Clean Water Act

Posted: Apr 14, 2010

The Clean Water Act (CWA) is the common name for the 1977 amendments to the Federal Water Pollution Control Act of 1972 (FWPCA). The objective of the CWA is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. The 1977 law continued the FWPCA requirements to set water quality standards for all surface waters. It also established the basic structure for regulating discharges of pollutants into the waters of the United States and for addressing problems of nonpoint source pollution. The CWA gave the Environmental Protection Agency (EPA) authority to implement pollution control programs and to delegate the authority to do so to states and Indian tribes. The 1977 law and several subsequent amendments also established funding mechanisms for construction of sewage treatment plants.

For an overview of the statute, see Congressional Research Service, Clean Water Act: Summary of the Law (2012).

Key Concepts

Pollutants

Pollutants controlled by the CWA include garbage, sewage, dredged spoil, incinerator residue, chemical waste, biological materials, heat, radioactive materials, sand, rock, and industrial, municipal and agricultural waste. Because "pollutant" is so broadly defined, most activities that directly discharge materials into water bodies are regulated by the CWA. Whether or not the CWA regulates a particular discharge depends, however, on whether it is from a point or nonpoint source and what type of water body is affected. 

Point Source

Under the CWA, EPA is required to control discharges of pollutants from "point sources" into "navigable waters." "Point sources" include what would typically be considered confined and discrete conveyances for water—pipes, ditches, channels, tunnels, wells, conduits and containers. Under the CWA "point source" also includes some less obvious "conveyances" including boats, discrete fissures, and concentrated animal feeding operations. Agricultural storm water discharges and return flow from irrigated agriculture are specifically excluded from the definition of "point source" so EPA has little regulatory control of these significant sources of water pollution. The CWA controls point sources of pollution through the NPDES permit system.

See Essentials: NPDES Permits for more information. 

Nonpoint Source

A "nonpoint source" of water pollution is not defined in the Act, but is simply any source of pollution not included as a point source. The most common nonpoint source pollutants are nutrients (phosphorus and nitrogen), pathogens (from animal and human feces), sediments, oil and grease, salt, and pesticides. According to EPA, nonpoint source pollution is the most significant source of pollution in the country. More miles of rivers and acres of lakes are impaired by overland runoff from farming, livestock pasturing, and other types of nonpoint sources than by industrial and municipal point sources. 

The distinction between point and nonpoint sources is important because the CWA did not give EPA direct authority to regulate nonpoint sources. Section 319 of the CWA did, however, create a federal program that provides money to states and tribes for programs to reduce pollution from nonpoint sources. To receive 319 funds, states and tribes must:

  • identify waters that are impaired or threatened by nonpoint sources of pollution,
  • develop short- and long-term goals for cleaning them up, and
  • identify the best management practices (BMP) they expect to use for cleanup. 
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Watershed Kit

The Watershed and Wetland Protection Information Kit for County Officials is a collection of resources that can assist county and local officials with efforts to protect and restore the multiple benefits of their community’s water resources.   The kit includes materials on watershed planning, restoration and protection, wetland protection and urban forestry.

The kit is available from the Center for Watershed Protection 

EPA provides grants to approved nonpoint source programs to implement their management programs. The states often pass on 319 funds to local efforts. Section 319 grant funds can also be used for ground water quality protection activities. 

EPA's Nonpoint Source Web page includes general information on nonpoint source pollution, and many links to publications, educational resources, funding sources and success stories. The EPA also maintains a website specific to Indian Tribes interested in obtaining federal funds to manage nonpoint source pollution under section 319(h) of the Clean Water Act. Resources include a Handbook for Developing and Managing Tribal Nonpoint Source Pollution Programs (2010).

Another good source of information on nonpoint source pollution control is the California State Water Resources Control Board's NPS Encyclopedia.

The EPA is seeking input on strategies to protect waterways from nonpoint source pollution in preparation for a conference. See program summaries and submitted comments at "Coming Together for Clean Water."

Navigable Waters or Waters of the U.S.

There has always been some confusion over which water bodies are covered by the CWA. The CWA requires permits for discharge of pollutants or discharges of dredged or fill materials into "navigable waters." The CWA defines "navigable waters" as "waters of the United States, including the territorial seas." But "waters of the United States" is not specifically defined in the CWA. Court decisions, regulations and agency policies have established that "waters of the United States" applies only to surface waters, not ground water, including rivers, lakes, estuaries, coastal waters, and some wetlands. In inland areas, those waters include:

  • All interstate waters;
  • Intrastate waters used in interstate and/or foreign commerce;
  • Tributaries of the above; and
  • Wetlands adjacent to all the above.

