Water Pollution Control Act | Wikipedia audio article


The Clean Water Act (CWA) is the primary federal
law in the United States governing water pollution. Its objective is to restore and maintain the
chemical, physical, and biological integrity of the nation’s waters; recognizing the responsibilities
of the states in addressing pollution and providing assistance to states to do so, including
funding for publicly owned treatment works for the improvement of wastewater treatment;
and maintaining the integrity of wetlands. It is one of the United States’ first and
most influential modern environmental laws. As with many other major U.S. federal environmental
statutes, it is administered by the U.S. Environmental Protection Agency (EPA), in coordination with
state governments. Its implementing regulations are codified at 40 C.F.R. Subchapters D, N,
and O (Parts 100-140, 401-471, and 501-503). Technically, the name of the law is the Federal
Water Pollution Control Act. The first FWPCA was enacted in 1948, but took on its modern
form when completely rewritten in 1972 in an act entitled the Federal Water Pollution
Control Act Amendments of 1972. Major changes have subsequently been introduced via amendatory
legislation including the Clean Water Act of 1977 and the Water Quality Act of 1987.The
Clean Water Act does not directly address groundwater contamination. Groundwater protection
provisions are included in the Safe Drinking Water Act, Resource Conservation and Recovery
Act, and the Superfund act.==Background=====Health implications of water pollution
===Contamination of drinking water supplies can
not only occur in the source water but also in the distribution system. Sources of water
contamination include naturally occurring chemicals and minerals (arsenic, radon, uranium),
local land use practices (fertilizers, pesticides, concentrated feeding operations), manufacturing
processes, and sewer overflows or wastewater releases. Some examples of health implications
of water contamination are gastrointestinal illness, reproductive problems, and neurological
disorders. Infants, young children, pregnant women, the elderly, and people whose immune
systems are compromised because of AIDS, chemotherapy, or transplant medications, may be especially
susceptible to illness from some contaminants.====Gastrointestinal illness====
Gastrointestinal disorders include such conditions as constipation, irritable bowel syndrome,
hemorrhoids, anal fissures, perianal abscesses, anal fistulas, perianal infections, diverticular
diseases, colitis, colon polyps and cancer. In general, children and the elderly are at
highest risk for gastrointestinal disease. In a study investigating the association between
drinking water quality and gastrointestinal illness in the elderly of Philadelphia, scientists
found water quality 9 to 11 days before the visit was negatively associated with hospital
admissions for gastrointestinal illness, with an interquartile range increase in turbidity
being associated with a 9% increase). The association was stronger in those over 75
than in the population aged 65–74. This example is a small reflection of residents
of the United States remain at risk of waterborne gastrointestinal illness under current water
treatment practices.====Reproductive problems====
Reproductive problems refer to any illness of the reproductive system. New research by
Brunel University and the University of Exeter strengthens the relationship between water
pollution and rising male fertility problems. Study identified a group of chemicals that
act as anti-androgens in polluted water, which inhibits the function of the male hormone,
testosterone, reducing male fertility.====Neurological disorders====
Neurological disorders are diseases of the brain, spine and the nerves that connect them.
The new study of more than 700 people in California’s Central Valley found that those who likely
consumed contaminated private well water had a higher rate of Parkinson’s. The risk was
90 percent higher for those who had private wells near fields sprayed with widely used
insecticides. Unlike water supplies in large cities, private wells are mostly unregulated
and are not monitored for contaminants. Many of them exist at shallow depths of less than
20 yards, and some of the crop chemicals used to kill pests and weeds can flow into ground
water. Therefore, private wells are likely to contain pesticides, which can attack developing
brains (womb or infancy), leading to neurological diseases later in life. A study led by UCLA
epidemiology professor Beate Ritz suggests that “people with Parkinson’s were more
likely to have consumed private well water, and had consumed it on average 4.3 years longer
than those who did not have the disease.”==
Waters protected==All waters with a “significant nexus” to “navigable
waters” are covered under the CWA; however, the phrase “significant nexus” remains open
to judicial interpretation and considerable controversy. The 1972 statute frequently uses
the term “navigable waters” but also defines the term as “waters of the United States,
including the territorial seas.” Some regulations interpreting the 1972 law have included water
features such as intermittent streams, playa lakes, prairie potholes, sloughs and wetlands
as “waters of the United States.” In 2006, in Rapanos v. United States, a plurality of
the US Supreme Court held that the term “waters of the United States” “includes only those
relatively permanent, standing or continuously flowing bodies of water ‘forming geographic
features’ that are described in ordinary parlance as ‘streams[,]… oceans, rivers, [and] lakes.'”==Pollution control strategy=====
Point sources===The CWA introduced the National Pollutant
Discharge Elimination System (NPDES), a permit system for regulating point sources of pollution.
Point sources include: industrial facilities (including manufacturing,
mining, shipping activities, oil and gas extraction and service industries).
municipal governments (particularly sewage treatment plants) and other government facilities
(such as military bases), and some agricultural facilities, such as animal
feedlots.Point sources may not discharge pollutants to surface waters without an NPDES permit.
