Clean Water Act by Topic:
Legislation, Regulations, and Cases

Part 2 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)

XII. Water Quality Standards

A. General

Legislation
33 U.S.C. § 131 – Water quality standards and implementation plans.

Regulations
40 C.F.R. Parts 130 and 131 – Water Quality Planning and Management and Water Quality Standards.

Cases

• PUD No 1 of Jefferson Co. v. Washington State Dept of Ecology, 511 U.S. 700 (1994) – State “water quality standards provide ‘a supplemental basis … so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels.’”
• Sierra Club v. Union Oil Co. of Calif., 813 F.2d 1480 (9^th Cir. 1987), vacated on other grounds, 485 U.S. 931 (1988) – “States establish water quality standards that specify the uses to be made of a body of water and the maximum levels of pollutants allowable in view of those uses. Water quality standards are designated to ensure the survival of wildlife in navigable waters and to protect recreational activities in and on the water … Water quality-based limitations relate to the environmental effects of different effluent levels.”
• Northwest Indian Cemetery Protective Ass’n v. Peterson, 565 F. Supp. 586 (N.D. Cal. 1983) – Under section 33, Federal agencies must comply with state water quality standards.

B. Antidegradation

Legislation
33 U.S.C. § 1313(c) – Statutory authority for antidegradation regulations.

33 U.S.C. § 131(d)(4)(B) – Water quality standards may be revised only where consistent with antidegradation policy.

Regulations
40 C.F.R. § 122.4(i) – No permit shall be issued to a new source or new discharger where the discharge will cause or contribute to violations of water quality standards unless applicant can prove the TMDL provides a sufficient load allocation and no net decrease in water quality will result.

40 C.F.R. § 131.12 – Antidegradation Policy.

Cases

C. Designated Uses

Regulations
40 C.F.R. § 131.10 – Designation of Uses.

Cases

• PUD No 1 of Jefferson Co. v. Washington State Dept of Ecology, 511 U.S. 700 (1994) – “A state water quality standard ‘shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.’”
• Miccosukee Tribe of Indians of Fl. v. EPA, 105 F.3d 599 (11^th Cir. 1997) – “The Administrator must determine whether [state] standards are scientifically defensible and protective of designated uses.”
• Natural Resources Defense Council, Inc. v. EPA, 16 F.3d 1395 (4^th Cir. 1993) – “[T]he following three factors are considered when adopting or evaluating a water quality standard: (1) one or more designated uses of the states involved; (2) certain water quality criteria, expressed as numeric pollutant concentration levels or narrative statements representing a quality of water that supports a particular designated uses; and (3) an antidegradation policy to protect existing uses and high quality waters.”
  

D. EPA Review of State Standards

Legislation
33 U.S.C. § 1313(c) – Review; revised standards; publication.

Regulations
40 C.F.R. § 131.5(a) – “Under section 303(c) of the Act, the EPA is to review and to approve or disapprove State-adopted water quality standards …”

40 C.F.R. § 131.6 – Minimum requirements for water quality standards submissions.

40 C.F.R. § 131.21(c) – “A State water quality standard remains in effect, even though disapproved by EPA, until the State revises it or the EPA promulgates a rule that supersedes the State water quality standard.”

Cases

• National Wildlife Federation v. Browner, 127 F.3d 1126 (D.C. Cir. 1997) – EPA’s state water quality standards review provision, required only that the EPA review state revisions, not existing state standards.
• Natural Resources Defense Council v. EPA, 16 F.3d 1395 (4^th Cir. 1993) – States have the primary role in establishing water quality standards, and the EPA’s sole function is to review those standards for approval and determine whether the state’s decisions are scientifically defensible and protective of designated uses.
• Northwest Environmental Advocates v. EPA, 268 F. Supp 2d 1265 (D. Or. March 31, 2003) – The EPA has a nondiscretionary duty to promulgate water temperature criteria for the Williamette River in place of inadequate state standards.

E. “Fishable, Swimmable”

Legislation
33 U.S.C. § 1251(a)(2) – “it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983.”