The law is less clear in regard to smaller streams, ephemeral water bodies, and wetlands not adjacent to other waters of the United States. While ground water is not included as a navigable water, discharges to ground water, directly connected to a surface water, are sometimes included in NPDES permits. 

Water Quality Standards

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EPA, the states and tribes must establish water quality standards (WQS) for individual stream segments, lakes and other waters in order to translate the broad goals of the CWA into objectives and requirements for specific waters. A WQS includes:

  • Designated use (DU) or goal for the water body—for example, use of the water for drinking water supply, water-based recreation, warm or cold water fish habitat or agriculture;
  • Water quality criteria (WQC) necessary to support the intended use—for example, a maximum concentration of pollutants, a temperature range or a limit on turbidity acceptable for water-based recreation; and
  • Anti-degradation provisions—policies that prevent agencies from allowing activities that significantly degrade water quality.

Water Quality Data 
The National STORET Data Warehouse is EPA's Internet-available repository of water quality data. Commonly used WQS designations include: 

  • Drinking water
    • treated
    • untreated
  • Water-based recreation
    • Noncontact
    • short-term
    • long-term
  • Fishing/eating
  • Aquatic life
    • Warm water species/habitat
    • Cold water species/habitat
  • Agriculture water supply
  • Industrial water supply

Because of the overall objective of the CWA, agencies have to designate all water bodies as "fishable and swimable" unless it would be impractical to reach this goal. Agencies can consider economic factors when setting the designated use for a water body, but cannot factor in economics when developing the criteria needed to protect a designated use. 

If water quality monitoring indicates that the WQS are being met, the agency uses anti-degradation policies and programs to keep the water clean. If the water body is not meeting WQS, the agency must develop a strategy for meeting the standards. 

Water Quality Certification

Section 401 of the CWA requires that federal agencies issuing licenses or permits for construction or other activities get a written certification that the activity will not cause or contribute to a violation of the state or tribe's water quality standards. After receiving the certification, the federal agency issuing the permit must include conditions in the permit to prevent the project from degrading water quality of a downstream state or tribe. The CWA's 401 certification requirement applies to many types of permits and is an important tool for states and tribes to control projects that might degrade state waters. 401 certification is necessary for 404 permits issued by the Army Corps of Engineers, EPA-issued NPDES permits, Federal Energy Regulatory Commission (FERC)-issued licenses for private hydropower dams, and many other types of permits. 


401 Certifications for Dams

The Supreme Court has upheld the right of states to require 401 water quality certifications for dam discharges - moving water from one side of a dam to the other. The court decided the issue in S.D. Warren Co. v. Maine Board of Environmental Protection.S.D. Warren, a paper company with five dams in Maine, argued that its operations do not produce a "discharge" that could be regulated, but the Supreme Court upheld a decision by the Maine Supreme Judicial Court that state approval was needed.

Who's in Charge?

Case Studies in Tribal Water Quality Standards Programs
EPA has published four case studies highlighting the accomplishments of tribes that have adopted EPA-approved water quality standards:

  • Hoopa Valley Tribe,
  • Sokaogon Chippewa Community,
  • Hualapai Tribe, and
  • Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation.

These case studies provide background information on the tribes, describe the steps the tribes took to develop EPA-approved water quality standards, and discuss how water quality standards have benefited the tribes.

The Environmental Protection Agency (EPA) is the federal agency responsible for administering most of the CWA. The exception is that the Army Corps of Engineers has principal authority for the section 404 permitting program. States and tribes can, however, develop programs to implement parts of the Act. Many states and a few tribes have EPA-approved programs—they have "primacy"—to issue NPDES permits under section 402. Only a few states have authority to issue dredge and fill permits under section 404. Tribes can be treated as states regarding water resources held by the tribe, held in trust for Indians by the U.S. government, held by a tribal member, or within the borders of an Indian reservation. EPA retains oversight authority over individual permits issued by both states and tribes and can withdraw approval of all or part of their programs if they fail to enforce the CWA. EPA also has veto authority over 404 permits issued by the Corps of Engineers. 


For additional information on EPA and the Corps of Engineers and their authorities and duties, see Links at the end of the CWA section. 

EPA provides training on many water quality issues. For webcast training on many issues, including webcasts and audio instruction at EPA's Watershed Academy

Water Quality Trading

Water quality credit trading is a market-based approach that offers incentives to farmers and ranchers who implement conservation practices that improve water quality. While reducing pollution, they can earn credits they can trade with industrial or municipal facilities that are required by the Clean Water Act and other laws to reduce the amounts of pollution in wastewater. Trading is based on the fact that sources in a watershed can face very different costs to control the same pollutant. Trading programs allow facilities facing higher pollution control costs to meet their regulatory obligations by purchasing environmentally equivalent (or superior) pollution reductions from another source at lower cost. The goal is to achieve the same water quality improvement at lower overall cost.
 