The system is managed by EPA in partnership with state environmental agencies. EPA has
authorized 47 states to issue permits directly to the discharging facilities. The CWA also
allows tribes to issue permits, but no tribes have been authorized by EPA. In the remaining
states and territories, the permits are issued by an EPA regional office. (See Titles III
and IV.) In legislation prior to 1972, Congress had
authorized states to develop water quality standards, which would limit discharges from
facilities based on the characteristics of individual water bodies. However, those standards
were to be developed only for interstate waters, and the science to support that process (i.e.
data, methodology) was in the early stages of development. That system was not effective,
and there was no permit system in place to enforce the requirements. In the 1972 CWA,
Congress added the permit system and a requirement for technology-based effluent limitations.====Technology-based standards====
The 1972 CWA created a new requirement for technology-based standards for point source
discharges. EPA develops those standards for categories of dischargers, based on the performance
of pollution control technologies without regard to the conditions of a particular receiving
water body. The intent of Congress was to create a “level playing field” by establishing
a basic national discharge standard for all facilities within a category, using a “Best
Available Technology.” The standard becomes the minimum regulatory requirement in a permit.
If the national standard is not sufficiently protective at a particular location, then
water quality standards may be employed.====Water quality standards====
The 1972 act authorized continued use of the water quality-based approach, but in coordination
with the technology-based standards. After application of technology-based standards
to a permit, if water quality is still impaired for the particular water body, then the permit
agency (state or EPA) may add water quality-based limitations to that permit. The additional
limitations are to be more stringent than the technology-based limitations and would
require the permittee to install additional controls. Water quality standards consist
of four basic elements: 1) Designated uses; 2) Water quality criteria; 3) Antidegradation
policy and 4) General policies.=====Designated uses=====
According to water quality standard regulations, federally recognized tribes/nations and states
are required to specify appropriate water uses. Identification of appropriate water
uses takes into consideration the usage and value of public water supply, protection of
fish, wildlife, recreational waters, agricultural, industrial and navigational water ways. Suitability
of a water body is examined by states and tribes/nations usages based on physical, chemical,
and biological characteristics. States and tribes/nations also examine geographical settings,
scenic qualities and economic considerations to determine fitness of designated uses for
water bodies. If those standards indicate designated uses to be less than those currently
attained, states or tribes are required to revise standards to reflect the uses thaf
are actually being attained. For any body of water with designated uses that do not
include “fishable/swimmable” target use that is identified in section 101(a)(2) of CWA,
a “Use Attainability Analysis” must be conducted. Every three years, such bodies of water must
be re-examined to verify if new information is available that demand a revision of the
standard. If new information is available that specify “fishable/swimmable” uses
can be attained, the use must be designated.=====Water quality criteria=====
Federally recognized Indigenous Nations and states protect designated areas by adopting
water quality criteria that the EPA publishes under §304(a) of the CWA, modifying the §304(a)
criteria to reflect site-specific conditions or adopting criteria based on other scientifically
defensible methods. Water quality criteria can be numeric criteria that toxicity causes
are known for protection against pollutants. A narrative criterion is water quality criteria
which serves as a basis for limiting the toxicity of waste discharges to aquatic species. A
biological criterion is based on the aquatic community which describes the number and types
of species in a water body. A nutrient criterion solely protects against nutrient over enrichment,
and a sediment criterion describes conditions of contaminated and uncontaminated sediments
in order to avoid undesirable effects.=====Anti-degradation policy=====
Water quality standards consist of an anti-degradation policy that requires states and tribes to
establish a three-tiered anti-degradation program. Anti-degradation procedures identify
steps and questions that need to be addressed when specific activities affect water quality.
Tier 1 is applicable to all surface waters. It maintains and protects current uses and
water quality conditions to support existing uses. Current uses are identified by showing
that fishing, swimming, and other water uses have occurred and are suitable since November
28, 1975. Tier 2 maintains and protects water bodies with existing conditions that are better
to support CWA 101(a)(2) “fishable/swimmable” uses. Tier 3 maintains and protects water
quality in outstanding national resource waters (ONRWs), which are the highest quality waters
in the US with ecological significance.=====General policies=====
States and Indian tribes adopt general policies pertaining to water quality standards that
are subject to review and approval by the EPA. Those provisions on water quality standards
include mixing zones, variance, and low flow policies. Mixing zone policy is defined area
surrounding a point source discharge where sewage is diluted by water. Methodology of
mixing zone procedure determines the location, size, shape and quality of mixing zones. Variance
policy temporarily relax water quality standard and are alternatives to removing a designated
use. States and tribes may include variance as part of their water quality standard. Variance
is subject to public review every three years and warrant development towards improvement
of water quality. Low Flow policy pertains to states and tribes water quality standards
that identify procedures applied to determining critical low flow conditions.===Nonpoint sources===Congress exempted some water pollution sources
from the point source definition in the 1972 CWA and was unclear on the status of some
other sources. Such sources were therefore considered to be nonpoint sources that were
not subject to the permit program. Agricultural stormwater discharges and irrigation
return flows were specifically exempted from permit requirements. Congress, however, provided
support for research, technical and financial assistance programs at the U.S. Department
of Agriculture to improve runoff management practices on farms. See Natural Resources
Conservation Service. Stormwater runoff from industrial sources,
municipal storm drains, and other sources were not specifically addressed in the 1972
law. EPA had declined to include urban runoff and industrial stormwater discharges in its
initial implementation of the NPDES program, and subsequently the agency was sued by an
environmental group. In 1977, the D.C. Circuit Court of Appeals ruled that stormwater discharges
must be covered by the permit program.Research conducted starting in the late 1970s and 1980s
indicated that stormwater runoff was a significant cause of water quality impairment in many
parts of the US. In the early 1980s, the EPA conducted the Nationwide Urban Runoff Program
(NURP) to document the extent of the urban stormwater problem. The agency began to develop
regulations for stormwater permit coverage but encountered resistance from industry and
municipalities, and there were additional rounds of litigation. The litigation was pending
when Congress considered further amendments to the CWA in 1986.