Cases

• Natural Resources Defense Council v. EPA, 16 F.3d 1395 (4^th Cir. 1993) – Each submission by a state of its water quality standards to the EPA for approval must “contain six elements … (6) general information to assist the EPA in determining the adequacy of the scientific basis for standards that do not include the ‘fishable/swimmable’ uses …”

F. State Authority

Legislation
33 U.S.C. § 131.11(b)(1)(ii) – States may not impose standards that are less strict than federal standards, but nothing in the CWA shall limit the state’s authority to promulgate water quality standards that are stricter than minimum federal standards.

33 U.S.C. § 1344(t) – “Nothing in [§ 404] shall preclude or deny the right of any state … to control the discharge of dredged or fill material in any portion of the navigable waters within the jurisdiction or such State ….”

Cases

• New Hanover Township v. Corps of Engineers, 992 F.2d 470 (3^rd Cir. 1993) – “Pennsylvania is empowered by the Clean Water Act to set more stringent water quality standards than those set by the Act and its regulations.”
• United States v. Marathon Development Corp., 867 F.2d 96 (1^st Cir. 1989) – States may deny certification of a nationwide wetland permit in order to enforce their more stringent water quality standards.

G. Impaired Water Bodies (§ 303(d))

Legislation
33 U.S.C. § 1313(d) – “Each State shall identify those waters within its boundaries for which the effluent limitations required by section 1311(b)(1)(A) and section 1311(b)(1)(B) of this title are not stringent enough to implement any water quality standard applicable to such waters.”

Regulations
40 C.F.R. Part 130 – Water Quality Planning and Management.

Cases

• Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517 (9^th Cir. 1995) - Held that section 303(d) allows the EPA to establish TMDLs for water contaminated with toxic pollutants without prior development of BAT limitations; distinguished with NRDC v. EPA holding that dealt only with the question of whether waters contaminated by toxics had to be listed under section 303(d), not whether they may be listed.
• Natural Resources Defense Council v. EPA, 915 F.2d 1314 (9^th Cir. 1990) – “Section 1313(d) … requires States to identify only those waters for which limitations based on the best practicable technology would not be stringent enough to implement the water quality standards. Those waters for which limitations based on the more demanding best available technology – the required level of technology to control toxics – were insufficient and did not have to be listed.”

H. TMDLs

Legislation
33 U.S.C. § 1313(d)(1)(C) – Required each state to develop total maximum daily loads (TMDLs) for each water body that cannot meet water quality standards after point sources are subjected to technology-based effluent standards.

Regulations
40 C.F.R. § 122.4(i) – No permit shall be issues to a new source or new discharger where the discharge will cause or contribute to violations of water quality standards unless applicant can prove the TMDL provides a sufficient load allocation and no net decrease in water quality will result.

40 C.F.R. § 130.2(i) – Total maximum daily load (TMDL). The sum of the individual WLAs for point sources and LAs for nonpoint sources and natural background. If a receiving water has only one point source discharger, the TMDL is the sum of that point source WLA plus the LAs for any nonpoint sources of pollution and natural background sources, tributaries, or adjacent segments. TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measure. If Best Management Practices (BMPs) or other nonpoint source pollution controls make more stringent load allocations practicable, then wasteload allocations can be less stringent. Thus, the TMDL process provides for nonpoint control trade-offs.

40 C.F.R. § 1307 – Total maximum daily loads and individual water quality-based effluent limitations.

Cases

• Friends of Wild Swan v. EPA, No 00-36001, 2003 LEXIS 15271 (9^th Cir. July, 2003) – Upholding district court’s order for the EPA to establish TMDLs according to schedule.
  
• Miccosukee Tribe v. United States, 105 F.3d 599 (11^th Cir. 1997) – Applying § 303(d) regarding state promulgation of water quality standards and concluding that “even if a state fails to submit new or revised standards [to EPA], a change in state water quality standards could invoke the mandatory duty imposed on the Administration to review new or revised standards.”
• Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517 (9^th Cir. 1995) - The court rejected the claim by industry that no TMDL for dioxin could be established because there are no technology-based effluent guidelines for dioxin.
• Scott v. Hammond, 741 F.2d 992 (7^th Cir. 1984)- If a state fails over a long period of time to submit proposed TMDL, prolonged failure may amount to “constructive submission” by the state of no TMDLs, and theEPA may be under duty to either approve or disapprove this “submission.”
• Defend the Bay v. Marcus, No. 97-3997 (N.D. Cal. 1999) – In a consent decree, EPA agrees to set a schedule for TMDLs for 156 waterways in Los Angeles and Ventura counties of California.

