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Clean Water Act

The Clean Water Act is the primary federal law in the United States governing water pollution. Commonly abbreviated as the CWA, babydrinkingwater.jpgthe act established the goals of eliminating releases to water of high amounts of toxic substances, eliminating additional water pollution by 1985, and ensuring that surface waters would meet standards necessary for human sports and recreation by 1983.

The principal body of law currently in effect is based on the Federal Water Pollution Control Amendments of 1972, which significantly expanded and strengthened earlier legislation. Major amendments were enacted in the Clean Water Act of 1977 and the Water Quality Act of 1987.

Waters Protected Under the CWA

All waters with a "significant nexus" to "navigable waters" are covered under the CWA; however, the words "significant nexus" remains open to judicial interpretation and considerable controversy. Some regulations included water features such as intermittent streams, playa lakes, prairie potholes, sloughs and wetlands as "waters of the United States" The 1972 statute frequently uses the term "navigable waters," but also defines the term as "waters of the United States, including the territorial seas."

In 2006 the Supreme Court clarified that the term "waters of the United States":

...includes only those relatively permanent, standing or continuously flowing bodies of water "forming geographic features" that are described in ordinary parlance as "streams[,] ... oceans, rivers, [and] lakes."

Pollution control strategy in the CWA

Point sources

The 1972 act introduced a permit system for regulating point sources of pollution. Point sources include:

  • industrial facilities (including manufacturing, mining, oil and gas extraction, and service industries)
  • municipal governments and other government facilities (such as military bases), and
  • some agricultural facilities, such as animal feedlots.

Point sources may not discharge pollutants to surface waters without a permit from the National Pollutant Discharge Elimination System (NPDES). This system is managed by the U.S. EPA in partnership with state environmental agencies. EPA has authorized 46 states to issue permits directly to the discharging facilities. The CWA also allows tribes to issue permits, but no tribes have been authorized by EPA. In the remaining states and territories, the permits are issued by an EPA regional office.

In previous legislation, Congress had authorized states to develop water quality standards, which would limit discharges from facilities based on the characteristics of individual water bodies. However, these standards were only to be developed for interstate waters, and the science to support this process (i.e. data, methodology) was in the early stages of development. This system was not effective and there was no permit system in place to enforce the requirements. In the 1972 CWA Congress added the permit system and a requirement for technology-based effluent limitations

Technology-based standards

The 1972 CWA created a new requirement for technology-based standards for point source discharges. EPA develops these standards for categories of dischargers, based on the performance of pollution control technologies without regard to the conditions of a particular receiving water body. The intent of Congress was to create a "level playing field" by establishing a basic national discharge standard for all facilities within a category, using a "Best Available Technology." The standard becomes the minimum regulatory requirement in a permit. If the national standard is not sufficiently protective at a particular location, then water quality standards may be employed.

Water quality standards

The 1972 act authorized continued use of the water quality-based approach, but in coordination with the technology-based standards. After application of technology-based standards to a permit, if water quality is still impaired for the particular water body, then the permit agency (state or EPA) may add water quality-based limitations to that permit. The additional limitations are to be more stringent than the technology-based limitations and would require the permittee to install additional controls.

Nonpoint sources

Congress exempted some water pollution sources from the point source definition in the 1972 CWA, and was unclear on the status of some other sources. These sources were therefore considered to be nonpoint sources that were not subject to the permit program.

Agricultural stormwater discharges and irrigation return flows were specifically exempted from permit requirements. Congress, however, provided support for research, technical and financial assistance programs at the U.S. Department of Agriculture to improve runoff management practices on farms.

Stormwater runoff from industrial sources, municipal storm drains, and other sources were not specifically addressed in the 1972 law. stormwater.jpgEPA declined to include urban runoff and industrial stormwater discharges in the NPDES program and consequently was sued by an environmental group. The courts ruled that stormwater discharges must be covered by the permit program.

A growing body of water research during the late 1970s and 1980's indicated that stormwater runoff was a significant cause of water quality impairment in many parts of the U.S. In the early 1980s EPA conducted the Nationwide Urban Runoff Program (NURP) to document the extent of the urban stormwater problem. The agency began to develop regulations for stormwater permit coverage, but encountered resistance from industry and municipalities, and there were additional rounds of litigation. This litigation was pending when Congress considered further amendments to the Act in 1986.

In the Water Quality Act of 1987 (1987 WQA) Congress responded to the stormwater problem by requiring that industrial stormwater dischargers and municipal separate storm sewer systems (often called "MS4") obtain NPDES permits, by specific deadlines. The permit exemption for agricultural discharges continued, but Congress created a nonpoint source pollution demonstration grant program at EPA to expand the research and development of nonpoint controls and management practices.

To combat nonpoint source pollution, EPA initiated numerous programs and grants to aid the public in improving their local water quality. These programs are described at an EPA website, Watershed Central.

