Clean Water Act
The Clean Water Act is the primary federal law
Federal law
Federal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join together in a federation, surrendering their individual sovereignty and many powers to the central government while...

 in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 governing water pollution
Water pollution
Water pollution is the contamination of water bodies . Water pollution occurs when pollutants are discharged directly or indirectly into water bodies without adequate treatment to remove harmful compounds....

. Commonly abbreviated as the CWA, the act established the goals of eliminating releases of high amounts of toxic substances into water, eliminating additional water pollution
Water pollution
Water pollution is the contamination of water bodies . Water pollution occurs when pollutants are discharged directly or indirectly into water bodies without adequate treatment to remove harmful compounds....

 by 1985, and ensuring that surface water
Surface water
Surface water is water collecting on the ground or in a stream, river, lake, wetland, or ocean; it is related to water collecting as groundwater or atmospheric water....

s would meet standards necessary for human sports and recreation by 1983.

The principal body of law currently in effect is based on the Federal Water Pollution Control Amendments of 1972 and was significantly expanded from the Federal Water Pollution Control Amendments of 1948. Major amendments were enacted in the Clean Water Act of 1977 and the Water Quality Act of 1987.

The Clean Water Act does not directly address groundwater
Groundwater is water located beneath the ground surface in soil pore spaces and in the fractures of rock formations. A unit of rock or an unconsolidated deposit is called an aquifer when it can yield a usable quantity of water. The depth at which soil pore spaces or fractures and voids in rock...

 contamination. Groundwater protection provisions are included in the Safe Drinking Water Act
Safe Drinking Water Act
The Safe Drinking Water Act is the principle federal law in the United States intended to ensure safe drinking water for the public. Pursuant to the act, the Environmental Protection Agency is required to set standards for drinking water quality and oversee all states, localities, and water...

, Resource Conservation and Recovery Act
Resource Conservation and Recovery Act
The Resource Conservation and Recovery Act , enacted in 1976, is the principal Federal law in the United States governing the disposal of solid waste and hazardous waste.-History and Goals:...

, and the Superfund
Superfund is the common name for the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 , a United States federal law designed to clean up sites contaminated with hazardous substances...


Waters Protected Under the CWA

All waters with a "significant nexus" to "navigable waters" are covered under the CWA; however, the phrase "significant nexus" remains open to judicial interpretation and considerable controversy. (See Case law.) The 1972 statute frequently uses the term "navigable waters," but also defines the term as "waters of the United States, including the territorial seas." Some regulations interpreting the 1972 law have included water features such as intermittent streams, playa lakes, prairie pothole
Prairie pothole
The Prairie Pothole Region is an area of the northern Great Plains and midgrass and tallgrass prairies that contains thousands of shallow wetlands known as potholes. These potholes are the result of glacier activity in the Wisconsin glaciation, which ended approximately 10,000 years ago...

s, sloughs
In geography, a marsh, or morass, is a type of wetland that is subject to frequent or continuous flood. Typically the water is shallow and features grasses, rushes, reeds, typhas, sedges, other herbaceous plants, and moss....

 and wetland
A wetland is an area of land whose soil is saturated with water either permanently or seasonally. Wetlands are categorised by their characteristic vegetation, which is adapted to these unique soil conditions....

s as "waters of the United States"

In 2006 a plurality of the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 held that the term "waters of the United States":
...includes only those relatively permanent, standing or continuously flowing bodies of water "forming geographic features" that are described in ordinary parlance as "streams[,] ... oceans, rivers, [and] lakes."

Point sources

The 1972 act introduced the National Pollutant Discharge Elimination System (NPDES), which is a permit system for regulating point source
Point source
A point source is a localised, relatively small source of something.Point source may also refer to:*Point source , a localised source of pollution**Point source water pollution, water pollution with a localized source...

s of pollution. Point sources include:
  • industrial facilities (including manufacturing
    Manufacturing is the use of machines, tools and labor to produce goods for use or sale. The term may refer to a range of human activity, from handicraft to high tech, but is most commonly applied to industrial production, in which raw materials are transformed into finished goods on a large scale...

    , mining
    Mining is the extraction of valuable minerals or other geological materials from the earth, from an ore body, vein or seam. The term also includes the removal of soil. Materials recovered by mining include base metals, precious metals, iron, uranium, coal, diamonds, limestone, oil shale, rock...