The Water Quality Trading Toolkit for Permit Writers provides tools to incorporate trading provisions into required permits. The guide is focused on trading nitrogen and phosphorus, but other pollutants may be considered for trading on a case-by-case basis. The Toolkit discusses the fundamental concepts of designing and implementing trading programs including the relevant geographic scope, effluent limitations and other factors involved in defining a credit. The document also includes a set of appendices which feature detailed case studies based on actual trading programs. 

For more information, see the EPA Water Quality Trading web page or the following publications. 

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Click to download this Conservation Technoology Information Center report

Click to download the toolkit  

Click to download this Environmental Protection Agency report

 

Process Essentials: NPDES Permits

The CWA protects U.S. waters in large part through the National Pollutant Discharge Elimination System (NPDES) permit program. This program, established by section 402 of the CWA, controls discharge of pollutants from point sources into surface waters. The program is implemented by either EPA or state or tribal governments. NPDES permits set limits on the amount of various pollutants that a point source can discharge into a water body in a specific time period. 

Discharges Requiring a Permit

Water Transfers

In the wake of controversy surrounding the transfer of polluted water within basins, EPA issued a final rule clarifying that water transfers are not subject to NPDES permitting.  The rule applies to transfers that convey or connect waters without subjecting the water to intervening industrial, municipal or commercial use. 
Certain kinds of discharges that seem to meet the definition of a "point" source do not require an NPDES permit because they have statutory or administrative (EPA) exemptions. These include:

See the June 13, 2008 Federal Register for a copy of the rule.

In most cases, the NPDES permitting program applies only to direct discharges of "pollutants" to "navigable waters" from "point sources." (All of these special terms are defined in CWA: Key Concepts section.) Most discharges that fit this definition are clear-cut—no one would dispute that, under the CWA, a discharge of chemical waste from a pipe into a flowing stream should be covered by a permit. But some discharges covered by the permitting system are not so obvious—for example, discharges of storm water runoff from industrial activities, light industry and manufacturing facilities, and many construction areas of greater than one acre in size, require NPDES permits. Discharges to ground water, directly connected to a surface water, are sometimes included in NPDES permits. 

In a closely watched case in Oregon (Northwest Environmental Defense Center v. Brown, 640 F.3d 1062 (2011)), the Ninth Circuit Court of Appeals ruled that dirt, rock, and sand washing off of logging roads into drainage ditches that discharge to streams is a form of pollution that requires a permit under the Clean Water Act. This decision reversed a ruling by a federal district court judge that stormwater runoff from logging roads was a nonpoint source of pollution pursuant to the EPA "Silvicultural Exemption" rule, and thus exempt from the NPDES permit requirement. The key distinction for the Ninth Circuit was that the runoff had been collected into ditches and drainage pipes and thus was converted from nonpoint source to point source pollution, regardless of the EPA rule. Timber industry groups and 26 states filed briefs with the U.S. Supreme Court, urging reversal. In May 2012, the EPA issued a proposed rule stating that discharges from logging roads would not require a permit (reasoning that they are not included in the definition of "stormwater discharge associated with industrial activity), in an apparent move to convince the high court not to take the appeal. The EPA finalized the rule on Nov. 30, 2012, just days before the oral arguments on the case (Decker v. NEDC) before the U.S. Supreme Court. On March 20, 2013, the U.S. Supreme Court reversed the Ninth Circuit's decision, ruling that the EPA's interpretation was entitled to judicial deference. 

  • Click here for the Supreme Court's decision.

 

 

NPDES Permit Content

 

To find best management practices related to NPDES permit content for oil and gas development, see the Intermountain West Oil and Gas BMP project website.

Agencies can issue individual permits for specific discharges or create general permits to cover similar types of facilities or discharges. Individual NPDES permits must include:

  • Discharge or effluent limits—see further details below
  • Best management practices
  • Compliance schedules 
  • Monitoring requirements
  • Reporting requirements
  • Standard permit conditions—like "reopener clauses" to allow reevaluation of permit conditions as new site circumstances arise.

