Water Quality

Control
 Water pollution control -
the early years

 1899 Rivers and Harbors Act

 Original FWPCA passed in 1948

 Primarily State-developed ambient

water quality standards
Cuyahoga River fire
Santa Barbara oil spill
 CWA 1972 Amendments

 Goal: “To restore and maintain the

chemical, physical, and biological integrity
of the Nation’s waters”
 Fishable and swimmable by 1983; total
elimination discharge of pollutant
discharges into navigable waters by 1985
 CWA Framework

 Cooperative federal-state implementation

 Water-quality based AND technology-based
standards
 Discharge permitting program
 System for bringing waters into compliance
 Management system for oil spills
 Permits for dredging and filling (wetlands)
Overview of CWA
 Water Quality Standards
Step 1: Determine
Designated Uses

- Must include all

existing uses
- Must include
fishable/swimmable,
with rare exceptions
- Most sensitive use
controls
 Water Quality Standards
Step 2: Determine Water Quality Criteria

- Must protect all designated uses

- Can be numeric or narrative
- Categories include human health, aquatic
life, other wildlife
- WQS established by States/tribes
- States and tribes must adopt a
corresponding criterion; EPA reviews and
approves (or not)
- Reviewed every 3 years
 Water Quality Standards
Step 3: Antidegradation Policy

Purpose: Prevent deterioration of water

meeting standards
Tier 1: Protect existing uses and water quality
necessary to support such uses
Tier 2: Maintain and protect “high quality”
waters
Tier 3: No degrading waters designated as
“outstanding national resource waters”
 Impaired Waters List

 Also known as Section 303(d) List

 Do not meet water quality standards even after
full implementation of existing permits
 States must update every 2 years
 States must consider all available data and
circulate list for public comment before
submitting to EPA
 303(d) list must prioritize waters for attention
 Watershed Restoration Plans
(TMDLs)
 Designed to address “impaired waters”
 States or EPA develop “Total Maximum Daily
Loads” (TMDLs) for each impaired or
threatened waterbody
 TMDL includes a pollution cap, allocation of the
cap among sources, and a plan for action
 Applies to point and nonpoint sources
 Where technology-based standards are
inadequate to meet TMDL, additional water-
quality based effluent limits may also apply
 Point Source Control
 All point source discharges required to obtain
National Pollutant Discharge Elimination System
(NPDES) permit
 Three classifications for pollutants:
Conventional, Toxic, and Nonconventional
 Different technology-based standards for each
 Stricter standards may be imposed when
necessary to achieve water quality standards
 Citizens may sue for violations
CAFO
Stormwater
Mining runoff
 Technology-Based Effluent
Limitations
 Best Practicable Pollutant Control
Technology Currently Available (BPT)
 Best Conventional Pollution Control
Technology (BCT)
 Best Available Technology Economically
Achievable (BAT)
 New Source Performance Standards
 Nonpoint Source Control:
Section 319

 Nonpoint source pollution originates from diffuse

sources
 Added to CWA in 1987
 Mostly voluntary actions, some regulatory
 Federal grants available to States that create
and update plans for reducing nonpoint source
pollution
 State Water Quality Certification:
Section 401

 States authorized to veto or condition

federally permitted activities that may result
in water pollution
 Applies to any applicant for a federal permit
or license that may result in a discharge of
pollutants to navigable waters
 State has 4 options: certify, certify with
conditions, deny, or waive authority
Wetlands Regulation
 Clean Water Act
Section 404

 Anyone who proposes an activity that would

discharge dredge or fill material into “waters of the
U.S.” must obtain permit from Army Corps of
Engineers
 States may coordinate with Corps, review
compliance with state WQ standards
 EPA: oversight role
 Goals: Avoid, minimize, mitigate adverse impacts
 Other laws may affect permit decision
 What are “waters of the
U.S.?”
 Navigable waters
 Interstate waters
 Territorial sea
 Other waters affecting the integrity of
interstate commerce
 Tributaries of waters
 Wetlands adjacent to waters
Isolated wetlands
Rapanos v. U.S. (June 2006)
Rapanos v. U.S. (June 2006)
ISSUE:

Does the Clean Water Act extend to

wetlands that are hydrologically isolated
from any of the "waters of the United
States?”
 Rapanos: 4-1-4 split
 Plurality: “Waters of the U.S.” includes
“only relatively permanent, standing or
flowing bodies of water”
 Concurrence: Corps required to establish
a “significant nexus” between wetlands
and navigable waters on a case-by-case
basis
 Dissent: Broader interpretation of “waters
of the U.S.” Agencies should resolve
question through rulemaking rather than
leaving it to courts
EPA and Corps Proposed Rule on
CWA Jurisdiction (2014)
 Jurisdictional wetlands: Traditional navigable
waters, interstate waters, relatively
permanent non-navigable tributaries,
adjacent wetlands
 Other waters may also be jurisdictional if a
fact-specific analysis indicates a “significant
nexus” to navigable or interstate waters
 Categorically non-jurisdictional waters:
artificial pools, gullies, ditches that do not
meet significant nexus criteria
October 2015: Sixth Circuit puts
rule on hold
 Mitigation Requirements

 “No net loss” through three steps: avoid,

minimize, compensate
 Section 404 does not expressly require
mitigation, but courts have upheld
agency authority to require mitigation via
regulations and guidelines
 Compensation may include restoration
or enhancement of degraded wetlands,
preservation of existing wetlands, and
creation of new wetlands where none
previously existed
 Compensatory Mitigation Rules
(2008)

 Emphasize best
available science
 Promote innovation
 Sound and
enforceable
administrative
requirements
 Enhanced public
participation
 Water Rights
 Link between water quality and
quantity
 Riparian: adjacent users share water

 Appropriative: First in time, first in

right
 Washington is primary appropriative

 Beneficial uses defined by statute