In the Water Quality Act of 1987, Congress responded to the stormwater problem by defining
industrial stormwater dischargers and municipal separate storm sewer systems (often called
“MS4”) as point sources, and requiring them to obtain NPDES permits, by specific deadlines.
The permit exemption for agricultural discharges continued, but Congress created several programs
and grants, including a demonstration grant program at the EPA to expand the research
and development of non point controls and management practices.===Financing of pollution controls===
Congress created a major public works financing program for municipal sewage treatment in
the 1972 CWA. A system of grants for construction of municipal sewage treatment plants was authorized
and funded in Title II. In the initial program, the federal portion of each grant was up to
75 percent of a facility’s capital cost, with the remainder financed by the state. In subsequent
amendments Congress reduced the federal proportion of the grants and in the 1987 WQA transitioned
to a revolving loan program in Title VI. Industrial and other private facilities are required
to finance their own treatment improvements on the “polluter pays” principle.====Water Infrastructure Finance and Innovation
Act====Congress passed the Water Infrastructure Finance
and Innovation Act of 2014 (WIFIA) to provide an expanded credit program for water and wastewater
infrastructure projects, with broader eligibility criteria than the previously-authorized revolving
fund unter CWA Title VI. Pursuant to WIFIA, EPA established its Water Infrastructure and
Resiliency Finance Center in 2015 to help local governments and municipal utilities
design innovative financing mechanisms, including public–private partnerships. Congress amended
the WIFIA program in 2015 and 2016.==Major statutory provisions==
This Act has six titles.===Title I – Research and Related Programs
===Title I includes a Declaration of Goals and
Policy and various grant authorizations for research programs and pollution control programs.
Some of the programs authorized by the 1972 law are ongoing (e.g. section 104 research
programs, section 106 pollution control programs, section 117 Chesapeake Bay Program) while
other programs no longer receive funds from Congress and have been discontinued.===Title II – Grants for Construction of
Treatment Works===To assist municipalities in creating or expanding
sewage treatment plants, also known as publicly owned treatment works (POTW), Title II established
a system of construction grants. The 1972 CWA provided that federal funds would support
75% of project costs, with state and local funds providing the remaining 25%. In 1981
Congress reduced the federal funding proportion for most grants to 55%. The construction grant
program was replaced by the Clean Water State Revolving Fund in the 1987 WQA (see Title
VI), although some local utilities continued to receive “special purpose project grants”
directly from Congress, through a budgetary procedure known as “earmarking.”===Title III – Standards and enforcement
=======
Discharge permits required====Section 301 of the Act prohibits discharges
to waters of the U.S. except with a permit. (See Title IV for discussion of permit programs.)
Recreational vessels are exempt from the permit requirements, but vessel operators must implement
Best Management Practices to control their discharges. (See Regulation of ship pollution
in the United States.)====Technology-Based Standards Program====
Under the 1972 act EPA began to issue technology-based standards for municipal and industrial sources. Municipal sewage treatment plants (POTW) are
required to meet secondary treatment standards. Effluent guidelines (for existing sources)
and New Source Performance Standards (NSPS) are issued for categories of industrial facilities
discharging directly to surface waters. Categorical Pretreatment Standards are issued
to industrial users (also called “indirect dischargers”) contributing wastes to POTW.
These standards are developed in conjunction with the effluent guidelines program. As with
effluent guidelines and NSPS, pretreatment standards consists of Pretreatment Standards
for Existing Sources (PSES) and Pretreatment Standards for New Sources (PSNS). There are
28 categories with pretreatment standards as of 2018.To date, the effluent guidelines
and categorical pretreatment standards regulations have been published for 59 categories and
apply to approximately 40,000 facilities that discharge directly to the nation’s waters,
129,000 facilities that discharge to POTWs, and construction sites. These regulations
are responsible for preventing the discharge of almost 700 billion pounds of pollutants
each year. EPA has updated some categories since their initial promulgation and has added
new categories. The secondary treatment standards for POTWs
and the effluent guidelines are implemented through NPDES permits. (See Title IV.) The
categorical pretreatment standards are typically implemented by POTWs through permits that
they issue to their industrial users.====Water Quality Standards Program====
The framework that came out of the Clean Water Act to be implemented by the EPA and states
includes states monitoring their water bodies and establishing Water Quality Standards for
them. Water Quality Standards (WQS) are risk-based requirements which set site-specific allowable
pollutant levels for individual water bodies, such as rivers, lakes, streams and wetlands.