    , oil and gas extraction, and service industries)
  • municipal governments and other government facilities (such as military bases), and
  • some agricultural facilities, such as animal feedlot
    A feedlot or feedyard is a type of animal feeding operation which is used in factory farming for finishing livestock, notably beef cattle, but also swine, horses, sheep, turkeys, chickens or ducks, prior to slaughter. Large beef feedlots are called Concentrated Animal Feeding Operations . They...


Point source
Point source
A point source is a localised, relatively small source of something.Point source may also refer to:*Point source , a localised source of pollution**Point source water pollution, water pollution with a localized source...

s may not discharge pollutants to surface waters without a permit from the National Pollutant Discharge Elimination System (NPDES). This system is managed by the United States Environmental Protection Agency
United States Environmental Protection Agency
The U.S. Environmental Protection Agency is an agency of the federal government of the United States charged with protecting human health and the environment, by writing and enforcing regulations based on laws passed by Congress...

 (EPA) in partnership with state environmental agencies. EPA has authorized 46 states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

 to issue permits directly to the discharging facilities. The CWA also allows tribes to issue permits, but no tribes have been authorized by EPA. In the remaining states and territories
United States territory
United States territory is any extent of region under the jurisdiction of the federal government of the United States, including all waters including all U.S. Naval carriers. The United States has traditionally proclaimed the sovereign rights for exploring, exploiting, conserving, and managing its...

, the permits are issued by an EPA regional office. (See Titles III and IV.)

In previous legislation, Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 had authorized states to develop water quality standards, which would limit discharges from facilities based on the characteristics of individual water bodies. However, these standards were only to be developed for interstate waters, and the science to support this process (i.e. data, methodology) was in the early stages of development. This system was not effective and there was no permit system in place to enforce the requirements. In the 1972 CWA Congress added the permit system and a requirement for technology-based effluent limitations.

Technology-based standards

The 1972 CWA created a new requirement for technology-based standards for point source discharges. EPA develops these standards for categories of dischargers, based on the performance of pollution control technologies without regard to the conditions of a particular receiving water body. The intent of Congress was to create a "level playing field" by establishing a basic national discharge standard for all facilities within a category, using a "Best Available Technology
Best Available Technology
Best available technology is a term applied with regulations on limiting pollutant discharges with regard to the abatement strategy. Similar terms are best available techniques , best practicable means or best practicable environmental option...

." The standard becomes the minimum regulatory requirement in a permit. If the national standard is not sufficiently protective at a particular location, then water quality standards may be employed.

Water quality standards

The 1972 act authorized continued use of the water quality-based approach, but in coordination with the technology-based standards. After application of technology-based standards to a permit, if water quality
Water quality
Water quality is the physical, chemical and biological characteristics of water. It is a measure of the condition of water relative to the requirements of one or more biotic species and or to any human need or purpose. It is most frequently used by reference to a set of standards against which...

 is still impaired for the particular water body, then the permit agency (state or EPA) may add water quality-based limitations to that permit. The additional limitations are to be more stringent than the technology-based limitations and would require the permittee to install additional controls.

Nonpoint sources

Congress exempted some water pollution sources from the point source definition in the 1972 CWA, and was unclear on the status of some other sources. These sources were therefore considered to be nonpoint sources
Nonpoint source pollution
Nonpoint source pollution refers to both water and air pollution from diffuse sources. Nonpoint source water pollution affects a water body from sources such as polluted runoff from agricultural areas draining into a river, or wind-borne debris blowing out to sea. Nonpoint source air pollution...

 that were not subject to the permit program.

Agricultural stormwater discharges and irrigation return flows were specifically exempted from permit requirements. Congress, however, provided support for research, technical and financial assistance programs at the U.S. Department of Agriculture
United States Department of Agriculture
The United States Department of Agriculture is the United States federal executive department responsible for developing and executing U.S. federal government policy on farming, agriculture, and food...

 to improve runoff management practices on farms. See Natural Resources Conservation Service
Natural Resources Conservation Service
The Natural Resources Conservation Service , formerly known as the Soil Conservation Service , is an agency of the United States Department of Agriculture that provides technical assistance to farmers and other private landowners and managers.Its name was changed in 1994 during the Presidency of...


