Clean Water Act

The Clean Water Act is a U.S. federal law that regulates the discharge of pollutants into the nation's surface waters, including lakes, rivers, streams, wetlands, and coastal areas. Passed in 1972 and amended in 1977 and 1987, the Clean Water Act was originally known as the Federal Water Pollution Control Act. The Clean Water Act is administered by the U.S. Environmental Protection Agency (EPA), which sets water quality standards, handles enforcement, and helps state and local governments develop their own pollution control plans.

The original goal of the Clean Water Act was to eliminate the discharge of untreated waste water from municipal and industrial sources and thus make American waterways safe for swimming and fishing (the use of surface water for drinking purposes is covered under separate legislation, the Safe Drinking Water Act). Toward this end, the federal government provided billions of dollars in grants to finance the building of sewage treatment facilities around the country. The Clean Water Act also required businesses to apply for federal permits to discharge pollutants into waterways, as well as to reduce the amount of their discharges over time.

The Clean Water Act has been credited with significantly reducing the amount of pollution that enters the nation's waterways from "point sources," or municipal and industrial discharges. As of 1998, 60 percent of American lakes, rivers, and shoreline were considered clean enough for swimming and fishing. "In the years following passage of the Clean Water Act, the EPA largely succeeded in stemming the 'point source' discharges of big industrial and municipal offenders, whose pipes spewed chemicals directly into oceans, rivers, lakes, and streams," wrote Jeff Glasser and Kenneth T. Walsh in U.S. News & World Report. "It has become clear, however, that 'point source' pollution is only part of the problem."

By the late 1990s, the EPA had changed its focus under the Clean Water Act to emphasize eliminating nonpoint source pollution, like chemicals from agricultural runoff or erosion from logging or construction activities. In a 2000 report to Congress, the EPA cited these diffuse sources of pollution as the top factors making the remaining 40 percent of the nation's waterways too polluted for swimming or fishing. As scientists increasingly recognized the value of wetlands in filtering out pollution, the EPA also began to emphasize wetlands protection under the Clean Water Act. Businesses must be aware of the expanding applications of the Clean Water Act. The law can affect not only discharges of pollution from factory pipes, but also incidental pollution resulting from the activities of smaller enterprises, such as residential development or the construction of a golf course or office building.

PROVISIONS CREATE CONTROVERSY

Under the Clean Water Act, the EPA sets national water quality criteria and specifies levels of various chemical pollutants that are allowable under these criteria. The discharge of regulated chemicals into surface waters is controlled by the National Pollutant Discharge Elimination System (NPDES), which requires polluters to obtain federal permits for every chemical they discharge. The permits, which can be issued by the EPA or by state government agencies, gives a business or municipality the right to discharge a limited amount of a specific pollutant. The NPDES has been criticized by industry groups for issuing ambiguous regulatory policies and causing long delays in granting permits. In 2000, the EPA sought to address these concerns through a number of initiatives designed to streamline the permit process for municipal and industrial discharges of wastewater.

The EPA also took steps toward cleaning up polluted waterways and regulating nonpoint source pollution in 2000. The agency introduced new rules that encouraged individual states to identify dirty waterways and establish standards to help eliminate sources of pollution. The states were required to come up with a maximum amount of pollution that each waterway could absorb. This measurement was known as the Total Maximum Daily Load (TMDL). Then the states had to decide which local landowners or businesses needed to reduce their pollution levels to meet the TMDL. The states were also required to evaluate future development plans near the waterways to make sure they would not increase pollution levels.

It soon became clear that the TMDL program would be very controversial. "At the heart of the controversy is a long-neglected provision of the Clean Water Act that requires states to identify rivers and lakes too polluted to meet water-quality standards for fishing and swimming," Margaret Kriz explained in National Journal. "Under the watchful eye of the EPA, each state must rank its waterways for cleanup and develop site-specific plans for curbing pollution flowing into the water body."

Some cities and industry groups worried that the new provisions would discourage development along already-polluted waterways and restrict the rights of property owners. Others complained that compliance with the new regulations would be too expensive. Finally, some people claimed that the new regulations served only to expand the EPA's influence over state and local government matters. But former EPA director Carol Browner disagreed with this assessment. "There's been a certain amount of misinformation about this being a top-down, one-size-fits-all approach. That's not true," Browner told Kriz. "The TMDL approach is led by the states. They assess the pollution levels of their own waters, and they make the key decisions about reducing pollution in each body of water based on state water-quality standards."