States set WQS by designating uses for the water body (e.g., recreation, water supply,
aquatic life, agriculture) and applying water quality criteria (numeric pollutant concentrations
and narrative requirements) to protect the designated uses. An antidegradation policy
is also issued by each state to maintain and protect existing uses and high quality waters.If
a state fails to issue WQS, EPA is required to issue standards for that state.Water bodies
that do not meet applicable water quality standards with technology-based controls alone
are placed on the section 303(d) list of water bodies not meeting standards. Water bodies
on the 303(d) list require development of a Total Maximum Daily Load (TMDL). A TMDL
is a calculation of the maximum amount of a pollutant that a water body can receive
and still meet WQS. The TMDL is determined after study of the specific properties of
the water body and the pollutant sources that contribute to the non-compliant status. Generally,
the TMDL determines load based on a Waste Load Allocation (WLA), Load Allocation (LA),
and Margin of Safety (MOS) Once the TMDL assessment is completed and the maximum pollutant loading
capacity defined, an implementation plan is developed that outlines the measures needed
to reduce pollutant loading to the non-compliant water body, and bring it into compliance.
Over 60,000 TMDLs are proposed or in development for U.S. waters in the next decade and a half.
Following the issuance of a TMDL for a water body, implementation of the requirements involves
modification to NPDES permits for facilities discharging to the water body to meet the
WLA allocated to the water body (see Title IV). The development of WQS and TMDL is a
complex process, both scientifically and legally, and it is a resource-intensive process for
state agencies. More than half of U.S. stream and river miles
continue to violate water quality standards. Surveys of lakes, ponds and reservoirs indicated
that about 70 percent were impaired (measured on a surface area basis), and a little more
than 70 percent of the nation’s coastlines, and 90 percent of the surveyed ocean and near
coastal areas were also impaired.====National Water Quality Inventory====
The primary mode of informing the quality of water of rivers, lakes, streams, ponds,
estuaries, coastal waters and wetlands of the U.S. is through the National Water Quality
Inventory Report. Water quality assessments are conducted pursuant to water quality standards
adopted by states and other jurisdictions (territories, interstate commissions and tribes).
The report is conveyed to Congress as a means to inform Congress and the public of compliance
with quality standards established by states, territories and tribes. The assessments identify
water quality problems within the states and jurisdictions, list the impaired and threatened
water bodies, and identify non-point sources that contribute to poor water quality. Every
two years states must submit reports that describe water quality conditions to EPA with
a complete inquiry of social and economic costs and benefits of achieving goals of the
Act.====Enforcement====
Under section 309, EPA can issue administrative orders against violators, and seek civil or
criminal penalties when necessary. For a first offense of criminal negligence,
the minimum fine is $2,500, with a maximum of $25,000 fine per day of violation. A violator
may also receive up to a year in jail. On a second offense, a maximum fine of $50,000
per day may be issued. For a knowing endangerment violation, i.e.
placing another person in imminent danger of death or serious bodily injury, a fine
may be issued up to $250,000 and/or imprisonment up to 15 years for an individual, or up to
$1,000,000 for an organization.States that are authorized by EPA to administer the NPDES
program must have authority to enforce permit requirements under their respective state
laws.====Federal facilities====
Military bases, national parks and other federal facilities must comply with CWA provisions.====Thermal pollution====
Section 316 requires standards for thermal pollution discharges, as well as standards
for cooling water intake structures (e.g., fish screens). These standards are applicable
to power plants and other industrial facilities.====Nonpoint Source Management Program====
The 1987 amendments created the Nonpoint Source Management Program under CWA section 319.
This program provides grants to states, territories and Indian tribes to support demonstration
projects, technology transfer, education, training, technical assistance and related
activities designed to reduce nonpoint source pollution. Grant funding for the program averaged
$210 million annually for Fiscal Years 2004 through 2008.===Title IV – Permits and licenses=======
State certification of compliance====States are required to certify that discharges
authorized by federal permits will not violate the state’s water quality standards.====NPDES permits for point sources====
The NPDES permits program is authorized by CWA section 402. The initial permits issued
in the 1970s and early 1980s focused on POTWs and industrial wastewater—typically “process”
wastewater and cooling water where applicable, and in some cases, industrial stormwater.
The 1987 WQA expanded the program to cover stormwater discharges explicitly, both from
municipal separate storm sewer systems (MS4) and industrial sources. The MS4 NPDES permits
require regulated municipalities to use Best Management Practices to reduce pollutants
to the “Maximum Extent Practicable.” MS4s serve over 80% of the US population and provide
drainage for 4% of the land area.POTWs with combined sewers are required to comply with
the national Combined Sewer Overflow Control Policy, published by EPA in 1994. The policy
requires municipalities to make improvements to reduce or eliminate overflow-related pollution
problems. About 860 communities in the US have combined sewer systems, serving about
40 million people.Non-stormwater permits typically include numeric effluent limitations for specific
pollutants. A numeric limitation quantifies the maximum pollutant load or concentration
allowed in the discharge, e.g., 30 mg/L of biochemical oxygen demand. Exceeding a numeric
limitation constitutes a violation of the permit, and the discharger is subject to fines
as laid out in section 309. Facilities must periodically monitor their effluent (i.e.,
collect and analyze wastewater samples), and submit Discharge Monitoring Reports to the
appropriate agency, to demonstrate compliance. Stormwater permits typically require facilities
to prepare a Stormwater Pollution Prevention Plan and implement best management practices,
but do not specify numeric effluent limits and may not include regular monitoring requirements.
