An Overview of the Clean Water Act, Stormwater Discharges, and Case Law

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July 18, 2018


I: Background

  • The United States first addressed the topic of water pollution in 1948 in the Federal Water Pollution Control Act (FWPCA).
  • In 1972 and 1977, significant amendments to the FWPCA were made and the law became known as the Clean Water Act.

SEC. 101. (a) The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this Act—

(1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;
(2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983;
(3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited;
(4) it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works;
(5) it is the national policy that area wide treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State;
(6) it is the national policy that a major research and demonstration effort be made to develop technology necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone and the oceans; and
(7) it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution.

  • The 1977 amendments created a framework for regulation of the discharge of pollutants to the nation’s rivers and streams and the Environmental Protection Agency (EPA) was given the authority to implement water pollution control programs, which includes setting standards for contaminants that are discharged to surface waters.
  • The CWA created a construction grants program to fund construction of new sewage treatments work. This fund was used to upgrade and build new treatment plants in Wyoming. In 1987, the construction grants program morphed into a Clean Water State Revolving Fund which continues to be available today. The revolving fund is a loan program.
  • The CWA was amended in 1981, 1987, and 1990.
  • The Safe Drinking Water Act, 42 U.S.C. §300f et seq. (1974), regulates water that is used or can be used for drinking water. This statute regulates public water systems, sets contaminant levels for drinking water, and contains criteria and procedures to protect drinking water. Discharges that threaten a drinking water supply, such as an aquifer, will have Safe Drinking Water Act ramifications and may also have CWA ramifications. The State of Wyoming does not have primacy, or the authority to regulate, drinking water. The Federal Environmental Protection Agency regulates drinking water in Wyoming and it is the agency to enforce the drinking water standards.
  • Water laws and water regulation have evolved over decades and these laws are often a response to a particular issue or problem. Water contamination problems may present issues that are addressed by different federal and/or state laws, and the cleanup and enforcement process can be a multijurisdictional, multi‐agency process.

For example, when the coal bed methane industry developed in Wyoming, the state saw a dramatic increase in discharge permit applications and the issues raised by coal bed methane development resulted in a review, reorganization, and revision of the discharge permit requirements and processes.

II: Administration Of The CWA

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  • EPA is the federal agency with the responsibility of administering water pollution programs under the CWA and overseeing programs that are administered by the States or Tribal governments.
  • The regulations for EPA are in Title 40 of the Code of Federal Regulations. Subchapter D of Title 40 contains the regulations pertaining to water programs. Subchapter N contains effluent guidelines and standards.
  • A state or Tribe may administer CWA program(s) so long as the state program is at least as stringent as the federal program. A state must have the appropriate statutory and regulatory provisions in place before entering into an agreement to implement a program. When a state administers a federal program it is said to have “primacy” in the program.
  • Permits for the discharge of dredge and fill materials into waters of the U.S., including wetlands, are issued by the U.S. Army Corps of Engineers pursuant to §404 0f the CWA, The standards for the dredge and fill permits are promulgated by the EPA.
  • In 1973, the Oil Pollution Prevention (OPA) regulations were adopted pursuant to §311 of the CWA. These regulations set forth requirements for prevention of, preparedness for, and responses to oil discharges to prevent oil from reaching navigable water and adjoining shorelines. Oil discharged must be contained. Oil companies prepare Spill Prevention, Control and Countermeasure Plans (SPCC) that set forth the procedures, methods, and equipment requirements to prevent and respond to discharges. The SPCC plans are approved by the state or EPA. In 1990, the Oil Pollution Act, 33 U.S.C. 40, amended the CWA to require some oil storage facilities to prepare Facility Response Plans. In 1994, facility owners or operators were required to submit plans for response to worst‐case scenario oil spills.
  • Regulations enacted to implement the CWA are adopted pursuant to the federal Administrative Procedure Act. Before a regulation becomes law there are opportunities for public comment and public hearings.