Another area of controversy involves the regulation of wetlands and the need to obtain federal permits to build on a wetland. Under the provisions of the Clean Water Act, the U.S. Army Corps of Engineers has jurisdiction over navigable waterways and associated wetlands. Two consolidated law suits—Carabelli v. United States Army Corp of Engineers and United States v. Rapanos—are scheduled to be heard by the U.S. Supreme Court in the summer of 2006. In each case there is a dispute as to whether a particular wetland falls under the jurisdiction of the Clean Water Act. The ruling in these cases will determine whether and when a non-navigable and even man-made waterway, such as a ditch or storm-sewer system, can be considered a "navigable water" under the Clean Water Act and thus be subject to federal permitting requirements. These cases are being watched very closely by builders, developers, and municipalities since their outcome will have a bearing on the permitting requirements for all future developments on and/or near wetlands.

As with most regulatory laws, clarifications of the law are ongoing. Businesses involved in any way with more than a limited, non-industrial use of water must follow developments related to the protection of waterways.

see also Environmental Law and Business

BIBLIOGRAPHY

Agnese, Braulio. "Legal Action." Builder. January 2006.

Glasser, Jeff, and Kenneth T. Walsh. "A New War over the Nation's Dirty Water." U.S. News and World Report. 17 July 2000.

Hoover, Kent. "Builders: 'Clarification' of Wetlands Law Illegal." Business First of Buffalo. 21 August 2000.

Kriz, Margaret. "Testing the Waters at the EPA." National Journal. 22 April 2000.

Marriott, Betty Bowers. Environmental Impact Assessment: A Practical Guide. McGraw-Hill, 1997.

O'Reilly, Brendan. "EPA, Lawmakers, and Timber Fight to the End." Arkansas Business. 11 December 2000.

Steinway, Daniel M. "Court Case Offers Prospect of Liability Protection under the Clean Water Act." Corporate Counsel. October 2000.

                                Hillstrom, Northern Lights

                                  updated by Magee, ECDI

Clean Water Act

The Federal Water Pollution Control Act Amendments of 1972, commonly referred to as the Clean Water Act, is one of the most important and far-reaching environmental statutes ever passed by the U.S. Congress. It is still one of the most controversial pieces of legislation ever passed. More than 30 years since its passage, key provisions of the act continue to be debated at all governmental levels, and lawsuits frequently are brought to federal courts under the act. To understand why the Clean Water Act remains controversial, it is necessary to review the history of the legislation, its goals, and its methods of achieving those objectives.

Water Quality as a National Interest

The 1972 Clean Water Act represented a radical departure from previous federal water quality legislation. Beginning in 1948, Congress declared it to be in the "national interest" to assure a high level of water quality throughout the United States. It passed additional water pollution control laws in 1956, 1961, 1965, 1966, and 1970.

While each subsequent act was more stringent than the previous ones, they all contained the philosophy that water quality was primarily the responsibility of the states. It was the role of the federal government to assist the states financially, to conduct basic water research, and to maintain water quality in interstate waters. But the creation and enforcement of quality standards for most of the waters in the United States—intrastate lakes, rivers, streams, wetlands , and ponds—were left to state and local governments.

Federal Responsibility.

The 1972 Clean Water Act abandoned the approach that state and local governments were primarily responsible for ensuring water quality. In the midst of a national environmental movement, whose leaders claimed that virtually nothing had been achieved by relying on state action to reduce water pollution, the 92nd Congress embarked upon a bold new course. Although the 1972 act incorporated some elements contained in previous legislation, such as generous financial assistance to state, tribal, and local governments to construct wastewater treatment facilities, it also charted new waters in federal regulatory policy, and in relations between the federal government and the states.

Regulatory Objectives

The regulatory philosophy contained in the Clean Water Act is referred to as the command-and-control, or standards-and-enforcement, method. No longer would the federal government wait for the states to devise their own water quality standards, since few had done so when given the opportunity. Rather, Congress gave this responsibility to a new federal agency, the Environmental Protection Agency (EPA). Under authority contained in the 1972 legislation, the EPA had primary responsibility for implementing the ambitious and optimistic goals of ensuring that all waters of the United States be "fishable" and "swimmable" by 1983, 10 years after the act's passage.

The 1972 Clean Water Act also set as a lofty goal the "zero discharge" of pollutants into the nation's waters by 1985. Congress passed related legislation also at this time to ensure that its intent to cover all waters of the United States was clear. In 1972, Congress passed the Marine Protection, Research, and Sanctuaries Act, known as the Ocean Dumping Act, and in 1974 the Safe Drinking Water Act. The EPA was given authority to implement these acts as well.

Rigorous Demands.

In order to make as much progress as possible in cleaning up the nation's waters in a short period of time, the EPA embarked upon what is called a "technology-forcing" regulatory strategy. That is, the agency placed rigorous and rigid demands on those who were regulated by the statute—mainly municipalities and industries at first—to achieve increasingly higher levels of pollution abatement. Industries were told to install the "best practicable control technology" by 1977, and municipalities were told to achieve secondary treatment of their wastewater by that date.

Federal Construction Grants.