Some permits cover both stormwater and non-stormwater discharges. NPDES permits must be reissued
every five years. Permit agencies (EPA, states, tribes) must provide notice to the public
of pending permits and provide an opportunity for public comment.In 2012, EPA estimated
that there are over 500,000 stormwater permittees. This number includes permanent facilities
such as municipal (POTW, MS4) and industrial plants, and construction sites, which are
temporary stormwater dischargers.====Dredge and fill permits====
Section 404 requires that a discharger of dredged or fill material obtain a permit,
unless the activity is eligible for an exemption. Essentially, all discharges affecting the
bottom elevation of a jurisdictional water body require a permit from the U.S. Army Corps
of Engineers (USACE). These permits are an essential part of protecting streams and wetlands,
which are often filled by land developers. Wetlands are vital to the ecosystem in filtering
streams and rivers and providing habitat for wildlife.There are two main types of wetlands
permits: general permits and individual permits. General permits change periodically and cover
broad categories of activities, and require the permittee to comply with all stated conditions.
General permits (such as the “Nationwide Permits”) are issued for fill activities that will result
in minimal adverse effects to the environment. Individual permits are utilized for actions
that are not addressed by a general permit, or that do not meet the conditions of a General
Permit. In addition, individual permits typically require more analysis than do the general
permits, and usually require much more time to prepare the application and to process
the permit. When the USACE processes an application for
an Individual Permit, it must issue a public notice describing the proposed action described
in the permit application. Although the Corps District Engineer makes the decision to grant
a permit, the EPA Administrator may veto a permit if it is not reasonable. Before making
such a decision, however, EPA must consult with the USACE. A USACE permit typically expires
after five years. Mountaintop removal mining requires a section
404 permit when soil and rock from the mining operation is placed in streams and wetlands
(commonly called a “valley fill”). Pollutant discharges from valley fills to streams also
requires an NPDES permit.=====Exemptions=====
After passage of the CWA in 1972, a controversy arose as to the application of section 404
to agriculture and certain other activities. The Act was interpreted by some to place restrictions
on virtually all placement of dredged materials in wetlands and other waters of the United
States, raising concern that the federal government was about to place all agricultural activities
under the jurisdiction of USACE. For opponents of the Act, section 404 had, as a result of
this concern, become a symbol of dramatic over-regulation. When Congress considered
the 1977 CWA Amendments, a significant issue was to ensure that certain agricultural activities
and other selected activities, could continue without the government’s supervision—in
other words, completely outside the regulatory or permit jurisdiction of any federal agency.
The 1977 amendments included a set of six section 404 exemptions. For example, totally
new activities such as construction of farm roads, Sec. 1344(f)(1)(E), construction of
farm or stock ponds or irrigation ditches, and minor agricultural drainage, Sec. 1344(f)(1)(A),
all are exempted by Statute. Section 1344(f)(1)(C), which exempts discharge of dredged material
“for the purpose of… the maintenance of drainage ditches.” All of these exemptions
were envisioned to be self-executing, that is not technically requiring an administrative
no-jurisdiction determination. One such example was the maintenance of agricultural drainage
ditches. Throughout the hearing process, Congressmen of every environmental persuasion repeatedly
stated that the over $5 Billion invested in drainage facilities could be maintained without
government regulation of any kind. Senator Edmund Muskie, for example, explained that
exempt activities such as agricultural drainage would be entirely unregulated. Other exemptions
were granted as well, including exemptions for normal farming activities.=====Importance of no-jurisdiction determinations
=====Although Congress envisioned a set of self-executing
exemptions, it has become common for landowners to seek no-jurisdiction determinations from
the USACE. A landowner who intends to make substantial investments in acquisition or
improvement of land might lawfully proceed with exempt activity, a permit not being required.
The problem is that if the landowner’s assumptions were incorrect and the activity later determined
not to be exempt, the USACE will issue a cease and desist order. Obtaining an advanced ruling
provides some level of comfort that the activities will have been deemed conducted in good faith.=====Recapture of exemptions=====
Because some of the six exemptions involved new activities, such as minor drainage and
silviculture (the clearing of forests by the timber industry), Congress recognized the
need to impose some limitations on exemptions. Consequently, Congress placed the so-called
recapture clause limitation on these new project exemptions. Under section 404(f)(2), such
new projects would be deprived of their exemption if all of the following three characteristics
could be shown: A discharge of dredge or fill material in
the navigable waters of the United States; The discharge is incidental to an activity
having as its purpose the bringing of an area of navigable waters into a use to which it
was not previously subject, and Where the flow or circulation of navigable
waters may be impaired or the reach of such waters may be reduced.To remove the exemption,
all of these requirements must be fulfilled—the discharge, the project purpose of bringing
an area into a use to which it was not previously subject, and the impairment or reduction of
navigable waters.====POTW Biosolids Management Program====
The 1987 WQA created a program for management of biosolids (sludge) generated by POTWs.
