Environmental Law & Climate Change Law Blog

An Overview of the
CLEAN WATER ACT
Federal Water Pollution Control Act,

as amended by the Clean Water Act of 1977 (PL92-500)
as subsequently amended 33 U.S.C. 1251 et seq.

Recent Posts concerning the Clean Water Act:

1. Case Update: U.S. Supreme Court Denies Petitions for Certiorari in National Cotton Council Case. Posted February 22, 2010.
2. Clean Water Act Decision Regarding Application of Pesticides Stayed by Sixth Circuit, Posted June 11, 2009.
3. Update: NPDES General Permit for Discharges Incidental to the Normal Operation of a Vessel, posted March 11, 2009.
4. Ballast Water Discharges General Permit Begins February 6, 2009, Posted 02/01/2009.
5. Sixth Circuit Overturns EPA Rule Exempting Pesticides from NPDES Permitting.  Posted 01/08/2009
6. Chesapeake Bay Foundation Files Flawed Clean Water Citizens’ Suit Against EPA.  Posted 01/05/2009.
7. Recent Environmental Law Cases.  Posted 06/03/2008.
8. Recent Environmental Law Cases.  Posted 06/07/2008.

I. PURPOSE AND SCOPE OF THE ACT

A. Purpose of the Act 33 U.S.C. Section 1251

1. “It is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;” 33 U.S.C. Section 1251 (a)(1).
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;” 33 U.S.C. Section 1251 (a)(2).
3. “It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited; 33 U.S.C. Section 1251 (a)(3).
4. “It is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works;” 33 U.S.C. Section 1251 (a)(4).
5. “It is the national policy that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State;” 33 U.S.C. Section 1251 (a)(5).
6. “It is the national policy that a major research and demonstration effort be made to develop technology necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone, and the oceans; 33 U.S.C. Section 1251 (a)(6),and
7. “It is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution.” 33 U.S.C. Section 1251 (a)(7)

B. Waters of the United States

1. Navigable waters.
2. Congressional intent has been held to extend definition to the maximum extent allowed under constitution.

C. Act covers all discharges into waters of the United States and the conditions of such waters.

II. BASIC PROHIBITIONS 33 U.S.C. Section 1311, CWA Section 301

A. Section 301 (b)(1)-By July 1, 1977 discharges were to have met.

1. For publicly owned treatment works, effluent limitations based in secondary treatments.
2. For all other discharges effluent limitations requiring “best practicable control dischargers”.
3. For all dischargers, any more stringent standards necessary to meet Water Quality Standards or other limitations established by state law.

B. Section 301(b)(2) &(3). Effluent limitation based on Best Available Control Technology for identified toxic pollutants are to be met with 3 years of promulgation but no later than March 3, 1989.

C. 301(b)(3). Best “conventional” pollutant control was required by July 1, 1984.

D. 301(g) Provides for modification of limitation for certain non- conventional pollutants.

III. INFORMATION AND GUIDELINES-SECTION 304

A. The limitations of Section 301 are largely implemented through guidelines promulgated pursuant to Section 304.

B. Guidelines specifying effluent limitation have been promulgated for Best Practicable Control Available Control Technology for various categories of sources at 40 C.F.R. 404 through 471.

IV. NATIONAL STANDARDS OF PERFORMANCE FOR NEW SOURCES SECTION 306, 33 U.S.C. Section 1336.

A. USEPA must promulgate “National Standards of Performance” for designated categories of new sources.

B. “New Sources” means any source the construction of which is commenced after the publication of proposed regulations…” which will be applicable to such sources if such standard is thereafter promulgated in accordance with this section.

C. New Source rules must require effluent limitations achievable through “Best Demonstrated Control Technology“, process, operating methods, or other alternatives.

D. New Source Standards are included in the “Effluent Limitations and Guidelines” at 40 C.F.R., Parts 404 through 471.

V. WATER QUALITY STANDARDS

A. Water Quality Standards.

1. Water Quality Standards are the Standards specifying the conditions to be achieved in a given body of water. They usually include maximum numeric limitations for a long list of identified substances, numerical limitations for conditions such as temperature and Ph, and general prohibitions against deleterious conditions such as the presences of sludge, floating oil, or toxicity. More recently, they are likely to include complex formulae to prevent potential toxicity.
2. Water Quality Standards are promulgated pursuant to 33 U.S.C. Section 1313 (CWA Section 303):…”Such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this Act. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation.” See 40 C.F.R. Part 131
3. Water Quality Standards for interstate waters must be submitted to USEPA for review and approval. USEPA can promulgate standards if state fails to promulgate acceptable standards.
4. Water Quality Standards are not directly enforceable under the Clean Water Act but they may be enforceable directly in some states (i.e.) Illinois.

