Discussion of Clean Water Act

Below you will find a summary analysis of a paper in the Arizona State Law Journal on the Clean Water Act. This is a must read for those concerned with water quality fish and wildlife issues.

Discussion and Outline from Text

compiled by

Alan Levine for Coast Action Group

from

ARIZONA STATE LAW JOURNAL

Emerging issues in Water Quality Standards in the West: Quality Affecting Use and Use Affecting Quality

by David Baron

Volume 27 * Number 2 * Summer 1995

I. Introduction

Clean Water Act (CWA) - to restore and maintain the chemical, physical, and biological integrity of the Nation's waters by 2 key initiatives: 1) development of national, technology-based effluent standards and treatment requirements for major categories of polluting activities; 2) adoption of water quality standards for rivers and lakes to protect actual and potential uses such as fishing and swimming. The EPA initially focused on technology - based standards and technology based effluent limitations - mostly industrial categories (40 C.F.R. §§ 405-71). Effluent limits were implemented / controlled by NPDES permits { 33 U.S.C. § 1342 (a) (1)} required for all point source dischargers.

The nation's waters still remain badly polluted. Over 38% of river miles and 44% of lake acres are too contaminated to support designated uses - fishing and swimming (actually newer studies show the situation to be worse than indicated). Studies show that nonpoint sources - such as runoff from range lands and farm fields - are responsible for much of the pollution. Technology based effluent limits do not ordinarily address such sources.

In 1987 Congress strengthened the Act. With EPA guidance there is new focus on protecting and enhancing the uses of rivers and lakes. Standards can be adopted for a wide range of pollutants in all types of waters, and apply regardless of the source of contaminants. Because standards under the CWA are fairly absolute, they can also force development of innovative pollution control techniques.

II. Process

The Clean Water Act sets up a joint federal and state program for fighting pollution. The Act requires each state to adopt water quality standards and submit them to the EPA for approval. If the EPA disapproves the standards, in whole or in part, the EPA must promulgate federal standards to supplant the disapproved portions (33 U.S.C. § 1313 (c) (3)).

NPDES permits must contain effluent limitations sufficiently stringent to ensure that the state water quality standards will not be violated by the discharge (33 U.S.C. §§ (b) (1) (c), 1324 (a) (1); 40 C.F.R. §§ 122.4 (d), 122.44 (d) (1) (i)) [ this has a nexus with TMDL promulgation / implementation]. The EPA can delegate NPDES permitting authority to states with adequate permit programs of their own (U.S.C. § 1342 (b)).

Many of the most applicable requirements of the Act are set forth in Volume 40 of the Code of Federal Regulations, part 131 (often referred to as EPA's "Water Quality Standards Regulations").

In addition to ensuring that the standards comply with the Clean Water Act, The EPA must also ensure that they are consistent with the Endangered Species Act (16 U.S.C. § 1536 (a) (2)) (see also Joint Memorandum, Coordination Between the Environmental Protection Agency, Fish and Wildlife Service and the National Marine Fisheries Service Regarding Development of the Water Quality Criteria and Water Quality Standards Under the Clean Water Act, July 27, 1992 - reprinted in EPA, Water Quality Standards Handbook = Handbook)

If EPA disapproves the state standards, it must inform the state of the nature of the deficiencies and allow ninety days for their correction ( 33 U.S.C. § 1313 (c) (3) - see Handbook). If the state does not make timely corrections, EPA must "promptly" propose substitute federal standards, and finalize those standards within 90 days of proposal, unless the state makes the necessary corrections interim (33 U.S.C. § (c) (4) (B) (see also - Handbook)

III. Waters Covered

Definition of waters covered extends to intrastate lakes, rivers, streams (INCLUDING INTERMITTENT STREAMS), mud flats, sandblast, wetlands, or natural ponds - the use or degradation of which could effect interstate or foreign commerce (40 C.F.R. 232.2). Tributaries and impoundments of such waters are also included, as are adjacent wetlands. EPA's regulatory definition is so expansive that is rare to find a river or lake that is not covered. The EPA definition expressly cites recreational use by interstate travelers as an example of an actual or potential connection to interstate commerce (see, e.g., United States v. Byrd, 609 F. 2d 1204, 1209-10 (7th Cir. 1979); National Wildlife Federation v. Laubscher, 662 F. Supp. 548, 549 (S.D. Tex. 1987). But see Hoffman Homes, Inc. v. EPA, 961 F. 2d 1310, 1316-23 (7th Cir. 1992)). The definition also sweeps in tributaries of such waters, including normally dry watercourses, arroyos, and washes ( Quivira Mining Co. v. EPA, 765 F. 2d 126, 129-30 (10th Cir. 1985).