Financing of pollution controls

Congress created a major public works financing program for municipal sewage treatment in the 1972 CWA. A system of grants for construction of municipal sewage treatment plants was authorized and funded in Title II. In the initial program the federal portion of each grant was up to 75 percent of a facility's capital cost, with the remainder financed by the state. In subsequent amendments Congress reduced the federal proportion of the grants and in the 1987 WQA transitioned to a revolving loan program in Title VI. Industrial and other private facilities are required to finance their own treatment improvements on the "polluter pays" principle.

Major statutory provisions

The Act has six titles.

Title I - Research and Related Programs

Title I includes a Declaration of Goals and Policy and various grant authorizations for research programs and pollution control programs. Some of the programs authorized by the 1972 law are ongoing (e.g. section 104 research programs, section 106 pollution control programs, section 117 Chesapeake Bay Program) while other programs no longer receive funds from Congress and have been discontinued.

Title II - Grants for Construction of Treatment Works

To assist municipalities in creating or expanding sewage treatment plants, also known as publicly owned treatment works (POTW), Title II established a system of construction grants. This was replaced by the Clean Water State Revolving Fund in the 1987 WQA. See Title VI.

Title III - Standards and enforcement

Discharge permits required

Section 301 of the Act prohibits discharges to waters of the U.S. except with a permit. (See Title IV for discussion of permit programs.)

Technology-Based Standards Program

Under the 1972 act EPA began to issue technology-based standards for municipal and industrial sources.

  • Municipal sewage treatment plants (POTW) are required to meet secondary treatment standards.
  • Effluent guidelines (for existing sources) and New Source Performance Standards are issued for categories of industrial facilities discharging directly to surface waters.
  • Categorical Pretreatment Standards are issued to industrial users (also called "indirect dischargers") contributing wastes to POTW. These standards are developed in conjunction with the effluent guidelines program.

To date, the effluent guidelines and categorical pretreatment standards regulations have been published for 56 categories and apply to between 35,000 and 45,000 facilities that discharge directly to the nation's waters. These regulations are responsible for preventing the discharge of almost 700 billion pounds of pollutants each year. EPA has updated some categories since their initial promulgation and has added new categories.

The secondary treatment standards for POTWs and the effluent guidelines are implemented through NPDES permits. (See Title IV) The categorical pretreatment standards are typically implemented by POTWs through permits that they issue to their industrial users.

Water Quality Standards Program

Water quality standards (WQS) are risk-based (also called hazard-based) requirements which set site-specific allowable pollutant levels for individual water bodies, such as rivers, lakes, streams and wetlands. States set WQS by designating uses for the water body (e.g., recreation, water supply, aquatic life, agriculture) and applying water quality criteria (numeric pollutant concentrations and narrative requirements) to protect the designated uses. An antidegradation policy is also issued by each state to maintain and protect existing uses and high quality waters.

Water bodies that do not meet applicable water quality standards with technology-based controls alone are placed on the section 303(d) list of water bodies not meeting standards. Water bodies on the 303(d) list require development of a Total Maximum Daily Load (TMDL). A TMDL is a calculation of the maximum amount of a pollutant that a water body can receive and still meet WQS. The TMDL is determined after study of the specific properties of the water body and the pollutant sources that contribute to the non-compliant status. Generally, the TMDL determines load based on a Waste Load Allocation (WLA), Load Allocation (LA), and Margin of Safety (MOS) Once the TMDL assessment is completed and the maximum pollutant loading capacity defined, an implementation plan is developed that outlines the measures needed to reduce pollutant loading to the non-compliant water body, and bring it into compliance. Over 60,000 TMDLs are proposed or in development for U.S. waters in the next decade and a half.

Following the issuance of a TMDL for a water body, implementation of the requirements involves modification to NPDES permits for facilities discharging to the water body to meet the WLA allocated to the water body (see Title IV).

As of 2007, approximately half of the rivers, lakes, and bays under EPA oversight were not safe enough for fishing and swimming. The development of WQS and TMDL is a complex process, both scientifically and legally, and it is a resource-intensive process for state agencies.

National Water Quality Inventory

Section 305(b) requires EPA and the states to compile a biennial Report to Congress on the nation's water quality.

Enforcement

Under section 309, EPA can issue administrative orders against violators, and seek civil or criminal penalties when necessary.

  • For a first offense of criminal negligence, the minimum fine is $2,500, with a maximum of $25,000 fine per day of violation. A violator may also receive up to a year in jail. On a second offense, a maximum fine of $50,000 per day may be issued.
  • For a knowing endangerment violation, i.e. placing another person in imminent danger of death or serious bodily injury, a fine may be issued up to $250,000 and/or imprisonment up to 15 years for an individual, or up to $1,000,000 for an organization.