In a decision issued on April 1, 2009, the U.S. Supreme Court ruled in Entergy v. Riverkeeper that the EPA may (but is not required to) consider whether protecting fish and other aquatic creatures is worth the cost of the most advanced upgrades for older power plants to minimize harm to fish and shellfish sucked into the systems that draw water in to cool machinery. The EPA estimated that such systems in more than 500 older facilities kill 3.4 billion fish and shellfish each year; closed cooling systems in newer plants reportedly reduce mortality by 98 percent. Environmentalists supported regulations to require upgrades to bring all of the older systems up to the modern standards, arguing this is contemplated by the Clean Water Act's mandate for remedies that "reflect the best technology available for minimizing adverse environmental impact," but the Court ruled that this did not preclude the agency from applying a cost-benefit analysis before requiring such upgrades. 

Discharge or Effluent Limits

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Click to download the report 

An effluent limit is a numeric, measurable concentration or value for a specific pollutant discharged into the nation's waters. NPDES permit discharge limits are often expressed as a concentration (for example, mg/L) plus an allowed volume of discharge. Or, limits can be expressed as mass discharged per unit time. The type of effluent limits included in a permit depends on:

  • the pollutants,
  • whether they are discharged from a new or an existing source, and
  • whether they are directly discharged to a water body or will be processed through a treatment plant first.

In nearly all situations, treatment is necessary prior to discharge by industrial facilities. Effluent limits can be technology based or water quality based, but they are all performance standards—the permittee is free to use any combination of process modification, recycling, end-of-pipe treatment, or other strategies to meet them. For industrial facilities, effluent limits are typically technology-based and set for the specific industry. EPA establishes these limits and publishes them in the Code of Federal Regulations. Agencies add water quality-based limits to permits when the technology-based effluent limits are not stringent enough to meet the WQS (to protect the designated use of the receiving waters). 

For additional information on NPDES permitting, go to EPA Web pages and EPA's CWA regulations through Links at the end of this section. 

On November 28, 2008, the EPA issued a proposed regulation to strengthen the NPDES permit program that regulates stormwater discharges from construction and development sites. The proposed technology-based Effluent Limits Guidelines and New Source Performance Standards would impact all construction sites one acre or larger covered by a construction NPDES permit. This rulemaking follows an earlier effort to develop discharge regulations from construction and development sites, which EPA proposed in 2002 and then withdrew in 2004.  A federal lawsuit filed by the Natural Resources Defense Council resulted in a court order requiring EPA to promulgate the rules now under review.

In September 2009, the New York Times reviewed Clean Water Act enforcement actions in all 50 states, reportingthat in many states, more than half of regulated facilities violated the Clean Water Act, but enforcement actions against polluters were infrequent. A follow-up story in November 2009 highlighted water quality problems related to stormwater discharge.

Process Essentials: Section 404 Dredge and Fill Permits

Section 404 of the CWA created a special permitting program to regulate discharge of dredged and fill material into wetlands and other "waters of the United States." The Army Corps of Engineers (the Corps) is principally responsible for issuing permits under this program. As in the case of the NPDES permitting program, it is perfectly clear that the CWA requires a 404 permit for some activities—for example, when a developer wants to place fill material in a lake in order to create dry land for a commercial or residential development. Many situations are not as clear-cut. Many of the controversies over 404 permits involve whether the discharge area qualifies as a wetland, and is subject to regulation; some disputes have been over whether the activity is actually a "discharge" of dredged material. In addition, the CWA exempts some discharges of dredge and fill material from the regulations. Exempt activities include:

  • normal farming, forestry and ranching activities,
  • maintenance and reconstruction of many water structures (dams, dikes, etc.),
  • construction and maintenance of farm and forest roads, and
  • activities associated with certain state-approved programs.

On December 30, 2008, the Corps and EPA issued issued a final rule revising the definition of "discharge of dredged material." Specifically, the new rule excludes "incidental fallback" from regulation, without defining that term. Deciding when a particular redeposit of dredged material is subject to Clean Water Act jurisdiction entails a case-by-case evaluation, consistent with federal Clean Water Act authorities and governing case law.

In April 2012, the Fifth Circuit Court of Appeals held that the Clean Water Act does not allow citizen suits to enforce provisions of a Section 404 permit. Atchafalaya Basinkeeper v. Chustz (No. 11-30471, 5th Cir., 4/25/12)

For an overview of regulations concerning "fill material" and and "discharge of fill material," see Congressional Research Service, "Controversies Over Redefining 'Fill Material' Under the Clean Water Act" (2012). For information on how a loophole in Section 404 allows dumping of materials generated in hardrock mining, with a focus on the impacts on Native communities, see National Wildlife Federation's 2013 report Honoring the River: How Hardrock Mining Impacts Tribal Communities.

