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3 The Clean Water Act
Pages 65-96

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From page 65...
... . The Clean Water Act authorizes water quality programs, requires state water quality standards, requires permits for discharges of pollutants into navigable waters, and authorizes funding for wastewater treatment works, construction grants, and state revolving loan programs.
From page 66...
... The chapter is divided into four sections: origins of the Clean Water Act; Federal Water Pollution Control Act amendments of 1972; state-level authority in protecting water quality; and interstate water quality protection. ORIGINS OF THE CLEAN WATER ACT The Refuse Act Congress enacted the Rivers and Harbors Act of 1899 to preserve and enhance navigation in the nation's waters.
From page 67...
... This prompted Congress to expand the definition of regulated "navigable waters" in the Clean Water Act to encompass "the waters of the United States, including the territorial seas" and at least some non-navigable-in-fact waters, as discussed more fully below. The Federal Water Pollution Control Act of 1948 Congress addressed more general water quality concerns through the Federal Water Pollution Control Act of 1948.
From page 68...
... Another significant problem with the 1965 water quality standards program was the difficulty of enforcing an ambient standard regime without source-specific limitations. FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972 Congress enacted the contemporary version of the Clean Water Act through the Federal Water Pollution Control Act Amendments of 1972 (FWPCA, 1972)
From page 69...
... § 1365 Citizen suits Section 510, 33 U.S.C. § 1370 State authority Three aspects of the current Clean Water Act are particularly relevant to Mississippi River water quality and are discussed in the following sections: (1)
From page 70...
... By the time the case made its way to the Supreme Court for a final resolution almost a decade later, the Clean Water Act was firmly established as Congress's comprehensive regulatory regime for protecting and restoring water quality. Thus, while interstate water pollution lawsuits involving sewage pollution remain an important aspect of interstate water quality interactions, the Clean Water Act's requirements for sewage treatment and for interstate negotiations now control such conflicts (Craig, 2004)
From page 71...
... Second, Congress amended the Clean Water Act specifically to address CSO problems. The act now requires that "each permit, order, or decree issued pursuant to [the Clean Water Act]
From page 72...
... Federal Permit Programs for Point Sources The Clean Water Act's most basic prohibition for individual dischargers states that "except as in compliance with [the Act] , the discharge of any pollutant by any person shall be unlawful" (Section 301(a)
From page 73...
... The Clean Water Act assigns regulation of nonpoint source pollution to the states (Section 319)
From page 74...
... Indeed, in the 2006 Rapanos Supreme Court decision, concurring Justice Kennedy argued for precisely this approach, noting in particular the importance of wetlands to Mississippi River and Gulf of Mexico water quality issues. "Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular.
From page 75...
... However, it is important to remember that most wetland loss in the Mississippi River Basin occurred before Congress enacted the 1972 amendments to the Federal Water Pollution Control Act, and Section 404 of the Clean Water Act has almost nothing to say about the restoration of these past wetland losses. Moreover, given the Mississippi River's role in navigation and commerce, the Corps of Engineers has additional authority under other federal statutes, most notably the Rivers and Harbors Act of 1899, to engage in navigation-related dredging and construction activities that can continue to deplete Mississippi River wetlands.
From page 76...
... Moreover, the Clean Water Act allows states to assume NPDES permitting authority (Section 402(b)
From page 77...
... . These water quality-based effluent limitations help ensure that the Clean Water Act achieves its overall water quality goals by establishing effluent limitations that meet the water quality standards established by the states for particular waterbodies.
From page 78...
... BOX 3-1 The TMDL Program and Process The Total Maximum Daily Load program was created by the 1972 Federal Water Pollution Control Act Amendments (now the Clean Water Act ) and today is the foun dation for the nation's efforts to meet state water quality standards.
From page 79...
... Water quality criteria Under TMDL regulations promulgated in 1992, EPA requires states to list waters that are not meeting water quality standards, which establish both criteria and designated uses for waterbodies. For each impaired waterbody, the state must identify the amount by which the point and nonpoint source discharges must be reduced for the waterbody to attain its stated water quality standards.
From page 80...
... . However, given the Clean Water Act's emphasis on the states' roles in setting water quality standards, such EPA intervention is rare and most states have promulgated their own water quality standards.
From page 81...
... However, it left states "the discretion to use single sample maximum values as they deem appropriate in the context of Clean Water Act implementation programs [such as NPDES per mitting and TMDLs] other than beach notification and closure" (69 Fed.
From page 82...
