality criteria adopted." I"
While the Federal Act is significant for its statement of public policy
and for its comprehensive approach to the evaluation of pollution data, it

1's 33 U.S.C. §§ 466-466k (Supp. IV, 1969).

114 33 U.S.C. § 466g (1964).
115 33 U.S.C. § 466g(f) (1964).
116 For a more detailed analysis of the procedure under the Federal Water Pollution
Control Act, see Pitts, The Interaction of the Federal and State Systems: The Experience in
the Central U. S., 3 NAT. RESOURCES LAWYER 26 (1970).
117 Pub. L. No. 89-234, 79 Stat. 903, enacting 33 U.S.C. §§ 466-1 and 466-c-i and
amending 33 U.S.C. §§ 466d,e,g,h,i (1964) (codified at 33 U.S.C. §§ 466-466k (Supp. IV,
1969)).
118 Ch. 758, 62 Stat. 1155.
11933 U.S.C. § 466g(c)(1) (Supp. IV, 1969). Water quality standards are of two
types: receiving water standards state the required condition of the stream, and effluent
standards specify the required characteristics of wastes to be discharged. 3 WATER AND
WATER RIGHTS § 2291, at 234-37 (R. Clark ed. 1967). The Federal Act provides for
quality criteria (receiving water standards) and enforcement plans (presumably effluent
standards).
1971] WATER POLLUTION 215
suffers from a weak enforcement mechanism. 2 ' Under the Act, the Secre-
tary of the Interior "may request" that the Attorney General initiate a law
suit against a polluter.' 2' When the damage from pollution occurs in the
same state as the discharges which cause it, the Secretary must obtain the
written consent of the Governor of that state. 22 In any event, he must
give polluters at least 180 days notice before initiating abatement action. 23
Even with their many shortcomings, the present federal statutes pro-
vide useful tools against water pollution. Public concern will continue to
prompt even stronger legislation to the extent that our present statutes are
not adequate. It is imperative that we arrive at solutions that will allow
industry to function while at the same time improving our environment.
Enforcing Anti-Pollution Laws
The statutes, precedents and agencies discussed above do not provide a
final solution to the problem of water pollution. Local, state, interstate
and federal agencies must cooperate to enforce water pollution laws.
"Most industries and municipalities do not move voluntarily but must be
prodded." '" The same statement could just as well have been made about
the agencies charged with enforcement of anti-pollution laws. Studies have
consistently found chronic nonenforcement, not the lack of desirable sub-
stantive regulation, to be the central characteristic of administrative agency
25
failure to protect the public interest.
It has been suggested that actions be brought against public officials for
failure to abate water pollution.12 A number of anti-pollution laws have
been pointed to which, for various reasons, are not being strictly enforced. 7
It has also been suggested that there may be a constitutional right to clean
air and water based upon the fifth, ninth and fourteenth amendments to the
United States Constitution. 2 In addition to direct actions against public
officials, the courts have been called upon to abandon "Judicial Mercantil-
ism and set out to redress the imbalance of the last two hundred years." 129
A statute which gives any private citizen the right to sue polluting in-
dustries on behalf of the general population was recently signed into law in
120 For a complete exposition of the enforcement mechanism of the Act, see 3 WATER
AND WATER RlGrrs, § 248, at 381-404 (R. Clark ed. 1967).
12133 U.S.C. § 466(g)(c)(5) (Supp. IV, 1969) as it authorizes action under § 466g(g)
(1-2) (Supp. IV, 1969).
122 33 U.S.C. § 466g(g) (2) (Supp. IV, 1969).
123 33 U.S.C. § 466g(c) (5) (Supp. IV, 1969) as it authorizes action under § 466g(g) (2)
(Supp. IV, 1969). For a discussion of a secondary effect of the Act, where it is sug-
gested that it might revivify private nuisance actions and thus help restore the quality
of our water, see Note, Water Quality Standards in Private Nuisance Actions, 79 YALE L.J.
102 (1969).
124 Enforcement Nowl, supra note 94, at 2.
125 Esposito, supra note 5, at 44. See also E. Cox, R. FALLMETH, J. SCHULTZ, THE
'NADER REPORT' ON THE FEDERAL TRADE COMMISSION (1969).
126 Esposito, supra note 5, at 41.
127Id., e.g., Oil Pollution Act, 33 U.S.C. H9 431-37 (1964); Federal Water Pollution
Control Act, 33 U.S.C. § 466a-k (1964); N.Y. PUB. HEALTH LAW §§ 1200-64 (McKinney
1954), as amended, (McKinney Supp. 1969).
128 Esposito, supra note 5, at 41.
120 Id. at 52.
216 ALBANY LAW REVIEW [Vol. 35
Michigan. 3 0 This statute and others like it are based upon the public trust
doctrine. One of the first cases to announce this doctrine was Illinois Cen-
tral Railroad v. Illinois 131 which held that public or private lands are held
in trust for the people of the state. This landmark decision applied to land
situated beneath navigable waters, but it has been argued that such things
as clean air and clean water are equally subject to such a trust.3 2 One
commentator has suggested that if the public trust doctrine is to provide a
satisfactory tool, it must meet three criteria. 13 3 It must contain some con-
cept of a legal right in the general public; it must be enforceable against
the government; 134 and it must be capable of an interpretation consistent
with contemporary concerns for environmental quality. It would appear
that the Michigan statute meets these criteria. 13 5 This is not surprising
when one realizes that University of Michigan Law Professor, Joseph L.
36
Sax, who suggested the criteria, was the bill's chief drafter.
A bill similar to the Michigan law has been introduced in the United
States Senate. 37 It has been reported that the legislators of Colorado, New
York, Massachusetts, Pennsylvania and Tennessee are considering versions
of the Michigan law. 138
One of the best devices for providing needed scrutiny is the watchful-
ness of the citizen, for it is he, in his own community, who will be victimized
if adequate precautions are not taken. Therefore, it is submitted that
statutes similar to Michigan's should be enacted throughout the nation.