Kinds of Permits

There are two types of permits for discharge of dredge and fill materials: 

Individual permits are usually issued for larger, more complicated projects. The Corps issues an individual permit after it conducts a full public interest review of an individual application. The Corps coordinates with federal, state and local resource agencies and tribes, distributes a public notice to all known interested persons, and evaluates all comments and information it receives. In the permitting process, the Corps evaluates proposed projects for compliance with the CWA, and all other federal environmental laws such as the National Environmental Policy Act, Endangered Species Act, and Historic Preservation Act. Standard individual permits are normally issued in less than 120 days, but processing of applications for complex projects with controversial environmental impacts often requires several months to complete. Even after the Corps review, EPA can veto issuance of a permit—deciding that the activity would have unacceptable adverse effects on municipal water supplies, fisheries, wildlife or recreation. Project vetoes are rare—an example was EPA's veto of the Two Forks dam project near Denver in 1990. 

General permits are issued for categories of activities expected to cause only minimal environmental damage. The Corps can issue a general permit on a state, regional or nationwide basis for any category of activity that discharges dredged or fill material. To be covered by a general permit, activities in the category must be similar in nature, and cause only minimal adverse environmental effects on both an individual and cumulative basis. Nationwide general permits are currently available for 44 separate types of activities ranging from bank stabilization and wetland restoration projects, to oil and gas development and mining activities, to agricultural and recreational activities. Regional general permits authorize activities with regional similarities. General permits are "pre-issued" permits—some require users of the permit to get a letter of authorization from the Corps before starting work on a project, others do not. 

General permits struck down

In developing a general permit frequently used in Wyoming for disposal of coalbed methane (CBM) water, the Corps prepared an environmental assessment, but violated NEPA by failing to consider:

  • Cumulative impacts to non-wetland resources; and
  • Potential impacts to ranchlands held by private surface owners with no rights to the minerals; and
  • That mitigation measures might not be implemented or monitored.

See, Wyoming Outdoor Council, Powder River Basin Resources Council v. U.S. Army Corp of Engineers (D. Wyo. 2005).

A federal judge ruled that the Corps violated NEPA and the CWA when it decided in 2007 to issue a nationwide permit authorizing the discharge of dredged and fill material associated with surface coal mining activities including mountaintop mining. See discussion of Ohio Valley Environmental Coalition v. Hurst, No. 3:03-2281 (S.D. W. Va. Mar. 31, 2009) in "Judge voids easier WV mountaintop mining permits," Forbes, 4/1/09.

 

Wetlands

Wetlands generally include swamps, marshes, bogs and similar areas, and are called "jurisdictional wetlands" if the U.S. Army Corps of Engineers has authority to require a 404 permit for discharge of dredged or fill material into the area. The scope of federal authority to regulate activities that may impact wetlands has been the focus of judicial decisions, legislative action, and a great deal of commentary.

ph.cleanwater.jpgrpt.cwa.imptreasures.jpgTo start with, what is a wetland? According to a summary provided in the EIP report, a wetland is an area with have the hydrology, wetland-dependent vegetation, and soil types associated with water-saturated conditions. But some kinds of wetlands are dry during some periods. An area can still be a jurisdictional wetland if its vegetation and soils indicate that wet conditions often occur and hydrological data support this conclusion.

Under the Clean Water Act 404 program, no discharge of dredged or fill material is permitted into a wetland if it would significantly degrade the nation's waters or if there is a practical alternative to the discharge that is less damaging to the aquatic environment. To be approved, wetland fill projects must:

  • Take steps to avoid wetland impacts where practicable;
  • Minimize potential impacts to wetlands when the impacts can't be avoided entirely; and
  • Provide compensation for any remaining, unavoidable impacts.

Controversial new compensatory mitigation rules (April 2008) establish a mitigation hierarchy. The regulations require developers to first offset wetland losses by purchasing credits from a mitigation bank. If such credits are not available, developers can pay into an "in-lieu fee" program. Only if these programs are not available in their area would developers be required to restore degraded wetlands or create new wetlands at on-site or off-site locations. 

The U.S. Supreme Court did not clarify matters in several recent decisions interpreting the scope of federal regulatory authority related to wetlands. For example, in Rapanos v. United States, 547 U.S. 715 (2006), the Court examined the question of authority over wetlands associated with tributaries or seasonal waterways. The case resulted in five opinions, none of which reflected a majority of the Justices. Two other important decisions related to federal jurisdication over wetlands include Solid Waste Auth. of Northern Cook County v. U.S. Army Corps of Engineers (2001) and U.S. v. Riverside Bayview Homes (1985).