States that are authorized by EPA to administer the NPDES program must have authority to enforce permit requirements under their respective state laws.

Federal facilities

Military bases, national parks and other federal facilities must comply with CWA provisions.

Thermal pollution

Section 316 requires standards for thermal pollution discharges, as well as standards for cooling water intake structures. These standards are applicable to power plants and other industrial facilities.

Nonpoint Source Management Program

The 1987 amendments created the Nonpoint Sources Management Program under CWA section 319. This program provides grants to states, territories and Indian tribes to support demonstration projects, technology transfer, education, training, technical assistance and related activities designed to reduce nonpoint source pollution. Grant funding for the program averaged $210 million annually for Fiscal Years 2004 through 2008.

Title IV - Permits and licenses

State certification of compliance

States are required to certify that discharges authorized by federal permits will not violate the state's water quality standards.

NPDES permits for point sources

The NPDES permit program is authorized by CWA section 402. The initial permits issued in the 1970s and early 1980s focused on POTWs and industrial wastewater—typically "process" wastewater and cooling water where applicable, and in some cases, industrial stormwater. The 1987 WQA expanded the program to cover stormwater discharges explicitly, both from municipal separate storm sewer systems (MS4) and industrial sources. The MS4 NPDES permits require regulated municipalities to use Best Management Practices to reduce pollutants to the "Maximum Extent Practicable."

Non-stormwater permits typically include numeric effluent limitations for specific pollutants. A numeric limitation quantifies the maximum pollutant load or concentration allowed in the discharge, e.g. 30 mg/L of biochemical oxygen demand. Exceeding a numeric limitation constitutes a violation of the permit, and the discharger is subject to fines as laid out in section 309. Facilities must periodically monitor their effluent (i.e. collect and analyze wastewater samples), and submit Discharge Monitoring Reports to the appropriate agency, to demonstrate compliance. Stormwater permits typically require facilities to prepare a Stormwater Pollution Prevention Plan and implement best management practices, but do not specify numeric effluent limits and may not include regular monitoring requirements. Some permits cover both stormwater and non-stormwater discharges. NPDES permits must be reissued every five years. Permit agencies (EPA, states, tribes) must provide notice to the public of pending permits and provide an opportunity for public comment.

Dredge and Fill Exemptions

After passage of the CWA in 1972, a controversy arose as to its application to agriculture and certain other activities. The Act was interpreted by some to place restrictions on virtually all placement of dredged materials in wetlands and other waters of the United States, raising concern that the federal government was about to place all agricultural activities under the jurisdiction of the U.S. Army Corps of Engineers (USACE). For opponents of the Act, section 404 had, as a result of this concern, become a symbol of dramatic over-regulation. When Congress considered the 1977 CWA Amendments, a significant issue was to assure that certain agricultural activities and other selected activities, could continue without the government’s supervision—in other words, completely outside the regulatory or permit jurisdiction of any federal agency.

The 1977 amendments included a set of six section 404 exemptions. For example, totally new activities such as construction of farm roads, Sec. 1344(f)(1)(E), construction of farm or stock ponds or irrigation ditches, and minor agricultural drainage, Sec. 1344(f)(1)(A), all are exempted by Statute. Section 1344(f)(1)(C), which exempts discharge of dredged material “for the purpose of. . . the maintenance of drainage ditches.” All of these exemptions were envisioned to be self-executing, that is not technically requiring an administrative no-jurisdiction determination. One such example was the maintenance of agricultural drainage ditches. Throughout the hearing process, Congressmen of every environmental persuasion repeatedly stated that the over $5 Billion invested in drainage facilities could be maintained without government regulation of any kind. Senator Edmund Muskie, for example, explained that exempt activities such as agricultural drainage would be entirely unregulated. Other exemptions were granted as well, including exemptions for normal farming activities.

Importance of No-Jurisdiction Determinations

Despite the fact that Congress envisioned a set of self-executing exemptions, it has become common for landowners to seek no-jurisdiction determinations from the USACE. A landowner who intends to make substantial investments in acquisition or improvement of land might lawfully proceed with exempt activity, a permit not being required. The problem is that should the activity later be determined not exempt, the agency will issue a ceased and desist order. Obtaining an advanced ruling provides some level of comfort that the activities will have been deemed conducted in good faith.

Recapture of Exemptions

Because some of the six exemptions involved new activities, such as minor drainage and silviculture (the clearing of forests by the timber industry), Congress recognized the need to impose some limitations on exemptions. Consequently, Congress placed the so-called recapture clause limitation on these new project exemptions. Under section 404(f)(2), such new projects would be deprived of their exemption if all of the following three characteristics could be shown:

  1. A discharge of dredge or fill material in the navigable waters of the United States;
  2. The discharge is incidental to an activity having as its purpose the bringing of an area of navigable waters into a use to which it was not previously subject, and
  3. Where the flow or circulation of navigable waters may be impaired or the reach of such waters may be reduced.