Stormwater is water that originates during precipitation events. It may also be used to apply to water that originates with snowmelt that enters the stormwater system...

Surface runoff
Surface runoff is the water flow that occurs when soil is infiltrated to full capacity and excess water from rain, meltwater, or other sources flows over the land. This is a major component of the water cycle. Runoff that occurs on surfaces before reaching a channel is also called a nonpoint source...

 from industrial sources, municipal storm drains, and other sources were not specifically addressed in the 1972 law. EPA declined to include urban runoff
Urban runoff
Urban runoff is surface runoff of rainwater created by urbanization. This runoff is a major source of water pollution in many parts of the United States and other urban communities worldwide.-Overview:...

 and industrial stormwater discharges in the NPDES program and consequently was sued by an environmental group. The courts ruled that stormwater discharges must be covered by the permit program.

A growing body of water research during the late 1970s and 1980s indicated that stormwater runoff was a significant cause of water quality impairment in many parts of the U.S. In the early 1980s EPA conducted the Nationwide Urban Runoff Program (NURP) to document the extent of the urban stormwater problem. The agency began to develop regulations for stormwater permit coverage, but encountered resistance from industry and municipalities, and there were additional rounds of litigation. This litigation was pending when Congress considered further amendments to the Act in 1986.

In the Water Quality Act of 1987 (1987 WQA) Congress responded to the stormwater problem by requiring that industrial stormwater dischargers and municipal separate storm sewer systems (often called "MS4") obtain NPDES permits, by specific deadlines. The permit exemption for agricultural discharges continued, but Congress created a nonpoint source pollution demonstration grant program at EPA to expand the research and development of nonpoint controls and management practices.

To combat nonpoint source pollution, EPA initiated numerous programs and grants to aid the public in improving their local water quality. These programs are described at an EPA website, Watershed Central
Watershed Central
Watershed Central is an Environmental Protection Agency website developed to organize information and tools relevant to watershed management from across the country....


Financing of pollution controls

Congress created a major public works financing program for municipal sewage treatment in the 1972 CWA. A system of grants
Grant (money)
Grants are funds disbursed by one party , often a Government Department, Corporation, Foundation or Trust, to a recipient, often a nonprofit entity, educational institution, business or an individual. In order to receive a grant, some form of "Grant Writing" often referred to as either a proposal...

 for construction of municipal sewage treatment
Sewage treatment
Sewage treatment, or domestic wastewater treatment, is the process of removing contaminants from wastewater and household sewage, both runoff and domestic. It includes physical, chemical, and biological processes to remove physical, chemical and biological contaminants...

 plants was authorized and funded in Title II. In the initial program the federal portion of each grant was up to 75 percent of a facility's capital cost
Capital cost
Capital costs are costs incurred on the purchase of land, buildings, construction and equipment to be used in the production of goods or the rendering of services, in other words, the total cost needed to bring a project to a commercially operable status. However, capital costs are not limited to...

, with the remainder financed by the state. In subsequent amendments Congress reduced the federal proportion of the grants and in the 1987 WQA transitioned to a revolving loan program in Title VI. Industrial and other private facilities are required to finance their own treatment improvements on the "polluter pays" principle.

Title I - Research and Related Programs

Title I includes a Declaration of Goals and Policy and various grant authorizations for research programs and pollution control programs. Some of the programs authorized by the 1972 law are ongoing (e.g. section 104 research programs, section 106 pollution control programs, section 117 Chesapeake Bay Program
Chesapeake Bay Program
The Chesapeake Bay Program is the regional partnership that directs and conducts the restoration of the Chesapeake Bay in the United States. As a partnership, the Chesapeake Bay Program brings together members of various state, federal, academic and local watershed organizations to build and adopt...

) while other programs no longer receive funds from Congress and have been discontinued.

Title II - Grants for Construction of Treatment Works

To assist municipalities in creating or expanding sewage treatment
Sewage treatment
Sewage treatment, or domestic wastewater treatment, is the process of removing contaminants from wastewater and household sewage, both runoff and domestic. It includes physical, chemical, and biological processes to remove physical, chemical and biological contaminants...

 plants, also known as publicly owned treatment works
Publicly owned treatment works
A publicly owned treatment works is a term used in the United States for a sewage treatment plant that is owned, and usually operated, by a government agency. In the U.S., POTWs are typically owned by local government agencies, and are usually designed to treat domestic sewage and not industrial...

