March 01, 2013

Clean Water Act

JoAnne L. Dunec

Joel M. Gross and Kerri L. Stelcen, Clean Water Act, ABA Section of Environment, Energy, and Resources, Second Edition, 2012.

Clean water has been the subject of federal regulation in the United States since its earliest adopted federal pollution law, the 1899 Rivers and Harbors Act. In 1948, due to increased concern about chemical contaminants in the nation’s water resources, Congress passed the Federal Water Pollution Control Act (FWPC). In 1972, Congress adopted major revisions to the FWPC, known as the Clean Water Act. As noted by the authors, “[t]he Act is comprehensive in its coverage of discharges of pollutants into the waters of the United States, its stated goal being to ‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’” The authors continue,

The Act is a complex statute that addresses various pathways by which pollutants are discharged into the nation’s waters, including the discharge by municipalities of domestic wastewater—both treated and untreated—that contains biological and other pollution; the discharge by industry of process wastewater containing chemical and other pollution; discharges of animal wastes from livestock operations; the direct and indirect discharge of polluted stormwater from all types of facilities; the filling of waters, especially wetlands, for development; and accidental spills from vessels, pipelines, and industrial facilities, which are governed by section 311, a stand-alone component of the Act.

The Clean Water Act, is part of the Basic Practice Series, which is intended to serve as a guide to the Act. As is typical of the series, a list of acronyms used in the Act appears in the front of the book, while a more detailed glossary of terms is included at the end. Appendices include the full text of the Act, its regulations, and frequently asked questions.

The book commences with an Executive Summary, is followed by Chapters 2 and 3, which provide a history of the Clean Water Act and its general prohibition of discharges. Four types of permits are required under the Act. The National Pollutant Discharge Elimination System (NPDES) permit, one of the most prevalent is administered by the U.S. Environmental Protection Agency (EPA), allows certain kinds of discharges. An overview of the NPDES permit process is provided in Chapter 4, and related technology-based standards and water quality-based effluent limitations, including antidegradation policies and total maximum daily loads, are covered under Chapters 5 and 6. Provisions unique to publicly owned treatment works are addressed in Chapter 7.

As the authors note, “[t]he second most common permit is for ‘dredge and fill’ discharges,” which is “administered by the Army Corps of Engineers [and] issued under Section 404 of the Act.” Chapter 8 addresses Section 404 permits, wetland protection and related recent Supreme Court decisions. Discharges and spills of oil and hazardous substances are covered under Chapter 9. Point-source and nonpoint source pollution, such as agricultural or industrial runoff, are addressed in Chapters 10 and 11. Enforcement mechanisms, including citizen enforcement, are covered by the final Chapter 12.

JoAnne L. Dunec