ELI Summer School
CLEAN WATER ACT
Sean M. Sullivan
Williams Mullen
Nathan Gardner-Andrews
NACWA
June 20, 2007
CLEAN WATER ACT
The Act: An Overview of Central Provisions
Recent Developments:
Cases
Requirements Applicable to POTWs
OVERVIEW
 History
 Substantive Provisions
 Procedural Features
OVERVIEW
 History
 Substantive Provisions
 Procedural Features
Federal Water Pollution Control Act
Amendments of 1972, P.L. 92-500
(Oct. 18, 1972): Major Features
1.
2.
3.
4.
5.
Federal Permit Program ("NPDES")
Federal-State Partnership
Technology-based standards
Water quality standards
Massive grants program for POTWs
History - Major Amendments Since 1972:
 Clean Water Act of 1977, P.L. 95-217 (Dec.
27, 1977)
 Municipal Wastewater Treatment
Construction Grant Amendments of 1981,
P.L. 97-117 (Dec. 29, 1981)
 Water Quality Act of 1987, P.L. 100-4 (Feb.
4, 1987)
Clean Water Act of 1977, P.L. 95217 (Dec. 27, 1977).
1. Extensive Amendments
2. Toxics: NRDC v. Train Settlement
Codified
3. Rewrote deadlines
4. Gave statute its popular name
Municipal Wastewater Treatment
Construction Grant Amendments of
1981, P.L. 97-117 (Dec. 29, 1981).
1. Extensive Amendments
2. Municipal grants program overhaul
3. More money, more uses
Water Quality Act of 1987, P.L.
100-4 (Feb. 4, 1987).
1.
2.
3.
4.
Extensive Amendments
Strengthened Enforcement and Penalties
Toxic Control Strategies
Non-Point source programs
History: Special-purpose amendments
P.L. 106-457 (2000):





Alternative Water Sources Act of 2000
Lake Pontchartrain Basin Restoration Act of 2000
Long Island Sound Restoration Act
Chesapeake Bay Restoration Act of 2000
Beaches Environmental Assessment and Coastal Health
Act of 2000
P.L. 103-431 (1994): Ocean Pollution Reduction Act
P.L. 101-596 (1990): Great Lakes Critical Programs
Act of 1990
* * * *
P.L. 98-67 (1983): The Virgin Islands Rum Act
History: Trends
 Less EPA Discretion
 Missed Deadlines Court Orders & Consent
Decrees
 Increasing Focus on Toxics
 Loosening of Municipal Standards
 Increasing Penalties
OVERVIEW
 History
 Substantive Provisions
 Procedural Features
Core Provisions: The 3 P’s
Prohibition - § 301
Permits -
Penalties -
§§ 402, 404
§ 309
3 P’s: Prohibition: § 301(a)
Any discharge of pollutants from a
point source to navigable waters is
prohibited, except as permitted
Discharge:
-
any addition of any pollutant to
navigable waters from any point source
-
any addition of any pollutant to the
contiguous zone or ocean from any point
source other than vessels
Pollutant:
dredged spoil, solid waste, sewage, garbage,
sludge, chemical wastes, biological materials,
heat, wrecked or discarded equipment, rock, sand,
cellar dirt and industrial, municipal and
agricultural waste discharged into water
Excluded: sewage from vessels or discharges
incidental to operation of a vessel of the
Armed Forces
Point source:
any discernible, confined and discrete conveyance
. . . from which pollutants are or may be
discharged
Includes: Vessels
concentrated animal feeding operations
(CAFOs)
Excluded: agricultural stormwater discharges
irrigation return flows
non-point sources
Navigable waters:
waters of the United States, including the
territorial seas
Congress sought broadest possible definition
under the Commerce Clause, beyond “traditionally
navigable” waters.
3 P’s: Permits
National Pollutant Discharge Elimination
System (NPDES) - § 402

Federal-State “Partnership”

