Clean Water Act (CWA)

Federal Administrator:   U.S. Environmental Protection Agency;  U.S. Army Corps of Engineers (404 permits)

State Administrator:   WV DEP  Division of Water and Waste;  WV DEP Division of Mining and Reclamation
 
Summary:
The Clean Water Act is the main environmental statute regulating the discharges of pollutants into “surface waters of the United States.”  Congress enacted the statute to restore and maintain the chemical, physical and biological integrity of the nation’s waters.  Initially its goal was the complete elimination of pollutants into waters of the United States by 1985.  (This obviously was not accomplished).  In my mind it offers the most powerful tool for environmental advocates who want to enforce compliance with the law.  In West Virginia the state has primary authority to implement the provisions of the CWA, but federal standards are often still enforceable.  
 
Major Statutory Sections:
Section 301 (33 U.S.C. § 1311):  Generally prohibits the discharge of pollutants into from a “point source” into “Waters of the United States” without a permit.   Sets standards for Technology Based Effluent Limitations (TBELs) from point sources.  
 
Section 302 (33 U.S.C. § 1312):  Authorizes the Administrator (state or federal) to set more stringent Water Quality Based Effluent Limitations (WQBELs) for point sources when necessary to meet Water Quality Criteria. 
 
Section 303 (33 U.S.C. § 1313):  Is the foundation for the water-quality based pollution control approach of the CWA.  Water quality standards establish a goal for each water body designating uses, setting criteria for the protecting those uses and setting up an anti-degradation policy so that existing uses are maintained.  Streams that are not meeting their designated uses are required to be reported on an annual 303(d) list of impaired streams.  Watershed containing impaired streams will eventually undergo a Total Maximum Daily Load (TMDL) assessment that identifies all pollution sources and grants authority to regulate them more strictly than normal. 
 
Section 304 (33 U.S.C. § 1314):  Requires EPA to promulgated water quality criteria guidelines for the protection of designated uses.  States are permitted to depart from these guidelines so long as they can show that alternative water quality standards are sufficient to protect designated uses.  
 
Section 401 (33 U.S.C. § 1341):  Requires that applicants for federal licenses and permits obtain certification from the state in which discharges will occur.  The certification shows that the discharge will meet the requirements of both the CWA and the state equivalent.  
 
Section 402 (33 U.S.C. § 1342):  Arguably the most important section of the entire CWA.  It establishes the National Pollutant Discharge Elimination System (NPDES) to allow the discharge of pollutants into waters of the United States from a point source.  It is the main exception to the prohibition of pollutants established is § 301.  In West Virginia the program is administered by the WV DEP.  These are the permits that contain enforceable effluent limitations and require a polluter to report the amount of pollutants it is discharging on a monthly or quarterly basis.   These reports are known as Discharge Monitoring Reports (DMRs).  
 
Section 404 (33 U.S.C. § 1344):  Authorizes the U.S. Army Corps of Engineers to issue permits to control the discharge of dredged or fill material into waters of the United States.  Any new surface mine with a valley fill will have to obtain a 404 permit from the Corps, since it requires the addition of fill material into streams.  These permits are frequently challenged by the Appalachian Center for the Economy and the Environment.  They are also the permits that get a lot of attention in the political arena and by media as being “held-up” by environmental organizations and, recently, EPA.  
 
Section 505 (33 U.S.C. § 1365):  The citizen suit provision of the CWA.  Allows “any person” to sue for violations of effluent standards or other limitations, and to sue regulators for failure to perform a “non-discretionary” duty.  
 
Section 510 (33 U.S.C. 1370):  Provides the state with authority to adopt more stringent (but not less stringent) than federal standards.  
 
Key Legal Points to Enforcing Clean Water Act
Point Source:
From a citizen’s standpoint, the CWA is only enforceable against “point source” discharges.  Generally whenever people have done something to channel or contain water, this qualifies the discharge as a point source.
 
Waters of the United States:
Because it is a federal statute, the CWA is only applicable to “waters of the United States” also sometimes called “navigable waters.”  Navigable does not mean you have to float a boat on it and tributaries of navigable waters are clearly “waters of the United States.”  There has been litigation in recent years over the status of certain wetlands as waters of the United States.  
 
Permit Shield:  
Compliance with (all terms) of a section 402 permit is generally considered to be compliance with the Act.  Even if a permit has inappropriate limits on a pollutant those limits cannot be challenged through a citizen suit, they must be challenged administratively when the permit is issued.  
 
Water Quality Standards Incorporated into a Permit:
When a permit contains a standard that effluent must not cause violations of water quality standards then it may be possible to sue for violations of those water quality standards even if the permittee is otherwise meeting its permit limits.