Water Quality Law Summary - CWA by Topic I



			Clean Water Act by Topic: Legislation, Regulations, and Cases Part 1 of 2 Adapted for BLM from: U.S. Environmental Protection Agency, Case Digest: Clean Water Act, Washington, DC: EPA, National Enforcement Training Institute, 1999 (Download printable PDF version of this document) I. Purpose and History of CWA Legislation 33 U.S.C. § 1251(a) – The CWA is intended to “maintain the chemical, physical, and biological integrity of the Nation’s waters.” Cases EPA v. National Crushed Stone Association, 449 U.S. 64 (1980) – Discussion of statutory framework of the CWA. Texas Oil and Gas Assoc. v. EPA, 161 F.3d 923 (5^th Cir. 1998) – Congress enacted the CWA and declared a national goal that the discharge of pollutants into the navigable waters be eliminated by 1985 (33 U.S.C. § 1251(a)(1)). It was designed to achieve this goal through a system of effluent limitations guidelines and National Pollutant Discharge Elimination System permits that set technology-based discharge limits for all categories and subcategories of water pollution point sources. EPA v. California, 426 U.S. 200 (1976) (superceded by statute)– Good summary of the history of the Act. Dubois v. U.S.D.A., 102 F.3d 1273 – The CWA “incorporated a broad systemic view of the goal of maintaining and improving water quality.” In contrast to NEPA’s focus on process, the CWA is substantive, focusing upon the “integrity of the Nation’s Waters, not the permit process.” Congressional History and Reports H.Rep. No 92-911, 92d Cong. 2d Sess. 76-77 (1972) – Subsection (a) of section 101 declares the objective of this legislation to be the restoration and maintenance of the chemical, physical, and biological integrity of the Nation’s waters. The word “integrity” as used is intended to convey a concept that refers to a condition in which the natural structure and function of the ecosystem is maintained. “A Legislative History of the Water Pollution Control Act Amendments of 1972,” Congressional Research Service, Library of Congress (January 1973), Serial No. 93-1, Committee Print. “A Legislative History of the Water Quality Act of 1987,” Congressional Research Services, Library of Congress (November 1988), Committee Print. II. “Navigable Waters” (§ 502(7)) Legislation 33 U.S.C. § 1362(7) – “navigable waters” means the waters of the United States, including the territorial seas. Regulations 40 C.F.R. § 122.2 – “Waters of the United States or water of the U.S. means: All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; All interstate waters, including interstate "wetlands;" All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, "wetlands," sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters: Which are or could be used by interstate or foreign travelers for recreational or other purposes; From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or Which are used or could be used for industrial purposes by industries in interstate commerce; (d) All impoundments of waters otherwise defined as waters of the United States under this definition; (e) Tributaries of waters identified in paragraphs (a) through (d) of this definition; (f) The territorial sea; and (g) ‘Wetlands’ adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) through (f) of this definition.” 53 Fed. Reg. 20765 (1988) – Preamble to EPA 404 regulations states that “it should be noted that we generally do not consider the following water to be ‘Waters of the United States’ [list omitted], however we reserve the right on a case-by-base basis to determine that a particular water body within these categories is water of the United States.” Cases International Paper Co. v. Ouellette, 479 U.S. 481 (1987) – Navigable waters has been construed expansively to cover waters that are not navigable in the traditional sense. United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) – Wetland adjacent to a navigable waterway is part of the waters of the U.S. United States v. TGR Corp., 171 F.3d 762 (2^nd Cir. 1999) – Held that a brook into which a slurry was discharged is waters of the U.S. The court rejected defendant’s argument that the brook is a “municipal storm sewer” and therefore not waters of the U.S. because testimony at trial showed that the brook was not “owned or operated” by a public body.] United States v. Edison, 108 F.3d 1336 (11^th Cir. 1997) – Held that it is “well established that Congress intended to regulate the discharge of pollutants into all waters that may eventually lead to waters affecting interstate commerce.” United States v. Wilson, 133 F.3d 251 (4^th Cir. 1997) – The court held that the Corps definition of wetlands which forbade activities that “could affect” interstate commerce, was invalid as it exceeded authority under the Commerce Clause. Quivira Mining Co. v. EPA, 765 F.2d 126 (10^th Cir. 1985) – Non-navigable creeks and “arroys” affect interstate commerce because during times of “intense rainfall” there could be a surface connection between these waterways and navigable streams. Treacy v. Newdunn Assocs., 344 F.3d 