To remove the exemption, all of these requirements must be fulfilled -- the discharge, the project purpose of bringing an area into a use to which it was not previously subject, and the impairment or reduction of navigable waters.

Dredge and fill permits (wetlands)

Under sections 301 and 502 of the Clean Water Act, any discharge of dredged or fill materials into "waters of the United States," including wetlands, is forbidden unless authorized by a permit issued by the USACE pursuant to section 404. Essentially, all discharges of fill or dredged material affecting the bottom elevation of a jurisdictional water of the U.S. require a permit from USACE. These permits are an essential part of protecting wetlands, which are often filled by land developers. Wetlands are vital to the ecosystem in filtering streams and rivers and providing habitat for wildlife.

Mountaintop removal mining requires a section 404 permit when soil and rock from the mining operation is placed in streams and wetlands (commonly called a "valley fill"). Pollutant discharges from valley fills to streams also requires an NPDES permit.

There are two main types of wetlands permits: general permits and individual permits. General permits change periodically and cover broad categories of activities, and require the user to comply with all stated conditions. General permits (such as the Nationwide Permits) are issued for fill activities that will result in minimal adverse effects to the environment. Individual permits are utilized for actions that are not addressed by a general permit, or that do not meet the conditions of a General Permit. In addition, individual permits typically require more analysis than do the general permits, and usually require much more time to prepare the application and to process the permit.

When the USACE processes an application for an Individual Permit, it must publish/issue a public notice (typically in the Federal Register) describing the proposed action described in the permit application. The public notice must be issued no later than fifteen days after the Corps determines the application to be complete. Although the Corps District Engineer makes the decision to grant a permit, the EPA Administrator may veto a permit if it is not reasonable. Before making such a decision, however, EPA must consult with the USACE. A wetlands permit expires after five years.

When a state wants a permit, they make sure that all other states being affected are aware they will be sent a copy of the request and the state is able to write a recommendation. A state permit also expires after five years.

POTW Biosolids Management Program

The 1987 WQA created a program for management of biosolids (sludge) generated by POTWs.

Title V - General Provisions

Citizen suits

Any U.S. citizens may file a citizen suit against a suspected CWA violator regardless of the EPA, USACE or a state's opinion.

Employee protection

The 1972 act added an employee ("whistleblower") protection provision. Employees in the U.S. who believe they were fired or suffered adverse action related to enforcement of the CWA may file a written complaint with the Occupational Safety and Health Administration.

Title VI - State Water Pollution Control Revolving Funds

The Clean Water State Revolving Fund (CWSRF) program was authorized by the 1987 WQA. This replaced the municipal construction grants program, which was authorized in the 1972 law under Title II. In the CWSRF, federal funds are provided to the states and Puerto Rico to capitalize their respective revolving funds, which are used to provide financial assistance (loans or grants) to local governments for wastewater treatment, nonpoint source pollution control and estuary protection.

The fund provides loans to municipalities at lower-than-market rates. As of 2007 the average rate was 2.1 percent nationwide, compared to an average market rate of 4.3 percent. In 2006, CWSRF assistance totaling $5 billion was provided to 1,858 local projects across the country.

Earlier legislation

Congress first addressed water pollution issues in the Rivers and Harbors Act of 1899. Portions of this law remain in effect, including the Refuse Act, while others have been superseded by various amendments, including the 1972 CWA.

Other notable predecessor legislation includes the following.

  • Public Health Service Act of 1912. Expanded the mission of the United States Public Health Service to study problems of sanitation, sewage and pollution.
  • Oil Pollution Act of 1924. Prohibited the intentional discharge or fuel oil into coastal waters. Repealed by 1972 CWA.
  • Federal Water Pollution Control Act of 1948. Created a comprehensive set of water quality programs that also provided some financing for state and local governments. Enforcement was limited to interstate waters. The Public Health Service provided financial and technical assistance.
  • Water Quality Act of 1965. Required states to issue water quality standards for interstate waters, and authorized the newly-created Federal Water Pollution Control Administration to set standards where states failed to do so.

Recent developments

Representative Frank Pallone introduced H.R. 1310, the Clean Water Protection Act, on March 4, 2009. The bill would amend the CWA by redfining the term, "fill material" to exclude "any pollutant discharged into the water primarily to dispose of waste." This amendment is intended to restrict the practice of mountaintop removal mining.

Senator Russell Feingold introduced S. 787, the "Clean Water Restoration Act," on April 2, 2009, to amend the CWA and clarify the jurisdiction of "waters of the United States." The intent of the bill is to restore protections for rivers, streams and wetlands that may be subject to question due to the recent Supreme Court rulings in SWANCC and Rapanos.



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