XIV. Best Management Practices

Legislation
33 U.S.C. § 1314(e) – Best Management Practices for Industry.

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.”

Regulations
40 C.F.R. § 122.44(k)(2), (3) – BMPs are to be used “to control or abate the discharge of pollutants when … (n)umeric effluent limitations are infeasible … or … (t)he practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purpose and intent of the [CWA].”

40 C.F.R. § 125.1000 et seq. – Subpart K – Criteria and Standards for Best Management Practices Authorized under Section 304(e) of the Act.

40 C.F.R. § 130.2(m) – “Methods, measures or practices selected by an agency to meet its nonpoint source control needs. BMPs include but are not limited to structural and nonstructural controls and operation and maintenance procedures. BMPs can be applied before, during, and after pollution-producing activities to reduce or eliminate the introduction of pollutants into receiving waters.”

Cases

XV. Wetlands (§ 404)

A. Generally

Legislation
33 U.S.C. § 1344 – Permits for dredge or fill material.

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. § 122.2 – “Wetlands” means those areas that are inundated or saturated by surface of groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

40 C.F.R. § 230 – Guidelines for Specification of Disposal Sites for Dredge or Filled Materials.

40 C.F.R. § 231 – Section 404(c) Procedures.

40 C.F.R. § 232 – 404 Program Definitions; Exempt Activities Not requiring 404 Permits.

40 C.F.R. § 233 – 404 State Program Regulations.

33 C.F.R. § 321 – Permits for Dams and Dikes in Navigable Waters of the United States.

33 C.F.R. § 322 – Permits for Structures or Work in Or Affecting Navigable Waters of the United States.

33 C.F.R. § 323 – Permits for Discharges of Dredged or Fill Material into Waters of the United States.

33 C.F.R. § 328.3(b) – Corps’s definition of “wetlands.”

B. Adjacent Wetlands

Legislation
33 C.F.R. § 328.3(c) – The term “adjacent” means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are adjacent wetlands.

Cases

• United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) – Upheld the Corps’s application of § 404 permit requirements to adjacent wetlands; “the landward limit of Federal jurisdiction under § 404 must include any adjacent wetlands that form the border or are in reasonable proximity to other waters of the United States.”
• United States v. Wilson, 133 F.3d 251 (4^th Cir. 1997) – The court held that Corps definition of wetlands, which forbade activities that “could affect” interstate commerce, was invalid; “The regulation [33 CFR 328.3(a)(3)] requires neither that the regulated activity have a substantial effect on interstate commerce, nor that the covered waters have any sort of nexus with navigable, or even interstate, waters. Were this regulation a statute, because, at least at first blush, it would appear to exceed congressional authority under the Commerce Clause.”
• Hobbs v. United States, 1991 U.S. App. LEXIS 27696 (4^th Cir. 1991) – Land held to be adjacent wetland even though not directly abutting waters of the United States.
• United States v. Tilton, 705 F.2d 429 (11^th Cir. 1983) – Even without direct or indirect surface connection between wetlands in question and adjacent river, area came under wetlands definition.

C. Alternatives Analysis

Legislation
33 U.S.C. § 1344(b) – Requires development of guidelines that consider, among other things, “economic impact of the site on navigation and anchorage.”

Regulations
40 C.F.R. § 230.10(a) – Where “there is a practicable alternative … which would have less adverse impact on the aquatic ecosystem,” the Corps cannot issue a dredge or fill permit.

40 C.F.R. § 230.10(c) – “No discharge of dredge or fill material shall be permitted which will cause or contribute to significant degradation of the waters of the United States.”

Cases

• B&B Partnership v. United States, 133 F.3d 913 (4th Cir. 1997), reported in full at 1997 U.S. App. LEXIS 36,086 – Upheld Corps decision to deny 404 permit on the grounds that environmental impact to land outweighed public benefits of proposed landfill.
• Norfolk v. United States Army Corps of Engineers, 968 F.2d 1438 (1st Cir. 1992) – Basic proposition of CWA law is that if mitigation measures are insufficient, the permit should be denied.