To assist local governments in meeting these deadlines, the 1972 act also provided for a generous federal grant program to construct modern treatment facilities. Indeed, much of the nation's water quality infrastructure was built in the 1970s, and an issue for today's politicians in Washington, D.C., is whether to make a similar investment in bringing an aging system up-to-date. The EPA has estimated that it could cost as much as $140 billion to accomplish that objective.

Amendments

The 1972 Clean Water Act has been amended three times: in 1977; in 1981 when Congress passed the Municipal Wastewater Treatment Construction Grants Amendments; and in 1987 with the Water Quality Act. All of these statutes reaffirmed the federal interest in assuring water quality in the United States, but they also recognized the difficulty of achieving the goals set forth in the 1972 act within the time period specified. Thus, timelines were pushed forward, and the rigid command-and-control regulatory approach was modified. It was replaced, in part, by a more flexible approach that stressed partnerships between the federal government and the states, tribal governments, and municipalities in achieving common purposes.

Sources of Pollution.

Another important distinction between the original act and the 1987 revision was in its emphasis on the sources of water pollution in the United States. Prior to 1987 most programs were directed at eliminating what is called point-source pollution: that is, discharges into water that are more or less easily tracked to their sources. Pipes and other outfalls are examples of point-source pollution.

By 1987, however, it became clear that a great deal of pollution was coming from nonpoint sources. It was estimated that over 50 percent of the nation's remaining water pollution problems was coming from sources that are not easily identified, such as runoff from agricultural lands, construction sites, urban areas, and even forests.

Under Section 319 of the 1987 legislation, Congress authorized measures to address these diffuse sources of pollution by directing states to develop and implement management programs targeting their major nonpoint sources. Federal grants, covering up to 60 percent of the program costs, also were authorized to assist states in tackling this difficult pollution problem.

Overdue Reassessment?

There has not been a major revision to the Clean Water Act since 1987, and many feel that a comprehensive reassessment of accomplishments and failures is long overdue. The reason that such legislation has been stalled in Congress for so long is that the original 1972 act contained a few highly controversial programs, the most contentious of which may be the national wetlands protection program. Also known as the Section 404 Program, the 1972 act declared a federal interest in the protection of all wetlands in the United States. It set up a complex regulatory program administered jointly by the U.S. Army Corps of Engineers and the EPA under which anyone planning to dredge, drain, or fill a wetland must first secure a permit from the Corps.

The EPA exercises veto authority over Corps decisions, while other federal agencies, in particular the U.S. Fish and Wildlife Service, provide additional input to the process. Although the process has been streamlined and simplified since its inception, it remains controversial for property owners wishing to alter their lands. Certain states, too, have claimed that the program is an unwarranted intrusion into their domain; in contrast, most environmental organizations solidly support it.

Issues of Contention.

Over the years, numerous court cases have addressed various issues concerning the wetlands protection program. A 2001 Supreme Court case, Solid Waste Agency of Cook County, Illinois, v. U.S. Army Corps of Engineers, found that federal jurisdiction did not extend to isolated wetlands such as the one Cook County planned to alter. With this important decision, the scope of the national wetlands protection program is reduced and returned to what it was some 30 years ago—at least until Congress revisits this aspect of the Clean Water Act.

Another contentious issue arising out of the Clean Water Act and its revisions involves the setting of precise water quality standards by the states and the EPA. The original act required states to identify pollution-impaired water areas and then develop "total maximum daily loads" (TMDLs) for each waterbody. TMDLs are the maximum amount of pollution that a waterbody can receive without violating water quality standards. If the state fails to act, then the EPA is required to undertake this time-consuming and technologically challenging determination.

Most states have lacked the resources to undertake this task, and the EPA has been reluctant to step in and assume responsibility, in part because it, too, lacks the necessary personnel to do the job nationwide. Consequently, since the late 1980s, citizen groups have filed more than forty lawsuits in thirty-eight states against the EPA and the states for failing to implement the TMDL requirement. During the Clinton administration, the EPA attempted to strengthen the enforcement of this program, but with the change in the presidency after the 2000 election, that proposal has been tabled. As with the wetlands issue, scholars and other interested parties note that the time has come for the U.S. Congress to revisit the Clean Water Act of 1972.

Aspirations and Deficiencies

If and when Congress reconsiders this historic piece of legislation, it will want to look closely at what has been accomplished, and by what means. The Clean Water Act is not without its critics. Even the EPA acknowledges that the results are mixed: Today, 40 percent of the waters surveyed by the states fail to meet national water quality standards.

Although the Clean Water Act was well intentioned, some scholars have found it to be an instance of flawed public policy-making. Cornell University political scientist Theodore Lowi wrote in 1979 that Congress knew nothing about water pollution when it was writing the act, and so simply mandated a regulatory agency, the EPA, to do whatever it saw fit. This was a recipe for political chaos, Lowi charged, which inevitably would result in the federal courts becoming deeply involved in the water pollution control policy process. Indeed they have, as noted earlier.