The definition also encompasses wetlands adjacent to the kinds of waters mentioned above (40 C.F.R. § 232.2). Wetlands are areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support and that under normal circumstance do support a presence of vegetation typically adapted for life in saturated soil conditions (40 C.F.R. § 232.2 (r). An adjacent wetland can be a water of the United States even if there is no surface connection to the nearby river or lake.

ARTIFICIAL CANALS are also treated as water of the United States if they have some connection to navigable waters ( see, e.g. Weiszmann v. District Eng'r, 526 F. 2d 1302, 1305 (5th Cir. 1976).

WHAT ABOUT GROUND WATER? the courts that have addressed the issue seem to agree that groundwater is not within the reach of the CWA if it is totally isolated from surface water (citation not included). The courts are split, however, on whether the groundwater can be covered if it has a hydrological connection to surface water (citations not included). Most of these cases address the question of whether a discharge to tributary groundwater should be treated as a discharge to a water of the United States, thus requiring a NPDES permit under the CWA. At least one court has ruled that water quality standards are required for "any subsurface waters having a clear hydrological nexus" with surface waters ( Kentucky ex rel. Hancock v. Train, 9 Env't Rep. Cas. (BNA) 1280, 1282 (E.D. Ky, 1976) - see 33 USC § 1314 (a) (1), 33 USC § 1313 (c) (2) (B); 40 C.F.R. § 131.11 (b); infra notes 102-17 and accompanying text)

IV Form of the Standards

A state water quality standard "shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses (33 USC § 1313 (c) (2) (A) ). The Standards shall "protect the public health or welfare, enhance the quality of water and serve the purposes of the CWA." Standards must promote achievement of the CWA goals, which include the attainment of "fishable and swimable" waters throughout the nation (Id. § 1251 (a) (2); Handbook)

A. Designated Uses

Criteria (numeric pollution limits) must be developed to protect designated uses - swimming, cold water fish habitat, drinking water. States can define designated uses - but, existing uses must be maintained and protected (33 U.S.C. § 1251 (a). A second requirement of "designated use" comes from the CWA national goal of achieving, wherever attainable, water quality "which provides for the protection and the propagation of FISH, SHELLFISH, and WILDLIFE (aquatic life habitat) and provides for recreation in and on the water" (33 U.S.C. § 1251 (a) (2)) = fishable / swimable.

A state can overcome the fishable/swimable presumption for a given watercourse be performing a "use attainability" analysis showing that the use is not attainable. This process is difficult and rarely used. EPA rules indicate that states must provide a use attainability analysis meeting the requirements of 40 C.F.R. § 131 (g) (1) through (6).

A use is deemed attainable if it can be achieved by imposition of all applicable national effluent limits on point sources and adoption of a reasonable control program for nonpoint sources (40 C.F.R. § 131.10 (d), (h) (2)).

B. Water Quality Criteria

1. General Requirements

The Act requires state to adopt water quality criteria to protect designated uses. Water quality criteria can consist of numeric pollution limits, or narrative standards. Criteria must be sufficient both in terms of coverage (for example, range of pollutants limited) and stringency to protect the designated uses.

2. Numeric Criteria

The choice of numeric criteria by the state is heavily influenced by the national criteria documents prepared by the EPA under section 304 of the CWA

C. Narrative Criteria

According to the rules, states should set narrative or biomonitoring criteria "where numerical criteria cannot be established or to supplement numerical criteria" (40 C.F.R. § 131.11 (b) ) The EPA has taken the position that narrative criteria are necessary to comply with section 303 (c) (2) (A) of the CWA, which requires standards to protect public health or welfare, enhance the quality of water, and serve the purposes of the CWA (Handbook).