407 (4^th Cir. 2003) – Holding that COE jurisdiction under the CWA applies to any branch of a tributary system which eventually flows into a navigable body of water. United States v. Deaton, 332 F.3d 698 (4^th Cir. 2003) – Finding CWA jurisdiction over wetland adjacent to a roadside ditch that eventually connects to navigable-in-fact water 25 miles away. Cert. denied, 158 L.Ed.2d 466 (2004). United States v. Rapanos, 339 F.3d 447 (6^th Cir. 2003) – Finding CWA jurisdiction over wetlands 20 miles from navigable-in-fact waters. Cert. denied, 158 L.Ed.2d 467 (2004). III. “Person” (§ 502(5)) Legislation 33 U.S.C. § 1352(5) – “person” means an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a state, or any interstate body. Cases EPA v. California, 426 U.S. 200 (1976) – “Section 301(a) simply makes it ‘unlawful’ for ‘any person’ not to have the required permit. That Federal agencies, departments, and instrumentalities are not ‘persons’ within the meaning of section 301(a) does not mean that federal dischargers are not required to secure NPDES permits. A Federal discharger without a permit is no less out of compliance … than a nonfederal discharger; the Federal discharge is, however, not ‘unlawful’.” IV. “Pollutant” (§ 502(6)) Legislation 33 U.S.C. § 1362 (6) – “pollutant” means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. The term does not mean (A) ‘sewage from vessels’ within the meaning of section 1322 of this title; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources. V. Federal Facilities (§ 313) Legislation 33 U.S.C. § 1323 – Federal facilities provisions. Cases EPA v. California, 426 U.S. 200 (1976) – “Section 301(a) simply makes it ‘unlawful’ for ‘any person’ not to have the required permit. That federal agencies, departments, and instrumentalities are not ‘persons’ within the meaning of section 301(a) and the Amendments … does not mean either that federal dischargers are not required to secure NPDES permits, or that their obligation to secure an NPDES permit derives from a different provision of the Amendments. A federal discharger without a permit is no less out of compliance … than a nonfederal discharger; the federal discharge is however not ‘unlawful’.” Marble Mountain Audubon Society v. Rice, 914 F.2d 179 (9^th Cir. 1990) – The CWA requires the Forest Service to comply with all State water quality requirements. National Wildlife Federation v. Bureau of Land Management, No. EA A2-026-92-24 (Dept. of Interior, Interior Board of Land Appeals Nov. 18, 1996) – Administrative stay of proposed grazing based on potential impacts on “outstanding natural resource water.” VI. Indian Tribes Legislation 33 U.S.C. § 1377(a) - Indian tribes shall be treated as States for purposes of such section 1251(g) of this title. Regulations 40 C.F.R. Part 35, Subpart Q – General Assistance Grants to Indian Tribes. 40 C.F.R. § 130.6(d) – Water Quality Management Plans: Indian Tribes. 40 C.F.R. § 131.8 – Requirements for Indian Tribes to administer a water quality standards program. Cases Montana v. EPA, 137 F.3d 1135 (9^th Cir. 1998) – Under section 518 of the CWA, the EPA may authorize Indian tribes to set water quality standards that regulate activities of non-Indians who own property within reservations. VII. State Certification of Federal Permits (401 Certificate) Legislation 33 U.S.C. § 1341(a)(1) – “Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into navigable waters” shall obtain a certification for the State where the discharge originated “that any such discharges will comply with the applicable provisions of sections 301, 303, and 307” of the CWA. 33 U.S.C. § 1341(d) – State certifications shall “set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, standard of performance under section 1316 of this title, or prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirements of State law set forth in such certification ….” 33 U.S.C. § 1344(t) – “Nothing in [§ 404] shall preclude or deny the right of any State … to control the discharge of dredge or fill material in any portion of the navigable waters within the jurisdiction of such state ….” Regulations 40 C.F.R. § 124.55(e) – Review and appeals of limitations and conditions attributable to State certification shall be made through the applicable procedures in Part 124. Cases PUD No. 1 of Jefferson Co. v. Washington State Dept of Ecology, 511 U.S. 700 (1994) – Section 401 requires the State to assure compliance with state water quality standards in light of the permitted “activity” not just the “discharger”; thus Washington’s minimum stream flow requirement is a permissible condition of a section 401 certification. Citizens Interested in Bull Run v. R.L.K. & Co., 1998 U.S. App. LEXIS 3926 (9_^thCir. 