D. Draining Wetlands

Legislation
33 U.S.C. § 1344(f)(1)(A) – “[T]he discharge of dredged or fill material … from … minor drainage … is not prohibited ….”

Regulations
40 C.F.R. § 232.3(d)(3)(ii) – “Minor drainage in waters of the United States is limited to drainage within areas that are part of an established farming or silviculture operation. It does not include drainage associated with the immediate or gradual conversion of a wetland to a non-wetland (e.g. wetland species to upland species not typically adequate to life in saturated soil conditions), or conversion from one wetland to another (for example, silviculture to farming).”

Cases

• Save Our Community v. EPA, 971 F.2d 1155 (5^th Cir. 1992) – Challenge to draining of wetlands dismissed on grounds that draining is not a dredge and fill subject to regulation and therefore requires no permit; “We must conclude that without the existence of an effluent discharge of some kind, there is no coverage under section 404.”

E. Dredge and Fill

Legislation
33 U.S.C. § 1344(a) – “The Secretary may issue permits, after notice and opportunity for public hearings for the discharge of dredge or fill material into the navigable waters at specified disposal sites.”

33 U.S.C. § 1344(t) – “Nothing in [§ 404] shall preclude or deny the right of any State … to control the discharge of dredged or fill material in any portion of the navigable waters within the jurisdiction of such State ….”

Regulations
33 C.F.R. § 323.2.(c) – “The term dredged material means material that is excavated or dredged from waters of the United States.”

33 C.F.R. § 323.2(d) – definition of “discharge of dredged material.”

33 C.F.R. § 323.2(e) – “The term fill material means any material used for the primary purpose of replacing an aquatic area with dry land or of hanging the bottom elevation of a waterway. The term does not include any pollutant discharged into the water primarily to dispose of waste, as that activity is regulated under Section 402 of the CWA.”

40 C.F.R. § 230.1(c) – “Fundamental to these Guidelines is the precept that dredged or fill material should not be discharged into the aquatic ecosystem, unless it can be demonstrated that such a discharge will not have an unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystem of concern.”

40 C.F.R. § 232.2 – Definitions.

Cases

• Resource Investments Inc. v. U.S. Army Corps of Engineers, 151 F.3d 1162 (9^th Cir. 1998) – Corps does not have the authority under 404 to stop proposed landfill because refuse to be disposed of in the landfill does not constitute “dredge and fill material”; the landfill does not meet the test of the Corps regulations for “material that is excavated or dredged from the waters of the United States”; authority to regulate solid waste rests with the EPA.
• West Virginia Coal Ass’n v. Reilly, 932 F.2d 964 (4^th Cir. 1991), full-text slip opinion reported at 1991 U.S. App. LEXIS 9401 – The court rejected the argument that Corps, not the EPA, should regulated discharge of mining wastes into navigable waters. “Generally, the Army has authority over the discharge [of] fill while the EPA has authority over the discharge of pollutants. … Appellants’ analysis falls short, however, since the Army regulations, 33 CFR § 323(e), provide evidence that it did not intend to regulate the disposal of mining related spoil since the primary purpose of such fill and treatment ponds is to dispose of waste and treat sediment-laden water, not to create dry land or to change the bottom elevation of the water.”

F. Exemptions (§ 404(f))

Legislation
33 U.S.C. § 1344(f)(1)(A) – “The discharge of dredge or fill material from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices … is not prohibited or otherwise subject to regulation ….”

33 U.S.C. § 1344(f)(1)(E) – “The discharge of dredged or fill material … for the purposes of construction or maintenance of farm roads or forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained, in accordance with best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized … is not prohibited by or otherwise subject to regulation ….”

Regulations
33 C.F.R. § 328.3(a)(8) – Defines prior converted wetlands as those areas “that before December 23, 1985, where drained, dredged, filled, leveled, or otherwise manipulated … for the purpose, or to have the effect of, or making production of an agricultural commodity possible and an agricultural commodity has been produced at least once before December 23, 1995.”