B. Water Quality Based Effluent Standards. (33 U.S.C. Section 1312, C.W.A. Section 302).

1. Water Quality Based effluent limitations may be promulgated by the Administrator.
   

   …(a) Whenever, in the judgment of the Administrator or as identified under Section 304(l) discharges of pollutants from a point source or group of point sources, with the application of effluent limitations required under Section 301(b)(2) of this Act, would interfere with the attainment or maintenance of that water quality in a specific portion of the navigable waters which shall assure protection of public health, public water supplies, agricultural and industrial uses, and the protection and propagation of a balanced population of shellfish, fish and wildlife, and allow recreational activities in and on the water.

2. The Administrator must give a public notice and hold a hearing on its proposal.
3. These limits will be more stringent than the technology based limits in Section 301.

C. Water Load Calculations. Section 303 (d)(1) (33 U.S.C. Section 1313(d)(1)(a))

1. When the combination of effluent limitations are insufficient to achieve Water Quality Standards, states must calculate the total load of chemicals or “heat” which the body of water can receive without violating the standards.
2. The State may then allocate the allowable load between all discharges to insure achievement of the standards.

D. Effluent Standards

1. Water Quality Standards were to have been achieved by July 1, 1977 pursuant to 301(b)(1)(c).
2. The EPA has held that there was no authority to extend this deadline.

E. Toxic Pollutant Approaches. (Section 304(1).

1. Each State was to submit a “Long-List” of water bodies where toxic Water Quality Standards are exceeded or the water quality will not assure protection of public health, public water supplies, agricultural and industrial users or protection of aquatic life, etc.
2. The State was then required to submit a “Shortlist” of facilities causing the toxic water quality violations.
3. The state then had to submit an “individual control strategy” to be included in individual permits for each source on the short list.
4. Courts have held that inclusion on list or promulgation of individual control strategy are not renewable in federal courts although Region V rejected one submission heard in public comments.

VI. TOXIC EFFLUENT STANDARDS SECTION 307(a), 33 U.S.C. Section 1317(a). See 40 C.F.R. Part 124.

A. Toxic Effluent limitations requiring “Best Available Technology Economically Achievable” must be promulgated pursuant to Section 307(a)(2) i.e., 40 C.F.R. Part 129 and Parts 404 through 471.

B. USEPA does not normally promulgate toxic effluent limitations separate from the Effluent Guidelines Process.

VII. PRETREATMENT SECTION 307(b), 33 U.S.C. Section 1317(b)

A. Section 307(b) requires pretreatment standards for toxic pollutants discharge to publicly owned treatment works which pollutants are determined not to be susceptible to treatment or which interfere with the treatment works or sludge disposal.

B. In effect USEPA usually adopts pretreatment standard for toxic pollutants identical to the Best Available Pretreatment Standards under Section 301, 304, 307(e) as part of the Effluent Limitation and Guidelines at 40 C.F.R. Parts 404 through 471.

C. In addition, USEPA has promulgated General Pretreatment Standards at 40 C.F.R. Part 403.

1. The General Standards (40 C.F.R. Section 403.5) include general Prohibitions or standards for
   1. interference;
   2. pass-through;
   3. temperature;
   4. Ph;
   5. fire explosion etc.;
   6. Violation of local limits;
2. The General Standards specify how the categorical standards will apply to each source including a combined waste stream formula which governs the determination of limitations when regulated and unregulated flows, or flows governed under different standards are mixed prior to discharge. 40 C.F.R. Section 403.6.
3. 40 C.F.R. Section 403.12 specifies the requirements for:
   1. Baseline monitoring report and compliance schedules are required from sources subject to new categorical regulations 40 C.F.R. Section 403.12(b);
   2. Monitoring and Reporting Requirements for existing sources of 40 C.F.R. Section 403.12(g).
   3. Additional requirements.

D. “Removal Credits”

1. Section 307(b)(1) of the CWA provides that the publicly owned treatment works may adjust the level of pretreatment required to reflect the removal of pollutants by the treatment POTW such that the final limitation requires the same level of treatment as though the pollutant was discharged directly to the water way and does not prevent disposal of sludge in accordance with Section 405. These adjustments have been called “removal credits.”
2. The U.S. Court of Appeals held that no removal credits could be granted until U.S.E.P.A. promulgated sludge rules pursuant to Section 405.
3. Congress provided that removal credits could be approved until August 31, 1987 when sludge regulations were not to have been promulgated.
4. USEPA published final sludge rules February, 1993 at 58 Fed.Reg. 9248, 40 C.F.R. Parts 257, 1403, and 503. They provide specific limitations on the concentration of pollutants that may be allowed in sludge for specified disposal options if removal credits are to be allowed.

