Clean Water Act

Introduction

The Clean Water Act (CWA) , originally enacted as the Federal Water Pollution Control Act of 1972, is the primary federal statute regulating water pollution in the United States. The CWA prohibits the discharge of pollutants into navigable waters without a permit, establishes water quality standards, and provides for the restoration and maintenance of the chemical, physical, and biological integrity of the nation’s waters.

The Scope of the CWA: Navigable Waters

The CWA applies to navigable waters, defined as “waters of the United States, including the territorial seas.” The definition of Waters of the United States (WOTUS) has been the subject of extensive litigation and regulatory uncertainty. The Supreme Court has addressed the scope of the CWA’s jurisdiction in five major cases.

In United States v. Riverside Bayview Homes (1985), the Court held that the CWA covers wetlands adjacent to navigable waters. In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001), the Court held that the CWA does not extend to isolated, intrastate, non-navigable waters based solely on their use by migratory birds. In Rapanos v. United States (2006), the plurality opinion by Justice Scalia held that the CWA covers only relatively permanent, standing, or continuously flowing waters and wetlands with a continuous surface connection.

The NPDES Permit Program

Section 301 of the CWA prohibits the discharge of any pollutant from a point source into navigable waters unless authorized by a permit. The National Pollutant Discharge Elimination System (NPDES) permit program, established under Section 402, is the primary mechanism for regulating discharges. NPDES permits set effluent limitations based on technology-based standards and water quality-based standards.

NPDES permits may be issued by the EPA or by authorized state programs. The permit establishes discharge limits, monitoring requirements, and compliance schedules. Noncompliance with permit conditions is a violation of the CWA and may result in enforcement action, including civil penalties and injunctive relief.

Wetlands Regulation

Section 404 of the CWA regulates the discharge of dredged or fill material into waters of the United States, including wetlands. The program is administered by the U.S. Army Corps of Engineers, with the EPA exercising oversight authority. Section 404 permits are required for activities that involve placing fill material in wetlands or other waters.

The Section 404 permitting process includes alternatives analysis (requiring applicants to demonstrate that there is no practicable alternative with less adverse impact), mitigation requirements, and public participation. The EPA may veto Corps permits under Section 404(c).

Water Quality Standards

Under Section 303, states must adopt water quality standards for waters within their borders. Water quality standards include designated uses for each water body (such as drinking water, recreation, or aquatic life) and criteria necessary to protect those uses. States must identify waters that do not meet applicable standards —303(d) listed waters—and establish Total Maximum Daily Loads (TMDLs) for pollutants causing the impairment.

Oil Spill Liability

Section 311 of the CWA prohibits the discharge of oil or hazardous substances in harmful quantities into navigable waters. The section establishes liability for oil spill cleanup costs and damages, requires spill prevention and response planning, and imposes penalties for noncompliance.

Conclusion

The Clean Water Act is the primary federal statute for protecting water quality. The NPDES permit program regulates point source discharges, Section 404 regulates wetlands filling, and water quality standards establish goals for water body health. The ongoing controversy over the definition of WOTUS reflects fundamental disagreements about the scope of federal authority over water resources.