The Clean Water Act is the primary federal law in the United States governing water pollution. Commonly abbreviated as the CWA, the act established the symbolic 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 enacted by the 95th United States Congress and the Water Quality Act of 1987 enacted by the 100th United States Congress.
Determining what wetlands and streams are protected by the Clean Water Act is a critically important task for concerned citizens, property owners, and government officials. Waters that are unprotected by federal law may risk impairment of many important values—including drinking water supplies, beneficial uses of water by property owners, fish and wildlife habitat, and resilience to flood hazards. Clean Water Act Jurisdictional Handbook, Environmental Law Institute (2007). P 9. The Act asserts jurisdiction over the "navigable waters" of the United States, however the statutory definition of that phrase is much broader than the common usage would imply.
Congress chose to define the waters covered by the Act broadly. Although the Act prohibits discharges into "navigable waters," see CWA §§ 301(a), 404(a), 502(12), 33 U.S.C. §§ 1311(a), 1344(a), 1362(12), the Act's definition of "navigable waters" as "the waters of the United States" makes it clear that the term "navigable" as used in the Act is of limited import. In adopting this definition of "navigable waters," Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed "navigable" under the classical understanding of that term. See S.Conf.Rep. No. 92-1236, p. 144 (1972); 118 Cong.Rec. 33756- 33757 (1972). United States v. Riverside Bayview Homes, 474 U.S. 271 (1985).
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 United States Environmental Protection Agency (EPA) in partnership with state environmental agencies. EPA has authorized 45 states to issue permits directly to the discharging facilities. 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.
Agricultural stormwater discharges and irrigation return flows were specifically exempted from permit requirements. Congress, however, provided support for research 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. EPA declined to include urban 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 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.
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 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 bodies that are repeatedly out of compliance with the applicable water quality standards are subject to a Total Maximum Daily Load. A Total Maximum Daily Load (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. 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 water quality standard or TMDL for a water body, implementation of the requirements involves modification to NPDES permits for facilities discharging to the water body (see Title IV).
While the effluent guidelines have been largely successful, because they apply to specific sources and are enforceable, the WQS have been much less so. As of 2007, approximately half of the rivers, lakes, and bays under EPA oversight were not safe enough for fishing and swimming.
States that are authorized by EPA to administer the NPDES program must have authority to enforce permit requirements under their respective state laws.
NPDES permits must be reissued every five years. Permit agencies (EPA and states) must provide notice to the public of pending permits and provide an opportunity for public comment.
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. 4 Legislative History 906. 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. 4 Legislative History 906-912. Senator Muskie, for example explained that exempt activities such as agricultural drainage would be entirely unregulated: Id., Page 949. 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 US Army Corps of Engineers. 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.
There are two main types of 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 (generally) require more analysis than do the general permits, and typically require much more time to prepare the application and to process the permit.
When the Corps processes an application for an Individual Permit, the Corps 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 District Engineer makes the decision to grant a permit, this authority is usually delegated to is granted or not the Administrator is able to take-away permits if they feel that the permit is not reasonable; before making this decision though the Administrator must consult with the secretary. A permit expires after five years of being granted.
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 of being granted.
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.
Other notable predecessor legislation includes the following.
THE CLEAN WATER ACT AFTER 37 YEARS: RECOMMITTING TO PROTECTION OF NATION'S WATERS; CHAIRMAN OBERSTAR'S AND SUBCOMMITTEE CHAIR JOHNSON'S OPENING STATEMENTS FROM TODAY'S SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT HEARING.
Oct 15, 2009; WASHINGTON -- The following information was released by the House Committee on Transportation and Infrastructure: Chairman...
Governor Quinn Launches $1 Billion Clean Water Initiative U.S. EPA Administrator Lisa Jackson Joins Governor on 40th Anniversary of Clean Water Act to Announce Major Water Infrastructure Overhaul
Oct 18, 2012; CHICAGO -- The following information was released by the Illinois Government News Network: Governor Pat Quinn was joined by...