1998) – Dismissal of suit against ski area for discharge of road salt upheld; held that salt in snow that runs off during spring is not an “activity” within the meaning of 401(a), so FS permit need not be certified. Oregon Natural Desert Ass’n v. Dombeck, 151 F.3d 945 (9^th Cir. 1998) – Held that 401 certification does not apply to nonpoint source pollutants, such as manure from grazing on public lands; distinguished dam cases (Consumers Power et al.) on grounds that dams are point sources but they don’t discharge pollutants. United States v. Marathon Dev. Corp., 867 F.2d 96 (1^st Cir. 1989) – If state determines that discharges from certain category of activity will not meet state water quality requirements, the Federal government is prohibited from authorizing the activity by Federal permit. VIII. State Jurisdiction – also see “Navigable Waters” Legislation 33 U.S.C. § 1370 – Except as where expressly provided, the CWA should not “be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.” IX. Point Sources A. “Point Source” (§ 502(14)) Legislation 33 U.S.C. § 1362(14) – “The term ‘point source’ means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural storm water discharges and return flows from irrigated agriculture.” Regulations 40 C.F.R. § 122.2 – “Point source means any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural storm water discharges and return flows from irrigated agriculture.” 40 C.F.R. § 122.23(a) – Concentrated animal feeding operations are point sources subject to the NPDES permit program. Cases Oregon Natural Desert Ass’n v. Dombeck, 151 F.3d 945 (9^th Cir. 1998) – Grazing cattle are not point sources. Newton County Wildlife Ass’n v. Rogers, 141 F.3d 803 (8^th Cir. 1998) – “EPA regulations do not include the logging and road building activities … in the narrow list of silvicultural activities that are point sources requiring NPDES permits.” Concerned Area Residents for the Environment v. Southveiw Farm, 34 F.3d 114 (2^nd Cir 1994) – Held that runoff from the fields to which manure from 700 cattle was applied was not nonpoint source runoff (i.e. is point source). Committee to Save Mokelumne River v. East Bay Municipal Utility Dist., 13 F.3d 305 (9^th Cir. 1993) – Spillway and valve of a dam that channels acid mine runoff from abandoned mine site is considered to be a point source. Oregon Natural Resource Council v. U.S. Forest Service, 834 F.2d 842 (9^th Cir. 1987) – Construction of logging road and bridge is not point source discharge subject to regulation. League of Wilderness Defenders v. Forsgren, 309 F.3d 1181 (9^th Cir. 2002) – Holding that the Forest Service’s aerial application of a pesticide to control the Douglas Fir Tussock Moth in Oregon and Washington was a point source discharge of pollutants into waters of the United States and, therefore, required an NPDES permit. B. “Discharge of Pollutants” Legislation 33 U.S.C. § 1362(12) – “The term ‘discharge of a pollutant’ and the term ‘discharge of pollutants’ each means (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.” Regulations 40 C.F.R. § 401.11(h) – “The term ‘discharge of a pollutant(s)’ means: (1) The addition of any pollutant to navigable waters from any point source and (2) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft. The term ‘discharge’ includes either the discharge of a single pollutant or the discharge of multiple pollutants.” Cases Miccosukee Tribe v. South Florida Water Management District, 280 F.3d 1364 (11^th Cir. 2002), cert. granted __ U.S. __ (June 27, 2003) – Whether diversion of water from runoff canal into another water where point source does not add the pollutant is “addition of a pollutant from a point source.” Friends of the Everglades, Inc. v. Southern Florida Water Management District, Case No: 02-80309-CIV-ALTONGA/Bandstra, 2003 U.S. Dist. Lexis 13827 (S.D. Fl. Jul. 1, 2003) – Staying proceedings involving whether back pumping requires a permit until Miccosukee is decided. Northern Plains Res. Council v. Fidelity Development & Exploration Co., F3d 1155 (9^th Cir. April 10, 2003) – Discharge of groundwater into surface water constituted discharge of pollutants. C. NPDES Permits Legislation 33 U.S.C. § 1342(a)(1) – “[T]he Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants … upon condition that such discharge will meet either (A) all applicable requirements [of the Act], or (B) prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this chapter.” 33 U.S.C. § 1342(a)(2) – “The Administrator shall prescribe conditions for such permits to assure compliance with the requirements of paragraph (1) of this subsection, including conditions on data and information collection, reporting, and such other requirements as he deems appropriate.” 33 U.S.C. § 1342(b) – State permit programs. Regulations 40 C.F.R. § 122.6 – Continuation of Expiring Permits. 40 C.F.R. § 122.47 – Schedules of Compliance. 40 C.F.R. § 122.3 – Activities not requiring NPDES permit. 40 C.F.R. § 122.62 – Modification or revocation and reissuance of permits. 40 C.F.R. § 122.4 – Conditions under which no NPDES permit may be issued. D. Effluent Guidelines (§ 304(b)) Legislation 33 U.S.C. § 1314(b) – Requires the EPA to issue “regulations providing guidelines for effluent limitations.” 