Federally designed

State administered, Federally supervised

5-year Permits

46 of 55 States have NPDES Programs
4 R’s of NPDES Permits

Restrictions on discharges

Reporting requirements

Reopeners

Revocability
4 R’s: Restrictions on Discharges
Technology-based Effluent Limitations
Effluent Limitation Guidelines (ELG’s), § 304(b)
New Source Performance Standards, § 306
Secondary Treatment Standards
Pretreatment Standards for Indirect Discharges,
§ 307(b)
Water Quality-based limitations
4 R’s: Restrictions on Discharges
Technology-based Effluent Limitations
Best Practicable Technology (BPT)
Best Available Technology (BAT)
Best Conventional Technology (BCT)
Best Available Control Technology
(“BACT”)
Secondary Treatment for Municipals
4 R’s: Restrictions on Discharges
Water Quality-based Restrictions
Any more stringent limitation, § 301(b)(1)(C)
Water quality standards, § 303
 Designated uses
 Criteria
 Nondegradation
Total maximum Daily Loads (TMDLs), § 303(d)
 Waste Load Allocations – point sources
 Load Allocations – nonpoint sources
4 R’s: Reporting Requirements
Noncompliance – DMR’s
Changes in discharges
Upsets, By-Passes
4 R’s: Reopeners
Change in circumstances
Change in discharge
Change in applicable toxic standards
4 R’s: Revocability
Submission of false or misleading information
Violation of permit
3 P’s: Penalties
Administrative Penalties, § 309(g)


Class I: $11,000/$27,500
Class II: $11,000/$137,500
($12,000/$31,500)
($12,000/$157,500)
Civil Penalties, § 309(d)


Federal district courts
$27,500 per day per violation ($31,500)
Federal Civil Penalties Inflation Adjustment Act of
1990, note at 28 U.S.C. § 2461, 40 C.F.R. §
19.4(2000)
67 Fed. Reg. 41343 (June 18, 2002), eff. Aug. 19,
2002.
3 P’s: Criminal Penalties
Negligent violations
$2,500 to $25,000 fine
1-year imprisonment
Knowing violations
$5,000 to $50,000 fine
3 years
Knowing endangerment
$250,000/$1,000,000 fine
15 years
Other Programs
Municipal Grants Program
Areawide Planning and Continuing
Planning Process, §§ 208, 303(e)
Oil and hazardous substance spills, § 311
State certifications, §401
Ocean discharge criteria, §403
Dredge & Fill Permit Program, § 404
OVERVIEW
 History
 Substantive Provisions
 Procedural Features
Procedural Features
Preclusive judicial review, § 509(b)
Federal-state relationship
Savings Clause, § 510
Citizen Suits, § 505
Clean Water Act
Additional Information
Statute:
33 U.S.C. § 1251 et. seq.
EPA Regulations:
EPA:
40 C.F.R. Parts 104-140
401-503
Introduction to the Clean Water Act
http://www.epa.gov/watertrain/owa/
Themes for New CWA Cases
 What is a Navigable Water?
 The Saga of 316(b)
 Other NPDES Program Developments
Significant Cases from the
Previous Year
 United States v. Rapanos – Supreme Court
“clarifies” jurisdiction of Corps over wetlands
Significant Cases (cont’d)
Significant Cases (cont’d)
Significant Cases (cont’d)
Themes for New CWA Cases
 What is a Navigable Water?
 The Saga of 316(b)
 Other NPDES Program Developments
United States v. Rapanos
126 S.Ct. 2208 (2006)
 Background – case involves two parcels of
land containing wetlands that are “adjacent”
to tributary of navigable water

Corps’ statutory jurisdiction extends to
“navigable waters,” defined as “waters of
the United States”
United States v. Rapanos (cont’d)
 Background (cont’d)

Corps interprets its jurisdiction to
include:
• Navigable water bodies
• Tributaries to navigable water bodies
• Wetlands adjacent to both
United States v. Rapanos (cont’d)
 Background (cont’d)

United States v. Riverside Bayview Homes,
474 U.S. 121 (1985)
• Corps has jurisdiction over wetlands adjacent to
navigable water bodies because of difficulty in
determining where water ends and land begins
• Court reserved issue of Corps’ jurisdiction over
wetlands adjacent to tributaries of navigable
waters
United States v. Rapanos (cont’d)
 Background (cont’d)

