Canal Restoration Regulatory Background The Clean Water Act, an introduction: Basic structure for regulating discharges of pollutants into U.S. waters, as well as water quality standards for surface waters. Objective: “[T]o restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Federal and state governments share duties to monitor and regulate water pollution, with states bearing primary responsibility for implementing pollution control mechanisms and the federal government overseeing the states’ actions.

Canal Restoration Regulatory Background The Clean Water Act, State obligations: Establish water quality standards to define quality for each waterbody in its borders. – Three components to water quality standards: 1.The designated uses of the waterbody 2.The water quality criteria necessary to support the designated uses (expressed as constituent concentrations, levels, or narrative statements) 3.Anti-degradation policy that specifies the circumstances under which the state may authorize lowering of water quality criteria Identify and compile a list of waters that do not meet applicable water quality standards and are unsafe for their designated purpose. – Known as the “Impaired Waters List” or “Section 303(d) list”

Canal Restoration Regulatory Background The Clean Water Act, Florida implementation: Florida Department of Environmental Protection (FDEP) promulgated water quality standards in All Florida waters fall into 1 of 5 surface water classifications. Numbers run from most protected (Class I) to least protected (Class V) Florida Keys nearshore waters are classified as Class III (Recreation, Propagation and Maintenance of a Healthy-Well- Balanced Population of Fish & Wildlife) In 1985, the waters surrounding the Florida Keys were designated as “Outstanding Florida Waters” (OFW) – Designation is intended to protect existing good water quality by eliminating the discharge of any pollutant that would degrade existing conditions. In 2002, the nearshore waters and canals of the Florida Keys were added to the state’s Impaired Waters List.

Canal Restoration Regulatory Background The Clean Water Act, the TMDL requirement: Triggered when a waterbody is included on an Impaired Waters List. Total Maximum Daily Load (TMDL) establishes the maximum quantity of the pollutant that can be received on a daily basis without exceeding the standard. – Required for every pollutant causing the waterbody not to meet the applicable standards As an alternative to a TMDL, a Reasonable Assurance Document (RAD), may be developed when local management activities are already in place or planned that can achieve water quality targets. – Legal v. Practical (Walt Reigner) – Failure to implement reasonable assurances risks TMDL – TMDLs are stricter and may provide more opportunities for litigation and enforcement actions

Canal Restoration Regulatory Background The Clean Water Act, Enforcement: Enforcement mechanisms include: – Injunctions – Civil administrative and judicial actions – Criminal prosecutions Who may bring an action? – EPA – U.S. Army Corps of Engineers – States enforcing Section 402 – Private citizens

Canal Restoration Regulatory Background The Clean Water Act, Liability Civil liability under the CWA not limited to intentional violations; statute provides for strict liability “The CWA contains no express provision allowing for contribution.” Middlesex Cnty. Sewerage Auth. V. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20 (1981). – In contrast to CERCLA and Oil Pollution Act Prevailing view: Joint and several liability claims not allowed under CWA. See, e.g., U.S. v. Savoy Senior Housing Corp., No. 06-cv-031, 2008 WL (W.D. Va. Mar. 6, 2008). Counter view: Emphasizes common law. “[T]here is a right to contribution under the CWA. The source of this right is, as in CERCLA, the prevailing common law rule permitting contribution among joint tortfeasors.” Mid-Valley Pipeline Co. v. S.J. Louis Const., Inc., 847 F. Supp. 2d 982 (E.D. Ky. 2012).