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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 those programs to states and tribes. The 1977 law and several subsequent amendments also established funding mechanisms for construction of sewage treatment plants.
Clean Water Act
Key Concepts Pollutants Point Source Nonpoint Source Navigable Waters or Waters of the U.S. Water Quality Standards Water Quality Certification Who's in Charge? Water Quality Trading Process Essentials: NPDES Permits Discharges Requiring a Permit NPDES Permit Content Discharge of Effluent Limits Process Essentials: Section 404 Dredge and Fill Permits Kinds of Permits Wetlands Process Essentials: TMDLs Process Essentials: Public Involvement Notice, Comments and Hearings National Environmental Policy Act Citizen Suits Collaboration in Action Watershed Groups Collaborative Groups and the CWA Clean Water Act Legislation of the 111th Congress Links Key ConceptsPollutantsPollutants 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 SourceUnder 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 SourceA "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:
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. 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. 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:
Water Quality Standards
Water Quality Data
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. The National STORET Data Warehouse is EPA's Internet-available repository of water quality data. Commonly used WQS designations include:
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 CertificationSection 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
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. EPA has published four case studies highlighting the accomplishments of tribes that have adopted EPA-approved water quality standards:
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 TradingWater 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.
Process Essentials: NPDES PermitsThe 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 PermitWater TransfersIn 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. NPDES Permit ContentAgencies 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
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, reporting that 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 PermitsSection 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:
Kinds of PermitsThere 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 CBM water, the Corps prepared an environmental assessment, but violated NEPA by failing to consider:
Similarly, 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. WetlandsWetlands generally include swamps, marshes, bogs and similar areas, and are called "jurisdictional wetlands" if the Corps has authority to require a 404 permit for discharge of dredged or fill material into the area. The Corps' technical definition of "wetlands" is:
Under the 404 program, no discharge of dredged or fill material can he 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:
For additional guidance on wetland 404 permits, see EPA's section 404(b)(1) guidelines. For the 2008 rules on compensatory mitigation, see EPA's Compensatory Mitigation webpage. For analyses of the U.S. Supreme Court's recent decisions concerning wetlands federal regulatory authority, see "Courting Disaster: How the Supreme Court Has Broken the Clean Water Act and Why Congress Must Fix It" (April, 2009) and the Environmental Law Institute's "Anchoring the Clean Water Act: Congress's Constitutional Sources of Power to Protect the Nation's Waters," (free, but requires registration to download). See discussion below of pending legislation to address the confusion resulting from the Supreme Court decisions. Several other reports, summarized here, describe the risks to fish and wildlife if more protective legislation is not enacted.
Process Essentials: TMDLs
"Daily" means "daily"
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. 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. 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:
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.
Process Essentials: Public InvolvementThe 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 HearingsThe act requires states to provide many formal opportunities for public participation ranging from:
National Environmental Policy ActPublic 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 SuitsLike 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 ActionWatershed GroupsA 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.
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 CWASeveral of the collaborative groups described in Collaborative Stories are dealing with CWA issues. For example:
Clean Water Act Legislation of the 111th CongressH.R. 1310, introduced on March 4, 2009, would amend the Federal Water Pollution Control Act to clarify that fill material cannot be comprised of waste.S. 787, introduced by Sen. Feingold (D-Wisc.) on April 2, 2009, would replace the phrase "navigable waters" with "waters of the United States" in the Clean Water Act, restoring federal wetland regulatory efforts hampered by two recent Supreme Court decisions, the 2006 Rapanos-Carabell and the 2001 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. In May, 2009, the Obama Administration delivered a letter to Congress expressing support for wetlands protection, though not explicit endorsement of this bill. For an opinion piece supporting this legislation, see "Clearing up the Clean Water Act," Denver Post, 10/4/09. The legislation cleared the Senate Environment and Public Works Committee by a 12-7 margin in June 2009, but its companion bill has not yet been introduced in the House of Represnetnatives. See "Clean water fix may not be navigable in 2010," E&E, 1/21/10. LinksPublic LawsClean 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 >> RegulationsEPA 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 >> AgenciesEnvironmental Protection AgencyThe 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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