Cases

Newton County Wildlife Ass’n v. Rogers, 141 F.3d 803 (8^th Cir. 1998) – Suit challenging logging sale by the Forest Service is dismissed; “[L]ogging and associated road building are exempt from dredge and fill permit requirements so long as construction and maintenance comply with best management practices … The administrative record contains no evidence those practices have not been followed.”

G. Isolated Wetlands

Cases

• Adjacent wetlands are covered (United States v. Riverside Bayview Homes), but isolated wetlands where the sole connection is migratory birds are not (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers).
• Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) - § 404 of CWA, requiring permit from Army Corps of Engineers for discharge of fill material into navigable waters, held not to extend to isolated, abandoned sand and gravel pit with seasonal ponds which provided migratory bird habitat.

H. Nationwide Permits

Legislation
33 C.F.R. § 330.5 – Nationwide Permits.

Cases

United States v. Marathon Development Corp., 867 F.2d 96 (1^st Cir. 1989) – States may deny certification of a nationwide wetland permit in order to enforce their more stringent water quality standards.

I. EPA Veto of Corp.-Issues Permits (§ 404(c))

Legislation
33 U.S.C. § 1344(c) – Denial or restriction of use of defined areas as disposal areas.

Regulations
40 C.F.R. Part 231 – Section 404(c) Procedures.

Cases

• Hoffman Homes Inc. v. EPA, 961 F.2d 1310 (7^th Cir. 1992), vacated for rehearing, 975 F.2d 1154 (7th Cir. 1992) – “The EPA … has a veto power over the issuance of permits when it determines, after consulting with the Corps, that the dredging or fill materials ‘will have an unacceptable adverse effect on municipal water supplies, shellfish beds …, wildlife, or recreational areas.”
• Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515 (10^th Cir. 1992) – “The EPA may veto the issuance of a permit which will have an ‘unacceptable adverse effect” on a wetland ecosystem.”

XVI. Storm Water

Legislation
33 U.S.C. § 1342(l)(2) – Storm water runoff from oil, gas and mining.

33 U.S.C. § 1342(p) – Municipal and Industrial Storm Water Discharges.

Regulations
40 C.F.R. § 122.26 – Storm Water Discharges.

Cases

• Defenders of Wildlife v. Browner, 1999 U.S. App. LEXIS 22212 (9^th Cir. 1999) – Held that the EPA did not act in an arbitrary and capricious manner by not requiring municipal storm water permits to include numeric effluent limits designed to ensure compliance with state water quality standards; the EPA has discretion to use BMPs instead; “the [CWA] did not require municipal storm sewer discharges to comply strictly with [effluent limitations] … [I]ndustrial dischargers must comply strictly with state water-quality standards. Congress chose not to include a similar provision for municipal storm-sewer discharges.”
• American Mining Congress v. EPA, 965 F.2d 759 (9^th Cir. 1992) – Upheld provisions of the EPA's storm water rule which classifies storm water discharges from inactive mines as “associated with industrial activity” and thus subject to NPDES permitting under CWA § 402(p).
• San Francisco Baykeeper v. Tidewater Sand & Gravel Co., 1997 U.S. Dist. LEXIS 22,602, 46 ERC (BNA) 1778 (N.D. Ca. 1997) – Discharge from defendants sand & gravel operation held to be “associated with industrial” activity under 40 C.F.R. § 122.26(c)(1).

XVII. Concentrated Animal Feeding Operations (CAFOs)

Legislation
33 U.S.C. § 1362(14) – “The term point source [includes] … concentrated animal feeding operation.”

Regulations
40 C.F.R. § 122.21(i) – NPDES permit application requirements for CAFOs.

40 C.F.R. § 122.23(a)(3) and Part 122 Appendix B – Definition of CAFOs.

40 C.F.R. Part 412 – Feedlot Point Source Category.

Cases

• Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 1994) – Held that dairy farm with 700 cattle that lived in barns was a CAFO and the runoff from the fields to which their manure was applied was not nonpoint source runoff.

XVIII. Mining

Legislation
33 U.S.C. § 1288(b)(2)(G) – Area wide waste management plans shall include “a process to (i) identify, if appropriate, mine-related sources of pollution including new, current, and abandoned surface and underground mine run-off and (ii) set forth procedures and methods (including land use requirements) to control to the extent feasible such sources.”