Conclusion
"U. S. SURVEY WARNS OF IMPURE WATER"; "0 "RISE IN POLLUTION

130 H.B. 3055, Mich. Leg., 75th Legislature, Reg. Sess. (1970). Michigan Governor
William G. Milliken signed the act into law July 27, 1970 to take effect on October 1,
1970.
181 146 U.S. 387 (1892).
132 McCarthy, Recent Legal Developments in Environmental Defense, 19 BUFFALO L.
REV. 195, 203 (1969); Sax, The Public Trust Doctrine in Natural Resources Law: Effective
Judicial Intervention, 68 MICH. L. REv. 473, 474 (1970).
133 Sax, supra note 132, at 474.
134 In some cases a governmental agency or official is not sued directly. Instead, the
defendant may be a private party whom the government has inadequately regulated.
Furthermore, in many traditional public trust cases, the state was the plaintiff, and the
defendant was a private landowner, a local government, or a public agency. Such cases
are essential to understanding judicial approaches to the public trust but the implication
should not be drawn that there will be equal judicial hospitality to a privately initiated
suit. Id.
135 H.B. 3055, Mich. Leg., 75th Legislature, Reg. Sess., § 2 (1) (1970):
The attorney general, any political subdivision of the state, any instrumentality or agency
of the state or of a political subdivision thereof, any person, partnership, corporation,
association, organization or other legal entity may maintain an action in the circuit court
having jurisdiction where the alleged violation occurred or is likely to occur for
declaratory and equitable relief against the state, any political subdivision thereof, any
instrumentality or agency of the state or of a political subdivision thereof, any person,
partnership, corporation, association, organization or other legal entity for the protection
of the air, water and other natural resources and the public trust therein from pollution,
impairment or destruction.
186 The author wishes to thank Professor Sax for providing information on this statute.
137 S.3575, 91st Cong., 2d. Sess. (1970).
138 TIME, Aug. 24, 1970, at 37, col. 3.
139 N.Y. Times, Aug. 18, 1970, at 1, col. 1 (city ed.). "A government survey warned
1971] WATER POLLUTION 217
HELPING TO DRIVE MANY AMERICANS TO DRINK (BOTTLED WATER)." 140
Headlines such as these and the news stories that accompany them should
alert members of the public to the crisis that is at hand. It is one thing to be
concerned about pollution of our navigable waterways but when our sup-
ply of drinking water is threatened, the situation becomes critical.
There is no one method of reducing water pollution. A concerted effort
on the part of all individuals, municipalities, industries and branches of
government is necessary to keep the level of water pollution within livable
limits.
The statutes and precedents discussed above are only weapons to be
used in the continuing war to save our environment. The most potent
weapon in such a conflict is a concerned and well-informed populace. If
members of society are made aware of the potential injury that water
pollution may do to the health and welfare of mankind, the force of public
opinion may be felt by the major polluters of our environment. Public
opinion may be effective in encouraging our legislatures to enact statutes
giving private individuals the right to sue polluters for the public good.' 4 '
This right of private citizens to sue polluters for the public good is only
valuable if it is used. Determined polluters will probably prolong litigation
