Clean Water Act Federal Water Pollution Control Act of 1972

Clean Water Act has worked better than some environmental laws aspirational goals multiple warhead enforcement based on Best Available Technology

Most progress in environmental laws is the compelled search for alternatives “if you can do better, you will”

Objectives and goals “restore the chemical, physical and biological integrity of the nation’s waters” goals: eliminate discharge of pollutants by 1985 fishable and swimmable waters by 1983 no toxins in toxic amounts

Still… over 40 percent of our assessed waters do not meet water quality standards What are the implementation challenges?

Framework of the CWA national effluent limitations on point source dischargers and national permit program water quality standards pretreatment requirements/ grant $ for POTWs wetlands protection

waters of the U.S. Surface waters used in interstate commerce and their tributaries; adjacent wetlands and estuariesestuaries does not have to be “navigable”

point source any discernible, confined and discrete conveyance, from which pollutants may be discharged some exemptions for agriculture irrigation return flows and silvaculture

National water quality inventory 305(b) report 303(d) list

Cornerstone of CWA

Effluent limitations CWA uses a national permit system to apply effluent standards to point sources National Pollution Discharge Elimination System (NPDES) discharge of pollutant into navigable waters is illegal without a permit

How NPDES works EPA sets technology based standards based on the BAT for industrial categories Companies within that category have to meet that standard, and prove it with a Discharge Monitoring Report

permits are reviewed every five years subject to more stringent limitations if receiving waters do not meet water quality standards, or if state sets a more stringent limit Discharge Monitoring Report basis for citizen enforcement

How do citizens enforce environmental laws? Act as private attorney generals (sue the company; must show direct injury) Sue the agency for failure to perform a non-discretionary duty EPA can overfile

NPDES Examples: You discharge wastewater into a creek that is dry eight months of the year. Need a permit? Yes: navigable waters is a constitutional rather than a physical concept--need not be sailable or even wet. A hunting club shoots lead shot into the water. Point source? Yes: Court held that the gun was a “discernible, discreet conveyance.”

Water quality standards states identify designated use: drinking water, agriculture, recreation based on designation, state determines if water meets standard and sets permissible concentrations for various pollutants in the water numeric criteria: milligrams per liter narrative criteria: no visible foam; no toxins in toxic amounts

Effect of water-quality standards designed as a backstop to NPDES prohibits anti-degradation by states translated back to point sources during permitting Section 401

Total Maximum Daily Loads Sec. 303 of CWA requires states to identify impaired water segments and set TMDLsTMDLs Estimate the capacity of a specific water body to assimilate pollution and still achieve designated uses. goal is to restrict pollution from all sources

TMDLs… Why controversial?

The 303(d) report National trends National Wisconsin

Non-Point Source Sec. 319: “carrot” approach federal grant program provides money to states with approved NPS management programs

issue: Initially only $38 million/year authorized ($237 million in 2002) Need $1 billion/year Insufficient funding requiring a 40% match difficult to regulate (nature of the problem)

Pretreatment standards Publicly Owned Treatment Works are point sources Industries may discharge to a POTW, provided they meet pretreatment standards

issue: wastewater treatment and new construction is expensive appropriated $69 billion since 1972; total $390 billion to replace infrastructure EPA estimates that $148 billion is needed for operation and maintenance State Revolving Fund program: 80% of POTWs that missed compliance deadlines are small communities (l.t. 10,000)

Wetlands wetlands are ecological resources over 53% of wetlands in lower 48 states have been lostlost About 50,000 acres annually were lost in 1990s

If there is any fact which may be supposed to be known by everybody and therefore by the courts, it is that swamps and stagnant waters are the cause of malaria and malignant fevers, and that public power is never more legitimately exercised than in removing such nuisances.” – The Swamp Land Act of 1850, U.S. Supreme Court

Wetlands protection The Clean Water Act has two permitting programs: Section 402 creates NPDES for point source discharges Section 404 creates a permit program for the discharge of dredged and fill material into the waters of the U.S.

Overview of the Section 404 program Permit from the Army Corps of Engineers Covers the discharge of dredged or fill material into wetlands (either private or public lands) EPA exercises veto authority

Normal farming activities are exempt from permitting requirements unless proposed activity will subject “navigable water to new use.” Wetlands are not defined by the CWA, but by agencies

What is a wetland? U.S. Army Corps of Engineers “Those areas that are inundated or saturated by surface or 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. Wisconsin Department of Natural Resources “An area where water is at, near or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation and which has soils indicative of wet conditions.”

After SWANNC (2001)… US Supreme Court limited jurisdiction of the COE and Migratory Bird Rule relating to isolated, intrastate wetlandsCourt Future options?

Two kinds of permits Individual: for major projects General: for smaller, or commonly done, projects

Activity/decisions 75,000 per year 7% individual permit; 99.7% approved; 4 month review process Remainder are general permits

Individual permit: applicant shows no practicable alternative no statutory violations no significant adverse impacts all reasonable mitigation measures will be taken water-dependent projects assume no practicable alternative

State involvement states may receive delegated authority States oversee Water Quality Certification (Sec. 401) assurance that activity will not violate water quality standards also subject to county/city zoning requirements

An example Daddy Warbucks seeks to build a marina, hotel and waterfront arcade along the Green Bay shoreline that will take 80 acres of wetlands. He hires Fred Slick, smooth-talking attorney, to help facilitate the 404 review process. How will he make his case?

An applicant must show: 1. no practicable alternative; 2. no statutory violations; 3. no significant adverse impacts; 4. all reasonable mitigation measures will be taken. Water dependent projects (such as the marina) are easier to justify than the hotel and arcade (non-water dependent)

Warbucks’ permit is denied, which effectively stops all building on his land. Does he have any recourse? Warbucks may sue for compensation under the 5th amendment

Implementation issues few permits denied regulatory takings Does not cover other activities on wetlands (such as draining or flooding) Misses “pocket” wetlands Exempts major categories of wetlands users (farming) confusing to developers--must comply with local, state, federal requirements Treats all wetlands equally (instead of identifying the most important)

Ballona wetlands How does this case illustrate the difficulty of protecting wetlands? What is the value of civic engagement in environmental laws?