Solid Waste Agency of Northern Cook County
v. United States Army Corps of Engineers,
531 U.S. 159 (2001)
• Isolated, abandoned gravel pit occasionally
providing shelter to migratory birds is not “water
of the United States”
• Pit had no “significant nexus” to navigable waters
United States v. Rapanos (cont’d)
 The Decision




5-4 vote to remand case
Plurality Opinion (Scalia) – four votes
• Remand to apply proper understanding of
“waters of the United States”
Concurring Opinion (Kennedy)
• Remand to apply significant nexus test
from SWANCC
Dissenting Opinion (Stevens) – four votes
• Defer to Corps on Chevron grounds
United States v. Rapanos (cont’d)
 The Plurality Opinion

Scalia, Roberts, Thomas, Alito

Notes Riverside Bayview left open status of
wetlands in tributaries to navigable waters

Evaluates whether “waters of the United
States” includes intermittently flowing
tributaries
• Uses Webster’s Dictionary to define
“waters”
United States v. Rapanos (cont’d)
 The Plurality Opinion (cont’d)
 Corps’ jurisdiction over tributary and adjacent
wetlands depends on regular water flow
 Establishing that tributary empties into
navigable water (when flow is present) not
enough
United States v. Rapanos (cont’d)
 Justice Kennedy’s Concurrence



Focuses on whether there is “substantial
nexus” between wetland and navigable
water
Approach comes from court’s decision in
SWANCC
J. Kennedy would have Corps evaluate
effect of wetland on water quality in
navigable water and base jurisdictional
decision on existence of such an effect
United States v. Rapanos (cont’d)
 Justice Kennedy’s Concurrence (cont’d)
 J. Kennedy’s approach rejected by
plurality and dissent as unauthorized by
the CWA

Effects of J. Kennedy’s Concurrence
• Kennedy is deciding vote
• If party can satisfy his test and satisfy
either plurality or dissenters, they win
• Thus, the substantial nexus test must
be a component of Corps’ jurisdictional
analysis
United States v. Rapanos (cont’d)
 Justice Stevens’ Dissent


Riverside Bayview controls outcome
Defers to Corps’ exercise of jurisdiction
on Chevron grounds:
• Corps determined wetlands adjacent to
tributaries of navigable waters can
affect water quality of navigable waters
• This is reasonable basis for Corps to
assume jurisdiction
United States v. Rapanos (cont’d)
 Justice Stevens’ Dissent (cont’d)

Advises the lower courts to find jurisdiction if
either the Plurality test or the Kennedy test is
satisfied.
The Aftermath of Rapanos
 As expected, the courts have struggled with
how to apply the result of the decision.
 Several Courts of Appeal have already
addressed the issue, including:



The First Circuit
The Seventh Circuit
The Ninth Circuit
The Aftermath of Rapanos
(cont’d)
 The First Circuit

United States v. Johnson, 467 F.3d 56 (1st Cir.
2006).
• Court follows J. Stevens’ advice.
• If a wetland satisfies either the Plurality test or the
Kennedy test, it is a water of the United States.
 The Seventh Circuit

United States v. Gerke Excavating Co., 464
F.3d 723 (7th Cir. 2006).
• Court finds, as a practical matter, that the Kennedy
test determines whether a wetland is jurisdictional.
The Aftermath of Rapanos
(cont’d)
 The Ninth Circuit

Northern California River Watch v. City of
Healdsburg, 457 F.3d 1023 (9th Cir. 2006).
• Court ruled that a pond was a water of the United
States and subject to NPDES permitting jurisdiction.
• Decision relies on definition of wetland as being
“areas inundated or saturated by surface or
groundwater.”
• Court held that the pond was a wetland adjacent to a
navigable water and that the pond had a significant
nexus to the navigable water due to the hydrological
connection between them.
The Aftermath of Rapanos
(cont’d)
 The Ninth Circuit (cont’d)