There is a great deal of commentary on the U.S. Supreme Court's decisions on this topic. See, for example:

In response to the judicial confusion, the agencies with jurisdicational authority over wetlands launched an effort to update and add detail to the policy guidance documents. In early December of 2008, the Corps and the EPA issued new guidelines for identifying wetlands,
defining protected waters as those that are determined to be
navigable-in-fact by the courts, are currently being used or have
historically been used for commercial navigation, or could realistically
be used for commercial navigation in the future. The guidelines
clarified what constitutes a protected, adjacent wetland, noting that a
wetland must have an unbroken hydrologic connection to jurisdictional
waters, be separated from those waters by a berm or similar barrier or
be reasonably close to a jurisdictional water. 

In 2010, the EPA sent draft guidelines to the Office of Management and Budget for review. Under the draft Guidance to Identify Waters Protected by the Clean Water Act (which would not have the force of regulation and thus is not binding on the EPA, the Corps, or the regulated community), the following waters would be subject to CWA jurisdiction:

  • Traditional navigable waters;
  • Interstate waters;
  • Wetlands adjacent to either traditional navigable waters or interstate waters:
  • Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning at least seasonal; and
  • Wetlands that directly abut relatively permanent waters.

In addition, the following waters would subject to CWA jurisdiction if a fact-specific analysis determines they have a “significant nexus” to a traditional navigable water or interstate water:

  • Tributaries to traditional navigable waters or interstate waters;
  • Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters;
  • Waters that fall under the “other waters” category of the regulations.

The following aquatic areas would generally not be subject to CWA jurisdiction as waters of the United States:

  • Wet areas that are not tributaries or open waters or do not meet the agencies’ regulatory definition of “wetlands”;
  • Waters excluded from coverage under the CWA by existing regulations;
  • Waters that lack a “significant nexus” where one is required for a water to be subject to CWA jurisdiction;
  • Artificially irrigated areas that would revert to upland should irrigation cease;
  • Artificial
    lakes or ponds created by excavating and/or diking dry land and used
    exclusively for such purposes as stock watering, irrigation, settling
    basins, or rice growing;
  • Artificial reflecting pools or swimming pools created by excavating and/or diking dry land;
  • Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic purposes;
  • Water-filled depressions created incidental to construction activity.

On April 27, 2011, the White House issued a revised version of the guidance document, titled the Clean Water Framework, which pulls back somewhat on the administration's announced intentions to strengthen wetlands and waterways protection. In contrast to the 2010 draft outlined above, the new policy emphasizes its nonbinding nature rather than its expansive reach, and explains that the full policy will be developed through regulations.

In November 2011, Republican leaders in Congress urged the EPA to withdraw the draft guidance, urging a "more robust" evaluation of the economic impacts of such regulatory action. Several bills were introduced in the 112th Congress (e.g. H.R. 4304; S. 2245)) to clarify the definition legislatively or to prohibit the EPA from finalizing the guidance document, but none passed.

In February 2013, several environmental groups renewed calls for the EPA and the Corps to finalize the guidance document, which remained stalled in the Office of Management and Budget for more than a year. Shortly thereafter, in a congressional hearing, the head of the Army Corps of Engineers told lawmakers that the administration is moving straight to rulemaking and may scrap the policy guidance due to political opposition. For a commentary on the status of the guidance, see Holly Doremus, "What's holding up the Clean Water Act jurisdictional guidance?" Legal Planet, 5/20/13.

In the meantime, on June 28, 2011 the U.S. Supreme Court agreed to take another look at the EPA's authority to issue compliance orders under the Clean Water Act in a matter involving a landowner's construction activities in wetlands without obtaining a permit from the EPA. The Ninth Circuit ruled that the landowner was not entitled to challenge the agency's determination that the affected land was a wetland subject to CWA permitting, because such an opportunity would arise when the EPA subsequently commenced an enforcement procedure. In March 2012, the Supreme Court reversed the Ninth Circuit opinion (Sackett v. EPA), ruling that the compliance order was final agency action for which there was no adequate remedy other than Administrative Procedure Act review, and that the CWA did not preclude that review. For an analysis of the implications of this decision, see this Legal Planet article.

 

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Click to download this U.S. Fish and Wildlife Service wetlands report (.pdf)   Click to download this Environmental Protection Agency report (.pdf)

Process Essentials: TMDLs

 

"Daily" means "daily" 

In Friends of the Earth v. EPA, involving pollution of the Anacostia River near Washington D.C., the D.C. Circuit Court of Appeals, told EPA that "Daily means daily, nothing else." 