Another critic of federal pollution control policy, Barry Commoner, a scientist and spokesperson for the environmental movement for nearly 50 years, wrote in a 1990 book that both the Clean Water and Clean Air Acts relied far too much on "control" and too little on "prevention." Noting that waste, once produced, has to go somewhere, the federal approach has been largely to try to control the effects of municipal, industrial, and agricultural waste production. The EPA should have spent more time working on the causes; that is, in preventing it in the first place, through such measures as recycling, reducing, and reusing (known as "the three Rs" of conservation).

The Clean Water Act of 1972 and its revisions spoke to the highest aspirations of the American people with regard to the environment they wished to inhabit. Although deficient in a number of ways, it nevertheless pointed the direction society needed to take to insure the continuance of a healthy and productive natural environment. The task of politicians today is to discover more efficient means, including the development of new technologies, in order to achieve the objectives set forth in 1972.

see also Environmental Movement, Role of Water in the; Environmental Protection Agency, U.S.; Fish and Wildlife Service, U.S.; Legislation, Federal Water; Pollution of Lakes and Streams; Pollution Sources: Point and Nonpoint; Safe Drinking Water Act; Wastewater Treatment and Management.

Jeanne Nienaber Clarke

Bibliography

Adler, Robert W., J. C. Landman, and D. M. Cameron. The Clean Water Act: 20 Years Later. Washington, D.C.: Island Press, 1993.

Commoner, Barry. Making Peace with the Planet. New York: Pantheon, 1990.

Loeb, Penny. "Very Troubled Waters." U.S. News and World Report 125, no. 12 (September 28, 1998):39, 41–42.

Schneider, Paul. "Clear Progress, 25 Years of the Clean Water Act." Audubon (September/October 1997):36–47, 106–107.

Internet Resources

EPA Beach Watch Webpage. U.S. Environmental Protection Agency. <http://www.epa.gov/waterscience/beaches/>.

U.S. Code Chapter 26: Water Pollution Prevention and Control. Legal Information Institute, Cornell Law School. <http://www4.law.cornell.edu/uscode/33/ch26.html>.

30th Anniversary of the Clean Water Act. Year of Clean Water 2002. <http://www.yearofcleanwater.org/>.

WHAT IS A WATER PERMIT?

The 1972 Clean Water Act contained the philosophy that all discharges into the nation's waters are unlawful unless specifically authorized by a permit obtained from the Environmental Protection Agency (EPA). Under Section 402 of the act, the National Pollutant Discharge Elimination System (NPDES) was created, covering more than 65,000 industrial and municipal dischargers.

An NPDES permit requires industries to attain the best practicable control technology applicable to each pollutant discharged, and for municipalities at least secondary treatment of their discharges. Permits are issued for 5 years and must be renewed to allow for continued discharges. Permit holders must maintain records of their activities, and they must carry out effluent monitoring.

The NPDES permit, containing effluent limitations on what may be discharged by any single source, is the principal enforcement tool of the Clean Water Act. The EPA may issue compliance orders, or bring civil suits in U.S. District Court against persons who violate the terms of their permit. Penalties for noncompliance can range from $25,000 per day to as much as $250,000 a day, 15 years in prison for "knowing endangerment" of public health, or both. In addition, individuals may bring a citizen suit in district court against persons who are suspected of violating the NPDES permit process.

Clean Water Act

Rapanos v. United States

When Congress enacted the Clean Water Act (CWA), 86 Stat. 816, in 1972, it gave the U.S. Army Corps of Engineers the authority to regulate the discharge of any pollutants into "navigable waters." The Corps has given a broad reading to the term "navigable waters," which has led to lawsuits by land developers and property owners who believe their property is not linked to navigable waters. The Corps extended its control by regulating wetlands in the United States (approximately 300 million acres) which drain into tributaries of navigable waters. The Supreme Court has approved the regulation of wetlands that are adjacent to navigable waters but the regulation of more remote wetlands remained unresolved. In Rapanos v. United States/Carabell v. Army Corps of Engineers, ____U.S.____, 126 S.Ct., ___L.Ed.2d ___ 2006 WL 1667087 (2006), the Court failed to deliver a clear ruling on how courts and the Corps are to deal with wetlands. In the plurality decision, Justice Anthony Kennedy announced a "significant nexus" test that appeared to give the federal government continuing control over the management of wetlands.

John Rapanos, a Michigan real estate developer, owned three parcels of land about 20 miles from Lake Huron which he wanted to use for a shopping center. The state of Michigan classified the parcels as wetlands because after a heavy rain the water from these fields flowed into a drainage ditch, then into a small stream that emptied into Lake Huron. Under the CWA a permit is required before a landowner may drain or fill a wetland. When it became clear that Rapanos would not receive a permit, he had the land filled in with sand. He was convicted of criminal charges for his actions and a civil action was filed by the federal government seeking multimillion dollar fines. Rapanos claimed that his property was not a wetland but a federal district court concluded otherwise. On appeal, the Sixth Circuit Court of Appeals upheld the lower court ruling that the Corps had not exceeded its authority under the CWA.