III: State of Wyoming

  • The Department of Environmental Quality (WDEQ) administers the CWA, including the National Pollutant Discharge Elimination System (NPDES) program, in Wyoming. Regulations implementing the CWA programs are drafted by WDEQ and the public is involved in the development of the regulations. NPDES permits allow discharge of pollutants into waters of the state. See DEQ Water Quality Regulations, Chapter 2 for the permit requirements and enforcement.
  • The Wyoming Environmental Quality Council (EQC) promulgates regulations for WDEQ. Regulations are available for public review and comment prior to promulgation.
  • Both the WDEQ and the WEQC were created in the Environmental Quality Act in 1976. See 35‐11‐101 et seq,
  • The Wyoming Administrative Procedures Act (APA) governs the rulemaking process in conjunction with the requirements federal programs may impose and the processes established by the Wyoming EQA.
  • Because Wyoming does not have primacy in the Safe Drinking Water Act programs, EPA administers and enforces the SDW statute and regulations in this State. Thus, if water contamination is a problem and drinking water may be affected, both the WDEA and the EPA undertake enforcement. The EPA Region 8 office in Denver will be the entity that is in charge of drinking water issues including cleanup and penalties. The State will address any CWA issues. The entity responsible for the contamination will face both federal and state enforcement, although the agencies may coordinate their enforcement and cleanup efforts.

An example of joint jurisdiction was where problems with failed septic systems caused contamination of drinking water wells in a trailer court. DEQ addressed the septic systems issues, cleanup, new construction, and fines and penalties. Issues regarding the drinking water wells, cleanup, construction of new facilities, and fines and penalties were addressed by EPA. The city participated in regard to planning, zoning, and water supply issues.

IV: NPDES

  • Two types of discharges:

Point Source Discharges: a discharge that is from a discreet conveyance such as a pipe or man made ditch. This term includes discharges from municipal sewage plants, industrial facilities, storm drainage from large urban areas, animal feedlots, fish farms, some types of ships, tank trucks, offshore oil platforms, and collected runoff from many construction sites.

Non‐Point Source Discharges: discharges from diffuse source. Nonpoint source pollution is generated when rain or snowmelt has not percolated into the ground but has moved over land or impervious surfaces and has picked up debris, chemicals, and other pollutants as it moves to a point where it drains into a lake, river, wetland, coastal water, or an underground source of drinking water. Left untreated, this water can contaminate the receiving waters. Most stormwater discharges are nonpoint source discharges and require coverage under an NPDEA permit. The primary method to control stormwater discharges is the use of best management practices (BMPs).

  • Wetlands are lands saturated by water and the saturation determines the soil development and the plant and animal communities in the soil and on the surface of the soil. Wetlands, as regulated under the CWA, must support "a prevalence of vegetation" that has adapted to live in saturated soil conditions. Wetlands are typically referred to as swamps, marshes, fens, and bogs.
  • Wyoming and EPA stormwater discharge permit programs regulate stormwater discharges from municipal separate stormwater sewer systems (MS4s), construction activities, and industrial activities. Most stormwater discharges are point source discharges, and NPDES permits are required. The stormwater program is designed to prevent runoff that can wash pollutants into surface waters such as streams, rivers, lakes, or coastal waters. EPA provides webcasts and guidance documents through its websites. DEQ also provides information.
  • Wyoming and EPA have stormwater permits that are general permits. A general permit is designed by WDEQ and adopted as a regulation.  Construction companies and certain industries can apply for coverage under the general permit. WDEQ determines whether the applicant’s operation can be adequately regulated under the terms of the general permit. If an operation requires additional permit conditions, the operator applies for an individual stormwater discharge permit.. A copy of the general permit is at  http://www.deq.state.wy.us/wqd/WYPDES_Storm_Water/stormwater.asp.

V. Regulatory Picture

  • You can follow the development of federal stormwater regulations on the epa.gov website. At the time this outline was prepared, no new regulations are proposed; however, EPA has started the process of gathering information for the development of regulations. Four questionnaires were distributed to start the discussion of new regulations. The rulemaking process is a long one, and it is wise to keep informed on the subject.
  • Wyoming regulations are found at the Wyoming DEQ website. In addition to this website, those interested in water regulation should also visit the website of the Wyoming State Engineer. The State Engineer regulates the allocation of water for irrigation, storage, municipal, and industrial uses. DEQ and State Engineer may both have a role in regulation of a particular water discharge. An example of the State Engineer’s role in discharge permits is where water, pursuant to a discharge permit, is reintroduced into a stream where it can be used or allocated again.