EPA had approved annual and seasonal limits, rather than more stringent daily limits, on a couple of pollutants being discharged into the Anacostia River, one of the 10 most polluted rivers in the country. The court decided that EPA's action was "arbitrary and capricious" and that Congress clearly required daily discharge limits to control pollution. If EPA believes that using seasonal or annual loads is more appropriate in some circumstances, then it must either amend its regulations designating all pollutants as "suitable" for daily loads or take it to Congress.

If monitoring indicates that a water body is exceeding its WQS for one or more parameters, then that water is considered "impaired" and the state must put the water body on its 303(d) list. The 303(d) or TMDL (total maximum daily load) list is named for the section of the CWA that requires states and tribes to create lists of impaired waters and then to develop strategies to improve the quality of these waters to meet their standards. Nutrients, pathogens and sediments are the three pollutants most frequently exceeded despite the technology-based controls imposed through NPDES permits. 

After a water body is listed, the water quality agency must create a TMDL or "pollutant budget" for each specific pollutant exceeding the WQS in a particular water body. The agency determines the "allowable load" or "pollutant cap" for each pollutant. The agency then allocates the total pollutant load among various sources of the pollutant:

  • Nonpoint sources—usually a whole category of activities like a certain type of farming operation;
  • Individual point sources;
  • Reserve capacity—how much of the allowed load should be saved for future growth and development;
  • Background—the contribution from natural or otherwise uncontrollable sources; and
  • Margin of safety—to take into account uncertainties associated with estimating the acceptable cap or load, which is usually derived with a computer model.

EPA then reviews the agency's 303(d) and load allocations. If EPA approves it, the agency incorporates the load allocations into its plan for improving water quality and meeting the WQS. The plan might include reducing allowable discharges in existing NPDES permits, providing grants for implementing best management practices to reduce nonpoint source contributions, or other strategies. 

EPA's TMDL Web page includes policy documents, technical support documents, national or individual state report on TMDLs.  In December of 2008, EPA published a draft "Handbook for Developing Watershed TMDLs," which is available for public comment through February 18, 2009. The draft document identifies the issues for practitioners to consider and tools and resources that can help them when planning for and developing watershed TMDLs. The draft document also identifies the benefits of developing watershed TMDLs, as well as the challenges and ways to address them. The draft document includes examples, tips, and resources provided to further support TMDL practitioners in understanding how to develop watershed TMDLs to cost-effectively develop allocations to restore their impaired waters. Finally, the draft document evaluates the connections between watershed TMDLs and other water programs and identifies opportunities for integrating watershed TMDLs and their results into other watershed management efforts, such as monitoring, watershed planning, watershed-based permitting and water quality trading. 

 rpt.cwa.waterqualinventory.jpg To access the full report, click here . 

Process Essentials: Public Involvement

The CWA calls for EPA and the states to encourage and assist the public to participate in development and enforcement of regulations, effluent limitations, and plans for restoring and maintaining the quality of the nation's water. 

Notice, Comments and Hearings

The act requires states to provide many formal opportunities for public participation ranging from:

  1. reviewing and providing comments on documents and plans, to
  2. consulting with the agencies on development of regulations and water quality standards, to
  3. participating in public hearings on a wide variety of program activities.

Public hearings are held to inform many state, Corps, and EPA activities regarding:

  1. State 401 water quality certifications;
  2. NPDES permits;
  3. EPA corrective actions regarding state programs;
  4. 404 permits for discharge of dredge or fill material;
  5. EPA vetoes of Corps permits; and
  6. General 404 permits.

While these are the minimum requirements of the CWA, many states have developed their own, more extensive—and more collaborative—opportunities for public participation in water quality protection programs. For more information on both formal and informal public participation in water quality programs, see Links: Agencies at the end of the CWA section. 

National Environmental Policy Act

Public participation in water quality programs through public hearings, comments and work groups is especially important because most EPA actions required by the CWA—like approving state programs or water quality standards or issuing most NPDES permits—are not covered by the National Environmental Policy Act (NEPA). With only a couple of exceptions, the CWA says that these actions are not "major federal actions," so NEPA does not require analysis of their impacts. Corps actions regarding section 404 permits must comply with NEPA. The Corps prepares an environmental assessment or impact statement before issuing either a nationwide or individual permit. 

Citizen Suits

Like many environmental statutes, the CWA also gives the public an opportunity to participate through the court system. Citizen suits have been used to enforce NPDES permits, storm water discharge permits, state water quality standards, TMDLs, and various permit conditions. "Citizen" is very broadly defined as anyone who has an interest that may be adversely affected. So just about anyone that can claim an injury can bring a suit in federal court against EPA, state agencies, corporations, and individuals to force agencies to enforce the law or to stop pollution. "Injury" can include hurting someone's aesthetic or recreational interests in a certain water body. Citizens can also sue EPA for failure to do something that it has a duty to do. Some suits fail because there are limitations on suing state agencies (because of sovereign immunity) and because EPA cannot be sued for failure to do something that it has discretion to do—like vetoing a permit. If a suit is successful, penalties are paid to the U.S. Treasury rather than to the citizen plaintiffs, but the court may award attorneys fees and other costs of litigation to the winning party. Sometimes cases are settled out of court with agreements that the defendants will pay for projects, called supplemental environmental projects, that benefit the community. 