The Supreme Court could not reach a majority conclusion. Four justices held that the Corps had exceeded its authority and that a new definition of wetlands was required. Four justices dissented, arguing that prior Court precedents and deference to the Corps justified the lower court rulings. Justice Anthony Kennedy, in a separate opinion, announced a new test for determining whether land could be classified as a wetland under the CWA. Because of this splintered decision, Kennedy's opinion appeared to give the most guidance to the lower courts and the Corps. However, Chief Justice Roberts, in a concurring opinion, lamented the fact that the Court had failed to reach a majority conclusion "on precisely how to read Congress' limits on the reach of the Clean Water Act." Because of this failure lower courts "and regulated entities will now have to feel their way on a case-by-case basis."

Four conservative justices (Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) voted to restrict the definition of wetlands. Justice Scalia, writing for the four justices, argued that the Corps of Engineers had exceeded its authority "beyond parody" by regulating land that contained nothing but drainage ditches, storm sewers and "dry arroyos in the middle of the desert." The federal encroachment on local lands had diminished the ability of the states to manage land and made the Corps look like "a local zoning board." Scalia proposed that the only wetlands subject to the CWA were those "with a continuous surface connection" to actual waterways, "so that there is no clear demarcation between 'waters' and wetlands." The linkage between a wetland and a waterway also had to be defined more restrictively. He contended that the waters adjacent to the wetlands must be "relatively permanent, standing, or flowing."

Justice Kennedy disagreed with this interpretation. He argued that the current regulations gave the Corps too much discretion to classify land as wetlands but there was no need to establish a restrictive bright-line rule advocated by Scalia and the other three justices. Instead, Kennedy proposed the adoption of a "significant nexus test" that would be applied on a case-by-case basis. Under this test the wetlands must have a significant nexus to a body of water that is actually navigable. This meant that even temporary channels could qualify as a tributary to navigable waters. He pointed out that the Los Angeles River in California is dry for much of the year, yet it can send "torrents thundering" down its steel and concrete protected waterway for short periods of time. Kennedy believed the Corps needed to rewrite its regulations to identify "categories of tributaries" that were "significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters." Though he voted to vacate the lower court ruling so the district court could conduct hearing based on his significant nexus test, Kennedy believed the federal government could make its case for the Rapanos wetlands. The wetlands drained into a stream that flowed into Lake Huron.

Justice John Paul Stevens, in a dissenting opinion joined by Justice David Souter, Ruth Bader Ginsburg, and Stephen Breyer, contended that the Kennedy test "will probably not do much to diminish the number of wetlands covered by the act in the long run." However, in the short term the test "will have the effect of creating additional work for all concerned parties." Stevens believed the Court should have paid more deference to the Corps's regulations, which attempt to manage a complicated system of water management. He also accused Justice Scalia and the conservatives of judicial activism in attempting to rewrite the CWA.

S.D. Warren Company v. Maine Board of Environmental Protection

The federal Clean Water Act, 86 Stat. 877, sets standards and review processes for industries that discharge material into navigable waters. Under § 401 of the act a federal license will be issued to a business if the state certifies that water protection laws will not be violated. A Maine company that operated a number of hydroelectric dams sought to renew its federal power licenses and questioned the need to submit to the water certification as part of the renewal process, arguing that it did not discharge into the river any pollutants when it returned the water used to generate electricity. The Supreme Court, in S.D. Warren Company v. Maine Board of Environmental Protection, ___U.S.___, 126 S.Ct. 1843, ___L.Ed.2d ___ (2006), rejected this argument and held that the government did not need to show that something was added to the water before it was returned to the river to trigger this Clean Water Act provision.

The S.D. Warren company operated a series of dams on a 25-mile span of the Presumpscot River in Southern Maine to generate electricity for its paper mills. Each dam created a pond, where water was funneled into a canal, sent through turbines, and then returned to the river. The company had operated the dams since 1935 and had a license to do so from the Federal Energy Regulatory Commission (FERC). In 1999, the company sought renewal of its licenses for five of its dams. It applied for water quality certification from the Maine Board of Environmental Protection, which was assigned the job of enforcing this Clean Water Act requirement. However, Warren filed its application under protest, contending its dams did not discharge into the river any materials, thus making it exempt from the Clean Water Act. The Maine agency certified the dams but required Warren to maintain a minimum stream flow and to allow passage of migratory fish and eels. FERC then issued new licenses to the dams. Despite winning renewal of the licenses, Warren pursued legal action against Maine's clean water certification process. The case eventually made its way to the Maine Supreme Judicial Court, which ruled that Warren's dams did discharge into navigable waters for Clean Water Act purposes.