as long as possible. If they lose and pay damages or are enjoined from
continued polluting, the costs will be passed on to the consumer as an ex-
pense of doing business. Permanent injunctions could be the answer in
some situations but, as was shown, the courts are reluctant to grant them.
One method that might prove effective would be for members of the public
to unite in organizations such as the Scenic Hudson Preservation Con-
ference to concentrate on specific polluters or geographical areas. The
effectiveness of this type of organization was threatened recently by the
Internal Revenue Service. The Internal Revenue Service suspended the
issuance of new rulings granting tax exemptions to environmental organi-
zations for over a month and studied whether or not to revoke such exemp-
tions on existing groups.1 2 It was suggested that this was prompted by the
desire of the Nixon Administration to protect certain private business in-
terests. 4 3 Pressure was successfully applied by conservation, consumer-
protection and other interests to force the Internal Revenue Service to con-
tinue to grant tax-exempt status to organizaions that bring lawsuits in the
public interest."' The wisdom of such action should be evident in the near
future.

today that millions of Americans were drinking water of hazardous or inferior quality."
The study covered 18.2 million persons in Vermont and eight metropolitan areas. The
survey found that 900,000 person were receiving potentially dangerous water, some of it
containing excessive arsenic, lead or fecal bacteria. In addition, 2 million persons were
found to be drinking inferior water.
140 N.Y. Times, Aug. 23, 1970, at 45, col. 1.

141 See text accompanying note 130, supra.

142 N.Y. Times, Oct. 11, 1970, at 1, col. 1 (city ed.).
143 N.Y. Times, Oct. 9, 1970, at 1, col. 4 (city ed.).
144 N.Y. Times, Nov. 13, 1970, at 1, col. 6 (city ed.). The Natural Resources Defense
Council is one of the organizations that was temporarily denied tax-exempt status. For a
discussion of the impact of this decision on the Council and similar organizations; see
218 ALBANY LAW REVIEW [Vol. 35
A pollution-free environment should be strived for and nothing short of
perfection should be accepted. It is suggested that given sufficient time
and money, scientists can accomplish what may appear to be impossible.
There are few water pollution problems that modern technology cannot
conquer. The problem is to get industry to install the devices that are avail-
able.145 It is up to attorneys and legislators to prod industry and govern-
ment into using the best devices and methods that are available or at least
to provide the weapons to be used by members of the public.
PETER J. RYAN

Statement of Facts, a paper issued by the Natural Resources Defense Council, New York
City in October, 1970.
145 See Esposito, supra note 5, at 34, where an unidentified manufacturer of water
pollution control devices was quoted to illustrate the resistance of industry:
[W]e have found it very hard to place our equipment out in the field, mostly because
industries refuse to spend any money for this cause. The attitude toward cleaning
up the waste water is very negative and they feel that they are paying for something
in which there is no profit available to them. Therefore, when they are forced into doing
something about it, my opinion is that they are going to continue to stall, either by
pulling political strings or denying that there is any purification equipment available.