The Act instructed EPA to develop guidelines for usage and disposal of sewage sludge or
biosolids. The EPA regulations: (1) Identify uses for sewage sludge, including disposal;
(2) Specify factors to be taken into account in determining the measures and practices
applicable to each such use or disposal (including publication of information on costs); and
(3) Identify concentrations of pollutants which interfere with each such use or disposal.
EPA created an Intra-Agency Sludge Task Force to aid in developing comprehensive sludge
regulations that are designed to do the following: (1) Conduct a multimedia examination of sewage
sludge management, focusing on sewage sludge generated by POTWs; and (2) develop a cohesive
Agency policy on sewage sludge management, designed to guide the Agency in implementing
sewage sludge regulatory and management programs.The term biosolids is used to differentiate treated
sewage sludge that can be beneficially recycled. Environmental advantages of sewage sludge
consist of, application of sludge to land due to its soil condition properties and nutrient
content. Advantages also extend to reduction in adverse health effects of incineration,
decreased chemical fertilizer dependency, diminishing greenhouse gas emissions deriving
from incineration and reduction in incineration fuel and energy costs. Beneficial reuse of
sewage sludge is supported in EPA policies: the 1984 Beneficial Reuse Policy and the 1991
Inter-agency Policy on Beneficial Use of Sewage Sludge, with an objective to reduce volumes
of waste generated. Sewage sludge contains nutrients such as nitrogen and phosphorus
but also contains significant numbers of pathogens such as bacteria, viruses, protozoa and eggs
of parasitic worms. Sludge also contains more than trace amounts of organic and inorganic
chemicals. Benefits of reusing sewage sludge from use of organic and nutrient content in
biosolids is valuable source in improving marginal lands and serving as supplements
to fertilizers and soil conditioners. Extension of benefits of sludge on agriculture commodities
include increase forest productivity, accelerated tree growth, re-vegetation of forest land
previously devastated by natural disasters or construction activities. Also, sewage sludge
use to aid growth of final vegetative cap for municipal solid waste landfills is enormously
beneficial. Opposing benefits of sludge water result from high levels of pathogenic organisms
that can possibly contaminate soil, water, crops, livestock, and fish. Pathogens, metals,
organic chemical content and odors are cause of major health, environmental and aesthetic
factors. Sludge treatment processes reduce the level of pathogens which becomes important
when applying sludge to land as well as distributing and marketing it. Pollutants of sewage sludge
come from domestic wastewater, discharge of industrial wastewater, municipal sewers and
also from runoffs from parking lots, lawns and fields that were applied fertilizers,
pesticides and insecticides.The quality of sewage sludge is controlled under section
405(d), where limitations are set with methods of use or disposal for pollutants in sludge.
EPA, under section 405(d)(3), established a containment approach to limit pollutants
instead of numerical limitations. This methodology is more reasonable than numerical limitations
and includes design standards, equipment standards, management practice, and operational standards
or combination of these. Limits on sewage sludge quality allows treatment works that
generate less contaminated pollutants and those that do not meet the sludge quality
standards for use and disposal practice must clean up influent, improve sewage sludge treatment
and/or select another use of disposal method. EPA has set standards for appropriate practices
of use and disposal of biosolids in order to protect public health and the environment,
but choice of use or disposal practices are reserved to local communities. Listed under
section 405(e) of CWA, local communities are encouraged to use their sewage sludge for
its beneficial properties instead of disposing it.Standards are set for sewage sludge generated
or treated by publicly owned and privately owned treatment works that treat domestic
sewage and municipal wastewater. Materials flushed in household drains through sinks,
toilets and tubs are referred to as domestic wastewater and include components of soaps,
shampoos, human excrement, tissues, food particles, pesticides, hazardous waste, oil and grease.
These domestic wastewaters are treated at the source in septic tanks, cesspools, portable
toilets, or in publicly/privately owned wastewater treatment works. Alternately, municipal wastewater
treatments consist of more levels of treatment that provide greater wastewater cleanup with
larger amounts of sewage sludge. Primary municipal treatment remove solids that settle at the
bottom, generating more than 3,000 liters of sludge per million liters of wastewater
that is treated. Primary sludge water content is easily reduced by thickening or removing
water and contains up to 7% solids. Secondary municipal treatment process produces sewage
sludge that is generated by biological treatment processes that include activated sludge systems,
trickling filters, and other attached growth systems. Microbes are used to break down and
convert organic substances in wastewater to microbial residue in biological treatment
processes. This process removes up to 90% of organic matter and produces sludge that
contains up to 2% solids and has increased generated volumes of sludge. Methods of use
and disposal of sewage sludge include the following: Application of sludge to agricultural
and non-agricultural lands; sale or give-away of sludge for use in home gardens; disposal
of sludge in municipal landfills, sludge-only landfills, surface disposal sites and incineration
of sludge. Managing quality of sewage sludge not only involves wastewater reduction and
separation of contaminated waste from non-contaminants but also pretreatment of non-domestic wastewater.