The U.S. Supreme Court, in a unanimous decision, upheld this interpretation of the Clean Water Act. Justice David Souter, writing for the Court, noted that the dispute turned on the meaning of the word "discharge." The Clean Water Act did not define this term but it provided that the "term 'discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants." The act did define pollutants to mean "any addition of any pollutant to navigable waters from any point source." Justice Souter rejected the claim that "discharge" was limited to this definition, opting instead to construe the word in its ordinary or natural meaning. When applied to water, the word 'discharge' meant a "flowing or issuing out." The Court had adopted this definition in prior water cases, including a 1994 case involving the Clean Water Act that involved hydroelectric dams. Though the Court's opinion did not discuss whether the dam had added anything to the water, even the dissenting justices agreed that the discharge of water from the dam was within the sphere of the Clean Water Act. In addition, Justice Souter pointed out that the federal Environmental Protection Agency and FERC had read "discharge" to include releases from hydroelectric dams.

Warren presented three arguments as to why the ordinary meaning of "discharge" should not be used. He first argued that a proper reading of the act's provision demonstrated that "discharge" was linked to a requirement that an "addition" of pollutants to water be made for Clean Water Act coverage. The company contended that because the release of the water from the dams added nothing to the river, "the water flowing out of the turbines cannot be a discharge into the river." Justice Souter discounted this claim, finding that the company had improperly sought to "convert express inclusion into restrictive equation." Warren also argued that the Court's recent decision in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S.95, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004), required it to find no discharge under the act. Justice Souter concluded that this case was not on point because it involved a different section of the Clean Water Act, § 402. The two sections were "not interchangeable, as they serve different purposes and use different language to reach them." Section 402 had a more specific focus, requiring a permit for the "discharge of any pollutant" in the navigable waters of the United States. The triggering statutory term was not "discharge" alone but the "discharge of a pollutant." This term was narrower than the language of §401 because it defined this phrase to require an "addition" of a pollutant to the water. Section 401 did not require that something be added to the water before triggering the coverage of the act. Finally, Warren tried to use legislative history to show that Congress had inadvertently let the word "includes" in the definition of "discharge" after an unsuccessful attempt to deal with "thermal discharges" in § 402. Warren contended that Congress carelessly retained the word "includes" in § 401 when it really meant to limit the term "discharges" to the discharge of pollutants. Justice Souter rejected this claim as well, finding that Congress "probably distinguished the terms 'discharge' and 'discharge of pollutants' deliberately, in order to use them in separate places and to separate ends." The Court generally presumed that when Congress used particular language in one section but omitted it in another section of the same law, it acted "intentionally and purposely."

Justice Souter also found that the discharge of the dam water back into the river did alter water quality by limiting river flow and by modifying the chemical balance of water in ways that can affect aquatic organisms. These changes justified the use by the states of the Clean Water Act to protect against "the broad range of pollution."

Clean Water Act

Introduction

The Clean Water Act is a U.S. statute designed to protect and preserve the water supply of the United States by reducing pollution discharge. Congress passed the first Clean Water Act in 1948. Congress has amended the act several times since its initial passage, including a significant revision in 1972. The Clean Water Act of 1972 established broad national objectives for reducing water pollution by regulating pollution discharge from industrial and municipal sources. The Clean Water Act and its subsequent amendments seek to protect all water sources in the United States. This goal has come under attack in recent years, however, with U.S. President George W. Bush administration’s removal of nearly 60% of U.S. waterways from protection under the Clean Water Act.

Historical Background and Scientific Foundations

The Clean Water Act was not the first law to address water pollution in the United States. The Refuse Act of 1899, part of the Rivers and Harbors Act of 1899, prohibits the discharge of waste into all navigable lakes, rivers, streams, or other bodies of water in the United States. The Refuse Act protects both coastal and inland waters. More specifically, the Refuse Act prohibits any individual, group, corporation, or local government from discharging, throwing, or depositing any waste or refuse into any navigable waterway, body of water, or tributary to such waters. The Refuse Act does allow for the discharge of waste into water if the person or entity discharging the waste obtains a permit from the appropriate government agency. Violations of the Refuse Act are punishable by both fines and imprisonment.

Congress passed the initial version of the Federal Water Pollution Control Act (Clean Water Act) in 1948 to reduce pollution in waterways and produce a more sanitary water supply. The Clean Water Act of 1948 (1948 CWA) authorized the Surgeon General to work with other federal, state, and local governments to develop programs for reducing the pollution of interstate waters. The Surgeon General was required to develop these programs while accommodating the need for water for industrial uses, public water supplies, recreational uses, and agricultural uses. The 1948 CWA also authorized the Federal Works Administrator to assist state and local governments in the construction of water treatment facilities to prevent the discharge of sewage, a cause of fecal coliform contamination, and other contaminants into the water supply.