Citizens' groups can also petition the EPA to include set water quality standards for substances that previously have not been regulated. After providing 60 days' notice, the group may file an action in federal court. For example, in January 2010, several environmental groups petitioned the EPA to set standards for endocrine-disrupting chemicals, which have been linked to sexual abnormalities in fish and wildlife and to cancer, birth defects, and fertility problems in humans.

Collaboration in Action

Watershed Groups

A watershed is an area of land that drains to the same water body—such as a stream, lake, estuary, wetland, or ultimately the ocean. Within that area, "all living things are inextricably linked by their common water course" and "simple logic demand[s] that they become part of a community." (John Wesley Powell) 

Watershed groups are the most numerous and among the most important types of collaborative groups in the West. Hundreds of watershed groups across the West use consensus-based processes to tackle a variety of water—mostly water quality and mostly nonpoint source—related problems. 

ph.cleanwater_handbook.jpg

Click to access the handbook for developing watershed plans A draft handbook is available to help in developing watershed plans to meet water quality standards and protect water resources. 

EPA's Watershed Information Network provides on-line tutorials on watershed issues (the On-line Watershed Academy) and information on individual watersheds (Surf Your Watershed). 

Collaborative Groups and the CWA

Several of the collaborative groups described in Collaborative Stories are dealing with CWA issues. For example:

  • The Riudoso River Association (RRA) works high in the Sacramento Mountains of south-central New Mexico. The goal of the group is to preserve and protect a healthy and free-flowing Rio Ruidoso by improving both the quality and quantity of water in the river and restoring its high-quality cold water fishery. RRA is working to reduce nonpoint source pollution (sediment) from an upstream ski area, establish TMDLs on the River, and deal with nutrient loading from area septic systems.
  • The Stillwater Mine Good Neighbor Agreement outlines a framework for involving local communities in monitoring and reducing impacts from the Stillwater palladium mine. The collaborative effort has netted baseline water studies for the area and stricter water pollution limits for both the Stillwater and East Boulder rivers.
  • The Feather River Coordinated Resource Management (CRM) group is a partnership of 22 public and private groups that formed in 1985 to collectively improve watershed health in the upper Feather River Watershed. The group has used CWA 319 funds to support field studies, on-the-ground projects and monitoring.

 

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Image courtesy of the Environmental Protection Agency and Lane Council of Governments

Clean Water Act Legislation of the 113th Congress

New information will be added as the Congress takes action.

Links

Public Laws

Clean Water Act of 1977 (CWA)
Public Law 95-217, as amended, 33 U.S.C. sections 1251 to 1387. For a copy of the act as amended, see EPA Region 5's Website.
READ MORE >>
  

Regulations

EPA Clean Water Act Regulations
(40 CFR Part 130)
READ MORE >>
 
EPA's Wetlands Regulations
This EPA Web page provides links to laws, regulations, executive orders, guidance documents and scientific documents on wetlands.
READ MORE >>
 
Army Corps of Engineers Dredge and Fill Regulations
(33 CFR Parts 320-328)
READ MORE >>
 
EPA 404(b)(1) guidelines
for disposal of dredged and fill material in wetlands (40 CFR Part 230)
READ MORE >>

Agencies

Environmental Protection Agency
The Wetlands, Oceans and Watershed Programs Web page provides a wealth of information on water quality topics, wetlands, watershed groups, and CWA programs. 
READ MORE >>
 
EPA Region 5's Web page provides a brief history and introduction to the CWA, a pdf version of the act, and a user-friendly "Introduction to the CWA" in the form of a training module. 
READ MORE >>
 
Army Corps of Engineers Regulatory Program
The Corps Web page provides information on its regulatory programs.
READ MORE >>
 
Colorado Department of Public Health and Environment Water Quality Control Commission
The Colorado Department of Public Health and Environment, Water Quality Control Commission is an example of one of many state's agencies responsible for implementing the CWA program. The Colorado Water Quality Control Commission develops policy and regulations under the Colorado's version of the CWA. The Commission's Website includes general information about the Commission, information on meetings and hearings, and other water quality materials. The site includes a handbook on public participation.
READ MORE >>

 

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