Pretreatment does not thoroughly reduce pollutants level and therefore communities have to dispose
rather than use sludge.===Title V – General Provisions=======
Citizen suits====Any U.S. citizen may file a citizen suit against
any person who has allegedly violated an effluent limitation regulation or against the EPA Administrator
if the EPA Administrator failed to perform any non-discretionary act or duty required
by the CWA.====Employee protection====
The CWA includes an employee (“whistleblower”) protection provision. Employees in the U.S.
who believe they were fired or suffered adverse action related to enforcement of the CWA may
file a written complaint with the Occupational Safety and Health Administration.===Title VI – State Water Pollution Control
Revolving Funds===The Clean Water State Revolving Fund (CWSRF)
program was authorized by the 1987 WQA. This replaced the municipal construction grants
program, which was authorized in the 1972 law under Title II. In the CWSRF, federal
funds are provided to the states and Puerto Rico to capitalize their respective revolving
funds, which are used to provide financial assistance (loans or grants) to local governments
for wastewater treatment, nonpoint source pollution control and estuary protection.The
fund provides loans to municipalities at lower-than-market rates. The average interest rate was 1.4 percent
nationwide in 2017, compared to an average market rate of 3.5 percent. In 2017, CWSRF
assistance totaling $7.4 billion was provided to 1,484 local projects across the country.==Earlier legislation==
During the 1880s and 1890s, Congress directed USACE to prevent dumping and filling in the
nation’s harbors, and the program was vigorously enforced. Congress first addressed water pollution
issues in the Rivers and Harbors Act of 1899, giving the Corps the authority to regulate
most kinds of obstructions to navigation, including hazards resulting from effluents.
Portions of this law remain in effect, including Section 13, the so-called Refuse Act. In 1910,
USACE used the act to object to a proposed sewer in New York City, but a court ruled
that pollution control was a matter left to the states alone. Speaking to the 1911 National
Rivers and Harbors Congress, the chief of the Corps, Brigadier General William H. Bixby,
suggested that modern treatment facilities and prohibitions on dumping “should either
be made compulsory or at least encouraged everywhere in the United States.” Most legal
analysts have concluded that the 1899 law did not address environmental impacts from
pollution, such as sewage or industrial discharges. However, there were several pollution enforcement
cases in the 1960s and 1970s where the law was cited for broader pollution control objectives.Some
sections of the 1899 act have been superseded by various amendments, including the 1972
CWA, while other notable legislative predecessors include: Public Health Service Act of 1912 expanded
the mission of the United States Public Health Service to study problems of sanitation, sewage
and pollution. Oil Pollution Act of 1924 prohibited the intentional
discharge of fuel oil into tidal waters and provided authorization for USACE to apprehend
violators. This was repealed by the 1972 CWA, reducing the Corps’ role in pollution control
to the discharge of dredged or fill material. Federal Water Pollution Control Act of 1948
created a comprehensive set of water quality programs that also provided some financing
for state and local governments. Enforcement was limited to interstate waters. The Public
Health Service provided financial and technical assistance.
Water Quality Act of 1965 required states to issue water quality standards for interstate
waters, and authorized the newly created Federal Water Pollution Control Administration to
set standards where states failed to do so.When EPA first opened its doors in 1970, the agency
had weak authority to protect U.S. waters, lacking the legal power to write effluent
guidelines and possessing only general authority to require secondary treatment from industrial
dischargers.The 1969 burning Cuyahoga River had sparked national outrage; the Act grew
out of it. In December 1970 a federal grand jury investigation led by U.S. Attorney Robert
W. Jones began, of water pollution allegedly being caused by about 12 companies in northeastern
Ohio. It was the first grand jury investigation of water pollution in the area. The Attorney
General of the United States, John N. Mitchell, gave a Press Conference December 18, 1970
referencing new pollution control litigation, with particular reference to work with the
new Environmental Protection Agency, and announcing the filing of a law suit that morning against
the Jones and Laughlin Steel Corporation for discharging substantial quantities of cyanide
into the Cuyahoga River near Cleveland. It was largely based on these and other litigation
experiences that criteria for new legislation were identified.==Clean Water Act and environmental justice
==Executive Order 12898 (1994) states “… each
Federal agency shall make achieving environmental justice part of its mission by identifying
and addressing, as appropriate, disproportionately high and adverse human health or environmental
effects of its programs, policies, and activities on minority, low-income, and indigenous populations.”
The order is also intended to advocate nondiscrimination in federal programs that influence the environment
and public health, and aims to provide low-income, minority, and indigenous communities access
to public information and participation.==Case law==
United States v. Riverside Bayview Homes, Inc. (1985). The Supreme Court upheld the
Act’s coverage in regulating wetlands that intermingle with navigable waters. This ruling
was revised by the 2006 Rapanos decision. Edward Hanousek, Jr v. United States (9th
Cir. Court of Appeals, 1996; certiorari denied, 2000). In 1994, during rock removal operations,
a backhoe operator accidentally struck a petroleum pipeline near the railroad tracks. The operator’s
mistake caused the pipeline to rupture and spill between 1,000 and 5,000 gallons of heating
oil into the Skagway river. Despite not being present at the scene during operations White
Pass and Yukon Route Roadmaster Edward Hanousek, Jr. and President Paul Taylor were both held
responsible for the spill and convicted. Solid Waste Agency of North Cook County (SWANCC)
v. United States Army Corps of Engineers (2001), possibly denying the CWA’s hold in isolated
intrastate waters and certainly denying the validity of the 1986 “Migratory Bird Rule.”