Congress passed minor amendments to the Clean Water Act in 1961, 1966, and 1970. The Federal Water Pollution Control Act Amendments of 1961 permitted states to request the U.S. Secretary of Health, Education, and Welfare take steps to reduce pollution in interstate or navigable waters. The Clean Water Restoration Act of 1966 authorized various federal agencies to study the effect of pollution on estuaries in the United States. The 1966 amendments also prohibited individuals from discharging oil into any navigable waters. The Water Quality Improvement Act of 1970 reorganized the enforcement of many marine environmental regulations among various federal agencies. The 1970 amendments also expanded regulations related to the discharge of oil into waters.

Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act of 1972) were a comprehensive revision and expansion of the Clean Water Act of 1948 and its amendments. The 1972 CWA stated broad national objectives and goals for regulating and maintaining the chemical, physical, and biological integrity of the water in the United States. The 1972 CWA was also the first water protection act to place the primary responsibility for regulating and enforcing water quality standards on the federal government instead of state and local governments.

The establishment of rigorous federal pollution control standards was the most revolutionary aspect of the 1972 CWA. The 1972 CWA charged the newly formed Environmental Protection Agency (EPA) with enforcing these stringent controls. The 1972 CWA set the ambitious goals of making all waters in the United States safe enough for fishing and swimming by 1983. The 1972 CWA also set an even more ambitious, and perhaps unrealistic, goal of seeing zero discharge of pollutants into any waters in the United States by 1985.

In order to achieve zero discharge, the 1972 CWA established a permit system that allowed the EPA to regulate point source pollution. Point source pollution is any pollution released by industrial facilities, government facilities, or agricultural facilities. Under the 1972, a point source could not discharge pollutants into waters without obtaining a permit from the National Pollutant Discharge Elimination System.

The 1972 CWA did not address some sources of water pollution. The 1972 CWA does not regulate these additional sources of pollution, known as nonpoint sources, under the CWA’s permitting system. Industrial stormwater runoff, agricultural stormwater runoff, municipal storm drains, and irrigation return flows are examples of nonpoint sources. Research in the 1970s and 1980s indicated that nonpoint sources were a major contributor to water pollution, especially in urban areas.

WORDS TO KNOW

POINT SOURCE POLLUTION: Pollution arising from a fixed source, such as a pipe.

Issues and Impacts

Congress has passed several amendments to the Clean Water Act of 1972 to address deficiencies in the act revealed by further scientific research and monitoring. The 1977 amendments, known as the Clean Water Act of 1977, authorized the U.S. Fish and Wildlife Service to assist states in developing best management practices in their large-scale water pollution control programs. The 1977 CWA also modified the permitting process for point source pollution to minimize delays.

The 1987 amendments, the Water Quality Act of 1987 (1987 WQA), addressed several nonpoint source pollution issues. The 1987 WQA required industrial and municipal stormwater nonpoint pollution sources to obtain permits from the National Pollutant Discharge Elimination System. The 1987 WQA did not require agricultural nonpoint sources to obtain permits, but the act did establish a grant program to fund research non-point management practices.

Recent cases heard by the U.S. Supreme Court question the reach of the Clean Water Act to protect all waters in the United States. In 2001, the case Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers held that the corps could not protect isolated, intrastate, non-navigable ponds and wetlands under the Migratory Bird Rule. The Bush administration attempted to expand this ruling to apply to non-navigable waters protected under the Clean Water Act. In 2003, the Bush administration demanded that all federal agencies cease protection of isolated, non-navigable ponds and wetlands without specific approval. This order effectively removed 60% of the waters of the United States from protection under the Clean Water Act. In 2006, the Supreme Court addressed wetland protection under the Clean Water Act in Rapanos v. United States. A split court, however, did not clearly define the ability of federal agencies to regulate non-navigable waters under the Clean Water Act.

In response to these Supreme Court cases and the Bush administration’s executive order regarding non-navigable waters, Congress is debating passage of the Clean Water Restoration Act (CWRA). The CWRA would clearly define the scope of the Clean Water Act regarding navigable waterways and wetlands. The CWRA would even prohibit pollution discharge in wetlands that are only wet on a seasonal basis. This aspect of the CWRA has drawn some criticism from corporations and sportsmen as being too restrictive in defining wetlands. If passed, however, the CWRA would reassert the Clean Water Act’s goal of protecting all waters in the United States.

See Also Nonpoint-Source Pollution; Wastewater Treatment Technologies; Water Conservation; Water Pollution; Water Resources; Water Supply and Demand

BIBLIOGRAPHY

Web Sites

Christian Science Monitor. “Bush Water Follies.” April 23, 2003. http://www.csmonitor.com/2003/0423/plls03-coop.html (accessed April 28, 2008).

Denver Post. “Congress Revisits the Clean Water Act.” April 15, 2008. http://www.denverpost.com/headlines/ci_8934105 (accessed April 28, 2008).