33 U.S.C. § 1314 (m)(1)(C) – Requires the EPA to identify and categorize all point sources warranting effluent guidelines. Regulations 40 C.F.R. § 125.3(c) – Methods of imposing technology-based treatment requirements in permits. Cases EPA v. National Crushed Stone Association, 449 U.S. 64 (1980) – Discusses the basis of effluent guidelines to limit the discharge of pollutants. DuPont v. Train, 430 U.S. 112 (1977) – Upheld the EPA’s authority to promulgate effluent guidelines under § 301 and § 304. Texas Oil & Gas Assoc. v. EPA, 161 F.3d 923 (5^th Cir. 1998) – The CWA was designed to achieve its goals of cleaning the nation’s waters through a system of effluent limit guidelines and NPDES permits. American Paper Institute v. EPA, 996 F.2d 346 (D.C. Cir. 1993) – The “rubber hits the road” only when effluent limit guidelines are incorporated into NPDES permits. Carr v. Alta Verde Industries, Inc., 931 F.2d 1055 (5^th Cir. 1991) – “Among other conditions, an NPDES permit must incorporate effluent limitations for point sources based on guidelines ‘promulgated by EPA on an industry-by-industry basis … .’ The guidelines do not specify the use of a particular technology; rather they establish effluent limitations that can be achieved only through the use of a certain quality of technology.” E. Best Available Technology (“BAT”) Legislation 33 U.S.C. § 1314(b)(2)(A) – By 1983 “effluent limitations for categories and classes of point sources” are to be achieved which will require “application of the best available technology economically achievable for such category or class.” 33 U.S.C. § 1314(b)(2)(B) – “Factors relating to the assessment of best available technology shall take into account the age of equipment and facilities involved, the techniques, process changes, the cost of achieving such effluent reductions, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate …” Regulations 40 C.F.R. § 125.3(d)(3) – The EPA shall take into account (or apply) certain factors in making a BAT determination, including “the age of equipment and facilities involved.” Cases EPA v. National Crushed Stone Association, 449 U.S. 64 (1980) – “In assessing BAT, total cost is [not] to be considered in comparison to effluent reduction benefits.” F. Best Practicable Technology (BPT) Legislation 33 U.S.C. § 1311(b)(1) – BPT. Cases Texas Oil & Gas Assoc. v. EPA, 161 F3d 923 (5th Cir. 1998) – “BPT” is the CWA’s least stringent standard. G. New Sources Legislation 33 U.S.C. § 1306(a)(2) – “New source” means “any source, the construction of which is commenced after the publication of proposed regulations prescribing a standard of performance under this section which will be applicable to such source, if such standard is thereafter promulgated in accordance with this section.” Regulations 40 C.F.R. § 122.2 – “New Source means any building, structure, facility, or installation from which there is or may be a “discharge of pollutants,: the construction of which commenced: (a) After promulgation of standards of performance under section 306 of the CWA which are applicable to such source, or (b) After proposal of standards of performance in accordance with section 306 of the CWA which are applicable to such sources, but only if the standards are promulgated in accordance with section 306 within 120 days of their proposal.” 40 C.F.R. § 122.29(b) – Definition of new sources for purposes of preparing environmental assessments. H. Effluent Limitations (§ 502(11)) Legislation 33 U.S.C. § 1362 (11) – “effluent limitation” is “any restriction … on quantities, rates, and concentration of chemical, physical, biological, and other constituents which are discharged from point sources ….” Cases Texas Oil & Gas Assoc. v. EPA, 161 F3d 923 (5^th Cir. 1998) – Effluent limitations described in 502(11) are “technology-based rather than harm-based; that is, they reflect the capabilities of available pollution control technologies to prevent or limit different discharges rather than the impact that those discharges have on the waters.” X. Toxic Pollution Regulations 40 C.F.R. § 125.3(c)(4) – Limits may be expressed, where appropriate, in terms of toxicity. 40 C.F.R. § 129 – Toxic Pollutant Effluent Standards. XI. Publicly Owned Treatment Works (POTWs) Legislation 33 U.S.C. § 1311(b)(1)(B) – POTWs shall meet secondary treatment standards by July 1, 1977. Regulations 40 C.F.R. § 122.2 – “Publicly owned treatment works (POTW) means any device or system used in the treatment (including recycling and reclamation) of municipal sewage or industrial wastes of a liquid nature which is owned by a ‘State’ or ‘municipality.’ This definition includes sewers, pipes, or other conveyances only if they convey wastewater to a POTW providing treatment.” A. Pretreatment Legislation 33 U.S.C. § 1317(b) – Pretreatment authority. 33 U.S.C. § 1342(a)(3) and (b)(8) – Authority to delegate to municipalities. 33 U.S.C. § 1319(f) – Wrongful introduction of pollutants into treatment works. Regulations 40 C.F.R. Part 403 – General Pretreatment Regulation for Existing and New Sources of Pollution. B. Secondary Treatment Standards Regulations 40 C.F.R. Part 133 – Secondary Treatment Regulation. Part 2
	For Information or comments contact: Eric Hecox eric_hecox@blm.gov