VI. Enforcement

  • EPA, a state, or Tribe responsible for implementation of the CWA, all have enforcement authority. The CWA gives the administrative agency, in this case the State of Wyoming, the power to order any person or company to pay a penalty and correct noncompliance with the law. A person is defined as an individual, corporation, partnership, association, state, municipality, commission, or political subdivision of a state, or any interstate body.
  • Under §309 of the CWA, penalties for violating the terms of a permit or for not having a permit when one is required may be up to $27,500 per violation per day.
  • EPA publishes the Enforcement Alert, a newsletter covering important trends, issues and enforcement actions.
  • In addition to civil penalties, a person may be required to take expensive corrective action such as building a new treatment facility and conducting remediation of contaminated soil or water. EPA uses the authority given by consent decrees, the courts, and a combination of federal environmental statutes for its authority to address spills and contamination. EPA refers to this as cleanup enforcement.
  • EPA or a state may seek additional remedies in state or federal courts to stop an ongoing violation or to enforce an administrative order. Courts may enforce an administrative order, issue an injunction and use law enforcement resources to bring about compliance with the court orders.
  • Criminal enforcement is pursued through the courts. EPA states that it seeks stringent penalties, including jail time, to promote deterrence and compliance. EPA has a 90% conviction rate. The WDEA can also enforce through criminal sanctions.
  • A recent example of civil enforcement in Wyoming is the case of Citation Oil and Gas Corporation. Citation entered into a consent agreement with the Department of Justice and EPA in the U.S. District Court for the District of Wyoming on 1/08/2009. The Agreement requires Citation to invest approximately $580,000 on new and upgraded spill prevention controls at a production field in Johnson County, Wyoming. Citation also paid a $280,000 penalty.
  • EPA conducted a federal investigation of groundwater quality in the community of Pavilion. The investigation and a summary of the data that was collected can be found on the epa.gov website. This issue is not categorized as a stormwater issue, but it does provide a recent example of federal enforcement in Wyoming where drinking water is involved. This is an ongoing investigation.
  • The epa.gov website provides summary information on federal enforcement cases in Wyoming.
  • Section 505 of the CWA authorizes citizen lawsuits to enforce the provisions of the statute. The citizen suit is allowed when the government is not diligent in enforcement. The citizen takes the “place” of government in the litigation and seeks damages, penalties, and remedial action. A citizen suit may be a class action case where damages awarded to the citizen plaintiffs can be substantial.

VII. Navigable Waters of the U.S.—what are they? The Concerns, the Debate, and the Case Law

40 CFR 230.3.3(s)‐‐The term waters of the United States means:

1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
2. All interstate waters including interstate wetlands;
3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial purposes by Industries in interstate commerce;

4. All impoundments of waters otherwise defined as waters of the United States under this definition;

5. Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;

6. The territorial sea;

7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.

  • Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.
  • See the discussion of the Clean Water Act definition of “waters of the United States” and citations to cases and analyses. http://www.epa.gov/owow_keep/wetlands/guidance/CWAwaters.html
  • EPA promulgated a final rule to amend a CWA definition of navigable waters. This rule vacated a 2002 rule revision. See 40 CFR 110.1 and the following website.http://www.epa.gov/osweroe1/content/spcc/spcc_nov08waters.htm
  • The courts have been busy with CWA cases and court decisions frequently hinge on the definition of navigable waters. At one time, the definition of a navigable water was ‘enough water to float a toothpick”. That is no longer the case. Whether isolated wetlands, sometimes known as prairie potholes or playas, are protected as navigable waters is a question that has been hotly contested in the courts. Following are the citations to two recent cases that dominate the conversation about application of the CWA.
  • Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). The EPA website provides documents discussing the ramifications of the Rapanos decision, including guidance on implementing the decision, a memorandum on jurisdiction, and a memorandum of understanding. The 2008 Rapanos Clean Water Act Settlement is found at the following website. http://www.epa.gov/compliance/resources/cases/civil/cwa/rapanos.html
  • A criminal prosecution of Rapanos in the 6th Circuit is reported at 115 F.3d 367 (6th Cir. 1997).
  • SWANCC v. United States, Army Corps of Engineers, et al., 531 U.S. 159 (2001).

VIII. Resources

  • Citations to EPA information provided through the epa.gov website are given in the text. In addition to the websites already listed, EPA provides training modules. The CWA module is found at the following website. http://www.epa.gov/owow/watershed/wacademy/acad2000/cwa/index.htm
  • From the national media, a series of article in the New York Times focused on the Clean Water Act. For the NY Times perspective see the following website. http://projects.nytimes.com/toxic‐waters

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