VIII.PERMITS-THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM SECTION 402, 33 U.S.C. Section 1342; 40 C.F.R. PART 122 (USEPA Administered Permit Programs); part 123 (State Program Requirements); Part 124 (Procedures for Decisionmaking); and Part 125 (Criteria and Standards for the National Pollutant Discharge Elimination System)

A. The National Pollutant Discharge Elimination System (“NPDES”) permit is the basic regulatory instrument of the Clean Water Act.

1. NPDES permits may be issued either by USEPA or a delegated state.
2. NPDES permits must contain all the limitations required by the Act;
3. NPDES permits also set forth schedules of compliance monitoring and reporting requirements,
4. NPDES permits for publicly owned treatment works (POTWs) must require control of industrial discharges (Section 402 (b)(8);
5. Section 402(k) provides “Compliance with a permit issued pursuant to this section shall be deemed compliance, for purposes of section 309 and 505,with Sections 301, 302, 306, 307, and 403, except any standard imposed under Section 307 for a toxic pollutant injurious to human health.”

B. “Anti-Backsliding” Section 402(d):

1. Congress has prohibited the issuance of permits which contain any less stringent limitations than the prior permits except so provided. This is called anti-backsliding.
2. Less stringent limits may be granted if:
   1. “There have been material and substantial limitations to facility;”
   2. “There is new information;”
   3. “There are events over which permittee has no control;”
   4. “The permittee has received a permit modification;”
   5. “The permittee installed the treatment facilities required by the prior permit and they did not meet the limit;”

C. “Storm Water Permits” Section 402

1. Who Must Obtain a Permit?
   1. USEPA requires NPDES permits for all discharges of pollutants from point sources into waters of the United States. (40 C.F.R. 122.1(b)).
   2. However, prior to October 1, 1992 USEPA is not allowed to restorea permit for a discharge composed entirely of stormwater, (33 U.S.C. Section 1342 (p)) except in the following cases:
      1. Discharges which were already permitted prior to Feb. 4, 1987
      2. Discharges associated with industrial activity including construction disturbing over 5 acres of land. (40 C.F.R Section 122.26(b)(14))
      3. Discharges from large municipal separate storm sewer systems (e.g., Chicago, New York, Los Angeles)
      4. Discharges from medium separate stormsewer systems (e.g., Peoria, Rockford, Albany, Rochester, Sacremento, San Jose)
      5. Discharges which either USEPA or the State determines are contributing to a violation of the water quality standards or are significant contributors of pollutants to surface waters
      6. The operator of a storm sewer system through which stormwater associated with industrial activity is discharged (40 C.F.R. Section 122.26(a)(6))
      7. Discharges designated by USEPA as being an interrelated with the dischargers of large or medium municipalities (40 C.F.R. 122.26(b)(4)(3)(iii) and (7)(iii))
      8. Discharges designated by USEPA as being within a stormwater management regional authority that includes a large or medium system (for example, a sanitary district) (40 C.F.R Section 122.26(b)(4),(7))
2. What Must be Included in the Application?
   1. Individual industrial applications (except construction, mining, oil and gas exploration) (40 C.F.R. Section 122.26(c)(1) must include:
      1. Topographic map showing:
         1. drainage areas
         2. paved areas
         3. areas used for past and present storage or disposal of significant substances, raw materials, fuels, wastes, solvents, etc.
         4. materials loading areas
         5. areas where herbicides, pesticides, fertilizers and soil conditioners are applied
      2. List of all significant materials exposed to stormwater in past 3 years
      3. Certification that all stormwater outfalls have been tested or evaluated for the presence of non-stormwater discharges
      4. Information on significant leaks or spills within the last 3 years
      5. Report regarding whether the discharger “has reason to believe” it is discharging pollutants listed in Tables II through V of 40 C.F.R. Section 122 App.A.
   2. Sampling data for:
      1. Applicable effluent guidelines
      2. Any pollutant listed in the NPDES permit for the plants discharge process
      3. BOD, TSS, Oil and grease, phosphorus, nitrogen, and nitrates and nitrite;
      4. Pollutants in Tables II through V of 40 C.F.R. Section 122 App.A if they are believed to be present above the listed threshold amounts. (See 40 C.F.R. Section 122.21(g)(7)(iii) and (iv)
   3. Group applications must include:
      1. Part I
         1. Description of group
         2. Justification for grouping
         3. Identify representative dischargers (usually 10% of group)
      2. Part II
         1. Sampling data for representative discharges
   4. Applications for large and medium municipal separate storm sewer systems must include: (40 C.F.R. Section 122.26(d))
      1. Part 1
         1. General land use information
         2. Field screening for illicit connections during dry weather (Approx. 500 screening points for large municipalities and 250 points for medium municipalities)
         3. Submission for all existing data on discharges from the storm sewer
         4. Description of existing stormwater management programs
      2. Part 2
         1. Identification of each facility which may discharge stormwater associated with industrial activity to the municipal sewer
         2. Sampling at 5-10 outfalls during storm events
         3. Management program to reduce the discharge of pollutants to the maximum extent practicable
         4. Program to reduce pesticides, herbicides and fertilizer runoff
         5. Program to remove illicit discharges including, when they impact water quality residential car washing, lawn watering, crawl space pumps.
         6. Spill prevention and containment plan
   5. When Were Applications Due? (40 C.F.R. Section 122.26(e) See also (56 Fed.Reg. 12100-02).
      1. 9/30/91-Group Part 1
      2. 10/1/92-Individual Industrial
      3. 11/18/91-Large Municipal-Part 1
      4. 11/10/92-Large Municipal-Part 2
      5. 10/1/92 (or 12 months after Part 1 is approved, whichever comes first) -Group – Part 2
      6. 5/18/92-Medium Municipal-Part 1
      7. 5/17/93-Medium Municipal-Part 2
      8. 60 days after notice-for a “designated polluter” (40 C.F.R. Section 122.26(c)(5)
   6. What Limits Must be Met?
      1. State effluent limits
      2. State water quality limits
      3. Any additional limits added by the permit-issuing authority
   7. Practical Considerations
      1. Determine whether a discharge will be covered by a general permit, check with city, county and sanitary districts.
      2. Begin stormwater management before sampling, if possible