Narrative standards typically consist of broad result - oriented requirements applicable to all waters, such as the following: All waters, including those within mixing zones, shall be free from substances attributable to wastewater discharge or other pollutant sources that:

1) Settle to form objectionable deposits

2) Float as debris, scum, oil or other matter forming nuisances

3) Produce objectionable color, order, taste, or turbidity

4) Cause injury to, or are toxic to, or produce adverse physiological response in humans, animal, or plants

5) Produce undesirable or usance to aquatic life

EPA rules require that where a state adopts narrative toxicity criteria to protect designated uses, the state must also identify procedures for implementing those criteria (Handbook). The state must explain how it will develop specific limits on point source discharges to ensure that the narrative standard is met (Handbook) ,

For the meaningful implementation of narrative standards as well as the mandate in section 303 (c) (2) (B), EPA needs to develop specific guidelines for acceptable levels of species survival - level that ensure both the short and long term maintenance of health aquatic ecosystems.

D. Antidegradation

In addition to designated uses and water quality criteria, state standards must include antidegradation requirements (40 C.F.R. § 131.12) - strong policies to prevent degradation of existing water quality. This policy must contain 3 elements or tiers (Handbook): Tier one - requires that existing uses and water quality necessary to protect uses must be maintained and protected ( 40 C.F.R. § 131.12 (a) (1)), Tier two - prohibits degradation of tier-two waters to below fishable/swimable quality, and preclude lowering event to those levels without showing that: a) such degradation is necessary to accommodate important economic and social development; and b) the most stringent requirements for point sources and best management practices for nonpoint source pollutant controls will be achieved (id.).

Antidegradation rules are significant because they require protection beyond
water quality criteria.

E. Total Maximum Daily Loads

The CWA requires state to identify those waters for which technology-based limitations are not sufficient to produce compliance with water quality standards ( 33 U.S.C. § 131 (d) (1) (A)). For such "water quality limited waters", states must develop "total maximum daily loads" (TMDLs) for each pollutant for which standards are being violated (33 U.S.C. § 131 (d) (1) (C)). The TMDL sets the maximum amount of the pollutant that the water body can receive daily without violating the water quality standards, with a margin of safety (Id.). EPA rules further require the state to assign portions of the load to point and nonpoint sources along the waterbody, limiting the allowed contribution from each category so as to ensure the standards will be attained and maintained ( 40 C.F.R. § 130.7, Handbook).

States are required to submit lists of water quality limited segments, along with TMDLs. to EPA every two years ( 40 C.F.R. § 130.7 (d) (1)). EPA must review the lists and TMDLs within thirty days and approve of disapprove them. If the EPA disapproves the state's list or TMDLs, the Agency must promulgate its own list and TMDLs within thirty days (33 U.S.C. § 1313 (d) (2) ).

V. Application and Enforcement of the Water Quality Standards

The CWA requires NPDES permits for all point source discharges, and those permits must contain effluent limits stringent enough to protect all water quality standards in the receiving river or lake (33 U.S.C. § 1311 (b) (1) (C), Handbook). Effluent limits must not only protect numeric and narrative water quality criteria, but also must ensure compliance with antidegradation requirements and any applicable TMDLs (citations omitted). the Supreme Court recently ruled that the CWA mandate to protect designated uses has legal significance independent of the criteria that are require to protect those uses ( PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 114 S. St. 1900, 1910-11, 1994).

Water quality standards also impact the issuance of permits under section 404 of the CWA for the discharge of dredge and fill material into waters of the United States (33 U.S.C. § 1344). Such permits cannot be issued if the discharge will cause or contribute to violation of any applicable state water quality standard or "significant degradation of the waters of the United States" ( 40 C.F.R. § 230.10 (b) - (c)).