S. D. Warren Co. v. Maine Bd. of Env. Protection (2006). The Court ruled that section 401 state
certification requirements apply to hydroelectric dams, which are federally licensed, where
the dams cause a discharge into navigable waters.
Rapanos v. United States (2006). The Supreme Court questioned federal jurisdiction as it
attempted to define the Act’s use of the terms “navigable waters” and “waters of the United
States.” The Court rejected the position of the USACE that its authority over water was
essentially limitless. Though the case resulted in no binding case law, the Court suggested
a narrowing of federal jurisdiction and implied the federal government needed a more substantial
link between navigable federal waters and wetlands than it had been using, but held
onto the “significant nexus” test. Northwest Environmental Advocates et al. v.
EPA (9th Cir. Court of Appeals, 2008). Vessel discharges are subject to NPDES permit requirements.
See Ballast water regulation in the United States.
National Cotton Council v. EPA (6th Cir. Court of Appeals, 2009). Point source discharges
of biological pesticides, and chemical pesticides that leave a residue, into waters of the U.S.
are subject to NPDES permit requirements. Army Corps of Engineers v. Hawkes Co. 578
U.S. __ (2016), 8-0 ruling that a jurisdictional determination by the Army Corps of Engineers
that land contains “waters of the United States” is a “final agency action”, which is reviewable
by the courts. This allows landowners to sue in court if the Army Corps of Engineers determines
that the land contains waters of the United States (and therefore falls under the Clean
Water Act).==Recent developments=====
Waters of the United States===In May 2015 EPA released a new rule on the
definition of “waters of the United States” (“WOTUS”) and the future enforcement of the
act. Thirteen states sued, and on August 27 U.S. Chief District Judge for North Dakota
Ralph R. Erickson issued a preliminary injunction blocking the regulation in those states. In
a separate lawsuit, on October 9 a divided Sixth Circuit appeals court stayed the rule’s
application nationwide. Congress then passed a joint resolution under the Congressional
Review Act overturning the WOTUS rule, but President Barack Obama vetoed the measure.On
February 28, 2017, President Donald Trump signed documents directing EPA and the Army
Corps of Engineers to review and rewrite the Obama administration’s “Clean Water Rule,”
which would clarify the WOTUS definition. The agencies were ordered to reassess the
rule consistent with promoting economic growth and minimizing regulatory uncertainty.The
Sixth Circuit appeals court stay was overturned on January 22, 2018 when the Supreme Court
ruled unanimously that challenges to the 2015 rule must be filed in United States district
courts. EPA then formally suspended the 2015 regulation and announced plans to issue a
new version later in 2018. EPA and USACE published a proposed rule on February 14, 2019 that
would revise the WOTUS definition.===Amendment===
America’s Water Infrastructure Act of 2018==Effects==To date, the water quality goals stated by
Congress in the 1972 act have not been achieved by American society: “to make all U.S. waters fishable and swimmable
by 1983;” “to have zero water pollution discharge by
1985;” “to prohibit discharge of toxic amounts of
toxic pollutants”.More than half of U.S. stream and river miles, about 70 percent of lakes,
ponds and reservoirs, and 90 percent of the surveyed ocean and near coastal areas continue
to violate water quality standards. The reasons for the impairment vary by location; major
sources are agriculture, industry and communities (typically through urban runoff). Some of
these pollution sources are difficult to control through national regulatory programs.However,
since the passage of the 1972 act, the levels of pollution in the United States have experienced
a dramatic decrease. The law has resulted in much cleaner waterways than before the
bill was passed. Agriculture, industry, communities and other sources continue to discharge waste
into surface waters nationwide, and many of these waters are drinking water sources. In
many watersheds nutrient pollution (excess nitrogen and phosphorus) has become a major
problem. It is argued in a 2008 paper that the Clean Water Act has made extremely positive
contributions to the environment, but is in desperate need of reform to address the pollution
problems that remain.A 2017 working paper finds that “most types of water pollution
declined [over the period 1962-2001], though the rate of decrease slowed over time… Our
finding of decreases in most pollutants implies that the prevalence of such violations was
even greater before the Clean Water Act.” Several studies have estimated that the costs
of the CWA (including the expenditures for the Title II construction grants program)
are higher than the benefits. An EPA study had similar findings, but acknowledged that
several kinds of benefits were unmeasured. A 2018 study argues that “available estimates
of the costs and benefits of water pollution control programs [including the CWA] are incomplete
and do not conclusively determine the net benefits of surface water quality.”==See also==
Great Lakes Areas of Concern Ocean Dumping Act
Water supply and sanitation in the United States
Oil Pollution Act of 1990

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