IX. ENFORCEMENT SECTION 309, 33 U.S.C. Section 1319

A. Civil Enforcement

1. The Administrator may issue a notice of violation followed 30 days later by an order to assess violation of:
   1. Section 301, “Effluent limitation”; 302, “Water Quality based effluent Limitations”; 306, “New Source Standards”; 307, “Toxic and Pretreatment Standards”; 308, “Records, Reports and Inspections”; 318, “Agriculture” or 405, “Sludge Requirements”, or
   2. Any permit limitation or condition in an NPDES permit.
2. The Administrator may file a civil action for injunction for any of the above listed violations; Section 309(c);
3. The Administrator may also seek civil penalties of $25,000 per day for each day of violation (Section 309(d).

B. Criminal Penalties:

1. Any person who “negligently” violates any of the above listed sections or an NPDES permit or discharges any pollutant to a POTW which he knew or should know caused a personal injury or property damage is subject to a fine of $2500 to $25,000 per day and up to one year of imprisonment for the first offense or twice that for the second offense;
2. Any person who knowingly commits the same acts is punishable by fines of $50,000 per day and up to 3 years in prison and the second offense can result in doubling the fines.
3. If a person violates knowingly any of the above listed prohibitions and thereby places another in danger of serious bodily injury is subject to fines of $250,000 or 15 years in prison. A corporation may be subject to fines of $l,000,000
4. Anyone making false reports or falsifying records is subject to fines of $10,000 or 2 years in prison for the first violation or twice for the second.

C. Administrative Penalties Section 309(g):

1. Where the Administrator finds anyone has violated any of the listed sections or a permit limitation or the Secretary of the Army finds a violation of Section 404, a Class I or Class II administrative penalty may be assessed.
2. A Class I Civil Penalty:
   1. “civil penalty” may not exceed $10,000 per violation or a total or $25,000;
   2. A reasonable hearing providing an opportunity to be heard and to present evidence must be provided.

1. Class II Civil Penalties:
   1. Class II penalties may not exceed $100,000 per day but may group to $125,000;
   2. Class II penalties must be assessed in accordance with the more formal provisions of Sections 554 of Title 5 of the U.S. Code;
2. Civil penalties under this section must be by public notice, and be subject to public comment or hearing.
3. Judicial Review of these administrative “civil penalties” is provided in the District Court for Class I Civil Penalties and is the U.S. Court of Appeals for Class II civil penalties.

D. “Person”. For purposes of enforcement Section Person includes any responsible corporate officer.

X. OIL AND HAZARDOUS SUBSTANCE LIABILITY. SECTION 311, 33 U.S.C. Section 1321, see 40 C.F.R. Parts 110 through 117.

A. Congress has provided that the discharge of “oil” or “hazardous substances” into the United States is prohibited if “harmful to public health or welfare….”

B. Any owner or operator discharging such oil or hazardous substance is subject to a civil penalty to be assessed by Coast Guard.

C. Any person who is in charge of a facility which releases oil or hazardous substance and fails to notify the National Emergency Center is subject to fines of $10,000 and imprisonment of up to one year.

D. If notice is given, it may not be used against the person in any criminal case except for perjury or false statement.

E.The President has, pursuant to this Section, promulgated a National Emergency Plan for removal of oil or hazardous substance.