San Francisco Baykeeper v. Cargill Salt
Division, 481 F.3d 700 (9th Cir. 2007).
• Court finds that a pond adjacent to a navigable water
is not a water of the United States.
• Court assumes that the pond is not a wetland
because Baykeeper did not assert that it was one.
• Thus, the Court did not engage in the adjacent
wetland analysis from City of Healdsburg.
The Aftermath of Rapanos
(cont’d)
 Similar cases are pending before:



The Second Circuit;
The Third Circuit; and
The Sixth Circuit.
Themes for New CWA Cases
 What is a Navigable Water?
 The Saga of 316(b)
 Other NPDES Program Developments
The Saga of 316(b)
 Statute requires EPA to adopt standards to
reduce the number of aquatic organisms that
are trapped by cooling water intake
structures.

EPA must require “the best technology
available” for minimizing environmental
impacts (“BTA”).
 Rulemaking has been going on since the
1970s.
 Currently, a consent decree requires EPA to
develop these standards in three phases.
The Saga of 316(b) (cont’d)
 EPA issued the Phase I rules regarding
intake structures at new facilities in 2001.


Most of these rules survived judicial review.
But, the Second Circuit rejected the option to
do restoration work in lieu of fully complying
with the technical standards.
 EPA issued the Phase II rules regarding
large, existing power plants in July, 2004.


Rules set ranges of mortality reductions and
again adopted the restoration option.
Second Circuit remanded most of these rules
back to EPA.
The Saga of 316(b) (cont’d)
 Riverkeeper, Inc. v. U.S. EPA, 475 F.3d 83
(2d Cir. 2007).


Court rejected EPA’s determination of BTA.
EPA may consider costs in two ways when
determining BTA:
• Whether the costs of a technology be “reasonably
borne” by the industry; and
• Once EPA identifies the level of performance
achieved by BTA, it can then consider costs to
choose among technologies that achieve similar
results.

EPA cannot compare the cost of BTA to the
benefits achieved.
The Saga of 316(b) (cont’d)
 Riverkeeper, Inc. v. U.S. EPA, 475 F.3d 83
(2d Cir. 2007) (cont’d).

Court found that it was permissible to set
ranges of required mortality reductions.
• But, the agency must require permittees to choose
the technology that achieves the greatest reduction
in mortality that is “technologically possible.”

Court rejected EPA’s attempt to incorporate the
restoration option into the Phase II rules.
The Saga of 316(b) (cont’d)
 Riverkeeper, Inc. v. U.S. EPA, 475 F.3d 83
(2d Cir. 2007) (cont’d).

