The Clean Water Act, 33 U.S.C. § 1251 et seq., the Federal Water Pollution Control Act, is the primary federal law in the United States governing water pollution. Congress first passed the statute as the Federal Water Pollution Control Act Amendments of 1972. It became known as the Clean Water Act after Congress passed significant set of amendments to it in 1977. The law was further amended in 1987.
The Clean Water Act, commonly abbreviated as the "CWA", established the symbolic goals of eliminating releases to water of toxic amounts of toxic substances, eliminating additional water pollution by 1985, and ensuring that surface waters would meet standards necessary for human sports and recreation by 1983.
To achieve this goal, the CWA requires individuals and corporations to obtain permits before releasing any pollutants into "navigable waters" (including, by a regulatory definition, wetlands), and required EPA to create effluent discharge limits for point sources (releases of controllable streams of wastewater, such as from factory pipes), based on Best Available Technology standards or local water quality standards, whichever is more stringent. The technology-based standards, known as effluent guidelines, were set as an enforceable national minimum and preempted less stringent state legislation. In addition to these standards, the law also created a system to move towards achieving health and water quality-based standards that would create waters that would be safe enough for activities such as fishing and swimming. The Act also prohibits potentially harmful spills of oil and certain hazardous substances.
After Congress passed the CWA, EPA promulgated effluent guidelines that regulate water pollution from 56 industry categories. These regulations apply to between 35,000 and 45,000 facilities that discharge directly to the nation's waters, as well as another 12,000 facilities that discharge into publicly owned treatment works. These regulations are responsible for preventing the discharge of almost 700 billion pounds of pollutants each year.
While the technology-based standards have been largely successful, because they apply to specific sources and are enforceable, the health and water quality-based standards have been much less so. In 2002 there were still tens of thousands of rivers, lakes, and bays that were not safe enough for fishing and swimming. The most important remaining cause of these problems (typically, diffuse runoff from farms, streets, and yards) is known as non-point source pollution, which was not addressed in the original Clean Water Act.
To assist municipalities in creating wastewater treatment plants that were capable of meeting these standards, the CWA established a system to provide federal financial assistance, first in the form of construction grants, which were modified several times and later replaced by the State Water Pollution Control Revolving Fund in 1987. The Clean Water Act and its regulations also establish pretreatment requirements for industrial users contributing wastes to Publicly Owned Treatment Works.
Other important aspects of the CWA include a variety of enforcement mechanisms, including administrative compliance and penalty orders, civil and criminal judicial remedies, contractor listing, and a citizen suit provision. EPA's enforcement settlement policies, which are relatively sophisticated within the federal government, have promoted environmental auditing and the use of Supplemental Environmental Projects.
Since the Clean Water Act was passed, water pollution has drastically decreased. By the beginning of the 21st Century, waterfront development was a major goal in localities throughout America. 90% of new development in New York State was waterfront development. A member of the North Delaware Riverfront Task Force, State Rep. Mark B. Cohen of Philadelphia, said that "The reduction of water pollution gave new life to many old urban and industrialized areas. Formerly useless land suddenly became highly desirable, and the vision of an East Coast Greenway, spanning from Maine to Florida, became a reasonable goal to work towards."
One very important program under the Clean Water Act is EPA's Total Maximum Daily Load Program. A Total Maximum Daily Load, or TMDL, is a calculation of the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, and an allocation of that amount to the pollutant's sources. Over 60,000 TMDLs are proposed to be developed for our nation's waters in the next decade and a half.
A TMDL is the sum of the allowable loads of a single pollutant from all contributing point and nonpoint sources. The calculation must include a margin of safety to ensure that the waterbody can be used for the purposes the State has designated. The calculation must also account for seasonal variation in water quality.
Water quality standards are set by States, Territories, and tribes. They identify the uses for each waterbody, for example, drinking water supply, contact recreation (swimming), and aquatic life support (fishing), and the scientific criteria to support that use.
Section 303 of the Clean Water Act establishes the water quality standards and the TMDL programs.
Basis of federal jurisdictionEdit
There is a question considered by the U. S. Supreme Court regarding the extent of federal jurisdiction over the "waters of the United States" under the Commerce Clause. The Clean Water Act gives federal regulators the power to control the discharge of pollutants into "navigable waters." In June, 2006 a decision in the cases Rapanos v. United States and Carabell v. United States Army Corps of Engineers was made by the Supreme Court. Both cases concerned the filling of wetlands by the plaintiffs. According to Justice Scalia, who wrote the dissenting opinion and was joined by 3 other conservative justices, the only wetlands properly subject to federal jurisdiction are those "with a continuous surface connection" to actual waterways, "so that there is no clear demarcation between 'waters' and wetlands." The waters to which the wetlands must be adjacent, he continued, are only those that are "relatively permanent, standing or flowing." These are the only bodies of water that come within the statute's reference to "the waters of the United States,". This opinion is a much more restrictive interpretation than that taken by the United States Army Corps of Engineers under its current regulations; it would exclude many wetlands and all seasonal streams from federal regulation. The deciding opinion, that of Justice Kennedy, takes the view that jurisdiction exists if there is a "significant nexus" between a wetland and navigable waters, it being sufficient that the wetland be adjacent to a tributary of navigable waters. The other 4 justices, Justice John Paul Stevens, joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer took an environmentalism position supporting the Corps. (Based on a New York Times article, June 20, 2006, "Justices Divided on Protections Over Wetlands" by Linda Greenhouse and a Washington Post article, June 20, 2006, "Justices Rein In Clean Water Act" by Charles Lane). The Clean Water Authority Restoration Act has been proposed to resolve the questions raised by this decision. It would attempt to establish federal jurisdiction over all waters. Opinion is divided with some interests preferring a restricted interpretation.
Effect on regulationEdit
Restriction of jurisdiction and ambiguity over its reach has reduced enforcement of the Clean Water Act. Legislation which would restore the former reach of the act is stalled in Congress.
Court cases interpreting the Clean Water ActEdit
- S. D. Warren Co. v. Maine Bd. of Env. Protection, 547 U.S. ___ (2006), involving section 401 state certification requirements for federally licensed activities that cause a discharge into navigable waters
- Introduction to the Clean Water Act
- Full text of the act
- United States Fish and Wildlife Service digest of the Clean Water Act
- EPA site on TMDLs
- Deterioration of the Nation’s Clean Water Act Enforcement Program House Committee on Oversight and Government Reform December 16, 2008