33 U.S.C. § 1342(l)(2) – Storm water runoff from oil, gas and mining.

Regulations
40 C.F.R. § 122.26(b)(10) – Storm water regulation definition of overburden.

40 C.F.R. § 122.26(b)(14)(iii) – “Facilities classified as Standard Industrial Classifications 10 through 14 (mineral industry) including active or inactive mining operations …”

40 C.F.R. § 130.6(c)(4)(iii)(D) – “BMPs shall be identified for the nonpoint sources identified in section 208(b)(2)(F)-(K) of the Act and other nonpoint source as follows: … Identification of procedures to control mine-related source of pollution in accordance with section 208(b)(2)(G) of the Act.”

40 C.F.R. Part 440 – Effluent Guidelines and Standards for Ore Mining and Dressing Point Source Category.

Cases

• Committee to Save Mokelumne River v. East Bay Util., 13 F.3d 305 (9^th Cir. 1993) – Acid mine drainage is sufficient to satisfy the definition of “pollutant” under the CWA.
• American Mining Congress v. EPA, 965 F.2d 759 (9^th Cir. 1992) – Upheld provisions of the EPA’s storm water rule which classifies storm water discharges from inactive mines as “associated with industrial activity” and thus subject to NPDES permitting under § 402(p) of the CWA.

XIX. Oil and Gas

Legislation
33 U.S.C. § 1342(l)(2) – Storm water runoff from oil, gas and mining.

Regulations
40 C.F.R. Part 435, Subpart D – Coastal subcategory effluent limitation guidelines.

Cases

• Sierra Club v. Cedar Point Oil Co., 73 F.3d 546 (5^th Cir. 1996) – Produced water held to be a pollutant.

XX. Oil Spills (§ 311)

Legislation
33 U.S.C. § 1321(b)(6) – Administrative penalty provisions.

33 U.S.C. § 1321(b)(7) – civil penalty provisions: “Any person who is the owner, operator, or person in charge of any vessel, onshore facility, or offshore facility from which oil or hazardous substance is discharged in violation of paragraph (3), shall be subject o civil penalty ….”

Regulations
40 C.F.R. Part 109 – Criteria for State, Local, and Regional Pollution Contingency Plans.

40 C.F.R. Part 110 – Discharge of Oil.

40 C.F.R. Part 112 – Oil Pollution Prevention.

40 C.F.R. Part 116 – Designation of Hazardous Substances.

40 C.F.R. Part 117 – Determination of Reportable Quantities of Hazardous Substances.

40 C.F.R. Part 138 – Financial Responsibility for Water Pollution.

33 C.F.R. Part 133 – Oil Spill Liability Trust Fund: State Access.

33 C.F.R. 136 – Oil Spill Liability Trust Fund: Claims Procedures, Designation of Sources, and Advertisement.

XXI. Ground Water, Discharge To

Regulations
40 C.F.R. § 130.6(c)(9) – Water Quality Management Plans: Groundwater.

Cases

• Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7^th Cir. 1994) – Discharge to artificial ponds connected only to groundwater are not regulated under the CWA.
• Town of Norfolk v. Corp. Engineers, 968 F.2d 1438 (1^st Cir. 1992) – held that the CWA’s permitting provisions do not apply to any groundwater, deferring to Corps definition, which limited CWA coverage to surface waters.
• Quivira Mining Co. v. EPA, 765 F.2d 126 (10^th Cir. 1985) – Affirmed the EPA’s decision that a CWA permit was required for discharges of pollutants into surface arroyos which, during storms, channeled rainwater both directly to navigable-in-fact streams and into underground aquifers that connected with such streams.

XXII. CWA Relationship to the Coastal Zone Management Act

Regulations
40 C.F.R. § 122.49(d) – The CZMA and implementing regulations (15 C.F.R. Part 930) prohibit the EPA from issuing a permit for an activity affecting land or water use in the coastal zone until the applicant certifies that the proposed activity complies with the State Coastal Zone Management program, and the State or its designated agency concurs with the certification.

For Information or comments contact:
Eric Hecox
eric_hecox@blm.gov