Court also rejected EPA’s Site Specific
Compliance Alternatives
• Rejected “Cost-Cost” provision due to lack of
opportunity for public comment.
• Rejected “Cost-Benefit” provision because EPA
cannot engage in such an analysis under 316(b).
Themes for New CWA Cases
 What is a Navigable Water?
 The Saga of 316(b)
 Other NPDES Program Developments
Conclusion
Wastewater Treatment:
Clean Water Act
Requirements
. . . Emerging Policy
Challenges
U.S. Wastewater Treatment –
Protects Public Health
o 16,000 publicly owned
treatment works (POTWs)
o 100,000 major pumping
stations
o 600,000 miles sanitary
sewers
o 200,000 miles storm
sewers
o 32 billion gallons of
wastewater treated daily
Secondary Treatment
 1972 Clean Water Act provided federal
grants to create the most advanced public
wastewater treatment systems in the world
√ $61.1 billion
appropriated in
construction grants
program
√ Today, virtually all
utilities use secondary
treatment; many use
advanced
Secondary Treatment
o A technology-based standard
– set out in CWA §
301(b)(1)(B); regulations at 40
CFR 133.102
o Biological process in which
bacteria & microorganisms
consume organic material
o A multi-phased process of
treatment varying by city —
primary, secondary,
disinfection
Sewer Types & Challenges
Combined Sewers (CSO)
o Collect storm & sanitary water; in
approximately 800 US Cities (NE, SE,
NW) (40 million people)
o Overflow points activate when system
capacity exceeded
Separate Sewers (SSO)
o Separately collect storm & sanitary
water
o Sanitary water treated at POTW
o Storm water released with “best
management practices” treatment (see
CWA 402(p))
Sewer Overflow Causes
o Inflow & infiltration, blockages (e.g.,
roots, oil), illicit connections, age, wet
weather (snow, rains)
CSO/SSO Impacts
o http://cfpub.epa.gov/npdes/cso/cpolicy
_report2004.cfm (EPA’s 2004 Report)
o CSO volume has dropped from over
1 trillion gal/yr to 850 billion gal/yr
since 1994 (issuance of CSO Policy);
o $6 billion spent by cities on CSO
control since 2002;
o Estimates total SSO volume of 3-10
billion gal/yr; and
o Estimates that over the next 20 years,
$88 billion needed to control SSOs,
$50.6 billion to control CSOs
CSO Law & Regulation
o 1994 CSO Policy
o CSO outfalls are “point sources” &
require NPDES permits under CWA
§ 402
o CSOs must meet “9 Minimum
Controls” (e.g., # 8–Public
Notification )
o CSO cities to develop long term
control plans to achieve water quality
standards
o CSO Policy codified (§ 402(q)) (2001)
o Many, many CSO guidance documents
(http://cfpub.epa.gov/npdes/cso/
guidedocs.cfm)
o Enforcement priority for FY 2005-07
SSO Law & Regulation
o SSOs are illegal discharge (EPA
position: can not permit)
o 1994-1999: FACA attempts to
reach consensus on a federal
program
o 1/3/01: Outgoing Administrator
Browner signs SSO Proposal
o 1/24/01: Incoming Administration
halts last minute regulatory
actions
o Work on SSO program on hold
until after peak flow (blending)
policy completed
Wastewater Blending





December 22, 2005:
EPA proposes peak
flow policy based on
NACWA/NRDC
proposal
A middle ground
approach
Year long negotiation
62 substantive
comments filed
(compare: 98,000 on
2003 EPA proposal)
Final policy: Fall ‘06
Sewage Sludge
o CWA § 405; 40 CFR Part 503
o Any solid, semisolid, liquid residue
removed in treatment of municipal
wastewater & domestic sewage
o Management methods
o Land application (60%) (40 CFR
503 Subpart B)
o Landfill (17%) (40 CFR 503
Subpart C)
o Incinerate (20%) (40 CFR 503
Subpart E)
o Land/mine reclamation (3%)
o On-going battles at local level over
land application
Pretreatment
o Prevents industrial,
nondomestic sources from
discharging pollutants to
POTWs not susceptible to
treatment, could interfere, or
pass through
o POTWs carry out programs
under CWA 307(b); 40 CFR
403.8 et seq.
o Categorical standards for
various industries (CWA
307(c); 40 CFR, chapter I,
subchapter N, parts 400-471)
o Additional local limits address
local water quality issues
Water Security
o Water & wastewater: critical
U.S. infrastructure sector
o Information Sharing & Analysis
Centers (ISAC): keep cities
informed and distribute secure
information
o Among the key security issues:
o Decontamination wastewater
o Chlorine gas storage
o Vulnerability assessments
o Mandates?
o New regulations?
o Prioritization
Paying for Clean Water
 Our waterways are at risk because
much of our clean water infrastructure
is in need of repair and replacement
 Many communities use pipes that are
over one hundred years old
 The American Society of Civil
Engineers (ASCE) graded the nation’s
water/wastewater infrastructure a D According to ASCE, many systems
have reached the end of their useful
lives
Grants Replaced With Loans
Grants program phased out in 1987,
replaced by Clean Water State Revolving
Fund (SRF)




Low-interest loans: today’s primary
source of federal support
$47 billion provided since 1988; SRF
successful in its mission
SRF continues to get cut – down
33%, from $1.35 billion in 2004 to
$900 million in FY 2006
Further cuts proposed for 2007 and
zeroing out the program completely
by 2011
A Case for Greater Federal Investment
 Needs are large
and
unprecedented
 Many
communities
cannot afford the
escalating costs
alone
 Protect federal
funding for clean
water from
budget cuts
 Why not water?
 HR 4560
Time To Think Creatively
Questions