U.S. Environmental Protection Agency. “Agriculture: Clean Water Act.” March 27, 2008. http://www.epa.gov/oecaagct/lcwa.html#Summary (accessed April 28, 2008).

U.S. Environmental Protection Agency. “Water (from “The Challenge of the Environment: A Primer on EPA’s Statutory Authority”).” September 21, 2007. http://www.epa.gov/history/topics/fwpca/05.htm (accessed April 28, 2008).

U.S. Environmental Protection Agency. “Watershed Academy Web: Introduction to the Clean Water Act.” March 26, 2008. www.epa.gov/watertrain/cwa/ (accessed April 28, 2008).

U.S. Fish and Wildlife Service. “Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service: Federal Water Pollution Control Act (Clean Water Act).” http://www.fws.gov/laws/lawsdigest/FWATRPO.HTML (accessed April 28, 2008).

Joseph P. Hyder

CLEAN WATER ACT

During the 1960s, the Cuyahoga River in Ohio caught fire, Lake Erie was so polluted it was said to be dying, and human sewage and pollution commonly killed fish in the nation's rivers and streams. Public concern grew so overwhelming that the United States Congress enacted the Federal Water Pollution Control Act of 1972 over the veto of President Richard Nixon. The law, commonly known as the Clean Water Act, set two national goals: elimination of the discharge of pollutants into the nation's waters, and achievement of water quality to protect fishing and swimming. Pollutants from industrial and sewage treatment plants and runoff from city streets and farmlands can contain organic pollutants, including sewage and toxic substances such as heavy metals and chemicals. If poorly controlled, these pollutants can cause diarrhea, cancer, and other serious diseases.

Clean water is essential to the health of all Americans for drinking water, swimming, and other water recreation; as well as for the health of fish and all aquatic life. Between 1972 and 1998, the United States has doubled the amount of water clean enough for fishing and swimming. In addition, wetland losses have dropped dramatically and the number of people served by modern sewage treatment plants more than doubled, to 173 million, in 1998.

The U.S. Environmental Protection Agency (EPA), along with other federal, state, tribal, and local agencies administer programs that regulate the discharge of pollutants and the dredging and filling of waterways and wetlands. Wastewater discharge pipes from industrial or sewage treatment plants are point sources, and they require a permit based on available treatment technologies and water quality standards. As a result of amendments made to the Clean Water Act in 1977, limits have been established for over one hundred pollutants discharged by fifty-one different kinds of industry.

In 1998, pollution runoff became the leading cause of water pollution in the United States. These diffuse, nonpoint sources of water pollution may contain soil, pesticides, fertilizers, oil, grease, and animal wastes from farmlands, streets, parking lots, and construction sites. Since amendments to the Clean Water Act in 1987, the EPA has expanded the number of these sources that require a permit.

In 1998, approximately 450,000 animal feeding operations existed throughout the United States, ranging from small livestock facilities to large, concentrated animal feeding operations for cattle, hogs, and chickens. Pollution from these sources can cause significant environmental and public health problems, including algae growth in surface water, contamination of drinking water supplies, fish kills, and odor problems. Ponds and lagoons that store manure and other liquid waste can overflow during heavy rainfalls or lagoon walls can break, sending bacteria, hormones, and antibiotics into waterways. The EPA is developing permit programs for the approximately 6,600 concentrated animal feeding operations.

The Watershed Approach Framework developed by the EPA in 1996 seeks to go beyond political, social, and economic boundaries by designing and applying programs to control the many sources of pollution in an area draining into a river or other body of water. One watershed approach involves calculating the maximum amount of pollutants that a body of water can receive from all contributing point and nonpoint sources. Agencies can use this "total maximum daily load" to allocate pollution limits among various sources. The nation's clean water laws have evolved from regulating direct discharges of organic and toxic pollutants to a system controlling diffuse, nonpoint sources of pollution. The watershed approach goes one step further by looking at all the sources of water pollution in a geographic area.

Sharon Newsome

(see also: Acid Rain; Drinking Water; Groundwater; Groundwater Contamination; Land Use; Municipal Solid Waste; PCBs; Pesticides; Wastewater Treatment; Water Quality )

Bibliography

Copeland, C. (2000). Water Quality: Implementing the Clean Water Act. Washington, DC: Congressional Research Service. The National Council for Science and the Environment.

U.S. Environmental Protection Agency (1998). Wastewater Primer. Washington, DC: Office of Water, Environmental Protection Agency.

—— (2000). Water Quality Conditions in the United States: A Profile from the 1998 National Water Quality Inventory Report to Congress. Washington, DC: Office of Water, Environmental Protection Agency.

—— (2000). Atlas of America's Polluted Waters. Washington, DC: Office of Water, Environmental Protection Agency. (EPA documents available at http://www.epa.gov/epahome/waterpgram.htm.)