... As a result, nonpoint source pollution is not subject to either of the Clean Water Act's two permitting programs and therefore remains a weakly regulated water quality issue: "The United States has made tremendous advances in the past 25 years to clean up the aquatic environment by controlling pollution from industries and sewage treatment plants. Unfortunately, we did not do enough to control pollution from diffuse, or nonpoint sources.
From page 83...
... estimates of the environmental impact and the economic and social costs of achieving the Clean Water Act's goals, the benefits such achievement would produce, and an estimated date of achievement; and (5) a description of the role of nonpoint source pollution within the state, with recommendations for controlling such pollution (Section 305(b)
From page 84...
... Moreover, the NPDES permitting agency must ensure that the effluent limitations in a particular permit are stringent enough to ensure that the receiving water achieves its water quality standards. The Clean Water Act's primary mechanism for connecting water quality standards, NPDES permit requirements, and nonpoint source regulation is the TMDL analysis.
From page 85...
... Nevertheless, the Clean Water Act provides several interstate-related provisions authorizing state action. Interstate Compacts and Interstate Agencies Related to Water Quality Congress explicitly gave its consent to the creation of interstate compacts related to water pollution.
From page 86...
... The Clean Water Act generally authorizes "grants to States and interstate agencies to assist them in administering programs for the prevention, reduction, and elimination of pollution" (Section 106)
From page 87...
... EPA's Role in Addressing Federally Licensed or Permitted Sources of Interstate Pollution As discussed above, the Clean Water Act's state certification provisions give states authority to condition federal licenses and permits to ensure that federally licensed activities do not violate state water quality standards and other water quality requirements. However, the certification provision also requires that other states potentially affected by the discharge -- generally referred to as downstream states, but for border rivers such as the Mississippi, also including cross-stream states -- be given the opportunity to ensure that their water quality requirements will be met, as well.
From page 88...
... Court of Appeals for the Fourth Circuit upheld the EPA's issuance of an NPDES permit that included terms designed to address Tennessee's concerns. EPA's Authority to Convene Interstate Nonpoint Source Management Conferences When upstream nonpoint sources impair downstream water quality and interfere with the attainment of downstream water quality standards, the downstream state can petition the EPA to convene a management conference of all of the relevant states, with the goal of reaching an interstate agreement to regulate the upstream nonpoint sources sufficiently to achieve downstream water quality requirements (Section 319(g)
From page 89...
... . In contrast, when states such as Louisiana work to address nonpoint source pollution of the Mississippi River through their own nonpoint source management programs, they do not appear to use the Clean Water Act's conferencing mechanism (LDEQ, 1999)
From page 90...
... First, a downstream state with impaired waters might attempt to use the TMDL process to directly force particular point and nonpoint sources in upstream or cross-stream states to comply with more stringent discharge limitations and BMP requirements, respectively, in order to help achieve the downstream state's water quality standards. Because sources within the upstream and cross-stream states are the regulatory province of those other states, the Clean Water Act's TMDL provisions probably do not authorize downstream states to engage in this kind of direct cross-border regulation.
From page 91...
... Thus, achievement of the mercury water quality standard in the Ochlockonee River will require increased regulation of out-of-state sources, probably through the EPA's interstate authority under the Clean Air Act. Addressing nutrient pollution in the mainstem Mississippi River to improve water quality in the Gulf of Mexico almost would certainly require TMDLs with interstate effects, as Gulf of Mexico TMDLs are already demonstrating.
From page 92...
... Coupled with the EPA's authority to approve and disapprove state water quality standards and to encourage cooperative interstate efforts, this broad grant of water quality criteria-setting authority could allow
From page 93...
... the EPA to guide multistate attention to interstate water quality issues on large rivers. Moreover, the Clean Water Act expressly directs the EPA to consider scientific information regarding "the concentration and dispersal of pollutants" and effects such as "rates of eutrophication and rates of organic and inorganic sedimentation for varying types of receiving waters" (Section 304(a)
From page 94...
... Specifically, the CWA requires states to develop water quality standards that consist of designated uses and water quality criteria that define acceptable pollutant levels for the waterbody given those designated uses. Notably, however, the Clean Water Act addresses nonpoint source pollution only in a limited, indirect manner.
From page 95...
... Section 303 of the Clean Water Act requires states or the EPA to develop TMDLs for waters that do not meet water quality standards. TMDLs require regulators to look comprehensively at all sources of water pollution -- point source, nonpoint source, and background.
From page 96...
... take over from states the setting of water quality standards and TMDLs when state efforts do not comply with the Clean Water Act's requirements; (2) convene, at a state's request, interstate nonpoint source management conferences; (3)


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