The statues and rules governing water quality standards are also among the very few provisions in federal law that address nonpoint source pollution. As noted above, EPA rules prohibit state from removing a designated use if that use can be attained by implementing technology based effluent standards through NPDES permits and "cost effective and reasonable best management practices for nonpoint source control"(40 C.F.R. § 131.10 (h)(2)). The antidegradation rules prohibit degradation in high quality waters unless the state assures implementation of best management practices for nonpoint source control (40 C.F.R. § 131.12 (a)(2)). In some cases, courts have indicated that federal agencies must limit nonpoint source pollution where necessary to prevent violation of the state water quality standards (see, e.g., Marble Mountain Audubon Soc'y v. Rice, 914 F. 2d 179, 182 (9th Cir. 1990)).

VI. Water Quality and Water Quantity

The CWA and EPA's implementing rules contain a number of provisions relevant to the interface between water quality and water quantity. The stated purpose of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the nation's waters," indicating a broader goal than just pollution prevention (33 U.S.C. § 1251 (a), 1988). The CWA also contains a heavy emphasis on protecting uses such as fish habitat and recreation - uses that obviously require maintenance of adequate flows. There is a strong presumption in favor of protecting fishable/swimable uses, even in low flow waters (citations omitted). If the state wishes to rebut this presumption, it must show not only that natural flows are too low to support the use, but also that this deficiency cannot be corrected by addition of sufficient volumes of effluent into the stream (40 C.F.R. § 131.10 (g)(2), 1004).

There are also provisions in the act suggesting congressional respect for state water rights laws.

The Supreme Court recently clarified the interplay of these provisions in PUD No. 1 of Jefferson County v. Washington Department of Ecology (114 S. Ct. 1900 (1994)). The Court found that state water quality standards are incorporated by reverence in 33 U.S.C. § 1311, citing the language of 33 U.S.C. § 1311 (b) (1) (C) and supportive legislative history. The Court upheld the specific instream flow condition on several grounds - including designated uses "migration, rearing, spawning, and harvesting of salmonid and other fishes". The Court found that the state's minimum flow requirement was appropriate to protect these uses. Section 303 of the CWA, said the Court, required state standards to contain both designated uses and water quality criteria, indicating that each component has independent significance. The Court reasoned that although water quality criteria offer a convenient enforcement mechanism, and in most cases will be sufficient to protect uses, they cannot be expected to address all potential threats to uses. The Court rejected arguments that a generic requirement to protect "uses" was too open-ended, noting that the CWA allowed states to adopt narrative criteria that were similarly broad.

The state's antidegradation policy provided a separate ground for upholding the stream flow condition. In accordance with EPA's antidegradation regulation, Washington had adopted an antidegradation rule providing that "existing beneficial uses shall be maintained and protected and no further degradation which would interfere with or become injurious to existing beneficial uses will be allowed." The stream flow condition, said the Court, was a proper application of this policy because it was designed to protect existing use. The Court noted " EPA has explained that under its antidegradation regulation, 'no activity is allowable......which could partially or completely eliminate any existing use.'"

Next, the Court rejected PUD's argument that the CWA was concerned only with water quality, not quantity, stating:

"This is an artificial distinction. In many cases, water quantity is closely related to water quality; a sufficient lowering of the water quantity in a body of water could destroy all of its designated uses, be it for drinking water, recreation, navigation or, as here, as a fishery."

The Court noted that the CWA defines "pollution" in terms of the "physical" and "biological" as well as the chemical alteration of water, and recognizes that the pollution may result from changes in water flows. A strong argument can be made that EPA water quality standards rules require limits on such diversion to effectuate antidegradation and use protection policies - even in the case of preexisting stream diversions. Because the Court viewed stream flow depletion as a form of pollution (for example, because it degrades the physical and biological integrity of the waterbody), then minimum stream flow requirements are the type of "pollution controls" that should (and probably must) be imposed on top of existing water rights (see PUD, 11 S. Ct,. at 1913). The CWA goals of maintaining and restoring the Nation's waters are not somehow suspended merely because a diverter or waste discharger has previously been allowed to act contrary to those goals ( EPA takes the position that water quality standards must in some cases limit existing rights in order to effectuate the CWA. For example, EPA has proposed water quality standards for the San Francisco Bay delta that can only be implemented by limiting upstream diversions that were authorized by water rights permits issued decades ago.)

Alan Levine
Coast Action Group
P.O. Box 215
Point Arena, CA 95468