(POTW), Title II established a system of construction grants. This was replaced by the Clean Water State Revolving Fund
Clean Water State Revolving Fund
The Clean Water State Revolving Fund is a self-perpetuating loan assistance authority for water quality improvement projects in the United States. The fund is administered by the Environmental Protection Agency and state agencies...

 in the 1987 WQA. See Title VI.

Discharge permits required

Section 301 of the Act prohibits discharges to waters of the U.S. except with a permit. (See Title IV for discussion of permit programs.)

Technology-Based Standards Program

Under the 1972 act EPA began to issue technology-based standards for municipal and industrial sources.
  • Municipal sewage treatment plants (POTW) are required to meet secondary treatment standards.
  • Effluent guidelines
    Effluent guidelines
    Effluent guidelines are U.S. national standards for wastewater discharges to surface waters and publicly owned treatment works . The United States Environmental Protection Agency issues effluent guidelines for categories of industrial sources of water pollution under Title III of the Clean Water...

    (for existing sources) and New Source Performance Standard
    New Source Performance Standard
    New Source Performance Standards are pollution control standards issued by the United States Environmental Protection Agency . The term is used in the Clean Air Act Extension of 1970 to refer to air pollution emission standards, and in the Clean Water Act referring to standards for discharges...

    (NSPS) are issued for categories of industrial facilities discharging directly to surface waters.
  • Categorical Pretreatment Standards are issued to industrial users (also called "indirect dischargers") contributing wastes to POTW. These standards are developed in conjunction with the effluent guidelines program. As with effluent guidelines and NSPS, pretreatment standards consists of Pretreatment Standards for Existing Sources (PSES) and Pretreatment Standards for New Sources (PSNS). There are 27 categories with pretreatment standards as of 2011.

To date, the effluent guidelines and categorical pretreatment standards regulations have been published for 56 categories and apply to between 35,000 and 45,000 facilities that discharge directly to the nation's waters. These regulations are responsible for preventing the discharge of almost 700 billion pounds of pollutants each year. EPA has updated some categories since their initial promulgation and has added new categories.

The secondary treatment standards for POTWs and the effluent guidelines are implemented through NPDES permits. (See Title IV.) The categorical pretreatment standards are typically implemented by POTWs through permits that they issue to their industrial users.

Water Quality Standards Program

Water quality standards (WQS) are risk-based (also called hazard-based) requirements which set site-specific allowable pollutant levels for individual water bodies, such as rivers, lakes, streams and wetlands. States set WQS by designating uses for the water body (e.g., recreation, water supply, aquatic life, agriculture) and applying water quality criteria (numeric pollutant concentrations and narrative requirements) to protect the designated uses. An antidegradation policy is also issued by each state to maintain and protect existing uses and high quality waters.

Water bodies that do not meet applicable water quality standards with technology-based controls alone are placed on the section 303(d) list of water bodies not meeting standards. Water bodies on the 303(d) list require development of a Total Maximum Daily Load
Total Maximum Daily Load
A Total Maximum Daily Load is a regulatory term in the U.S. Clean Water Act, describing a value of the maximum amount of a pollutant that a body of water can receive while still meeting water quality standards...

 (TMDL). A TMDL is a calculation of the maximum amount of a pollutant that a water body can receive and still meet WQS. The TMDL is determined after study of the specific properties of the water body and the pollutant sources that contribute to the non-compliant status. Generally, the TMDL determines load based on a Waste Load Allocation (WLA), Load Allocation (LA), and Margin of Safety (MOS) Once the TMDL assessment is completed and the maximum pollutant loading capacity defined, an implementation plan is developed that outlines the measures needed to reduce pollutant loading to the non-compliant water body, and bring it into compliance. Over 60,000 TMDLs are proposed or in development for U.S. waters in the next decade and a half.

Following the issuance of a TMDL for a water body, implementation of the requirements involves modification to NPDES permits for facilities discharging to the water body to meet the WLA allocated to the water body (see Title IV).

As of 2007, approximately half of the rivers, lakes, and bays under EPA oversight were not safe enough for fishing and swimming. The development of WQS and TMDL is a complex process, both scientifically and legally, and it is a resource-intensive process for state agencies.

National Water Quality Inventory

Section 305(b) requires EPA and the states to compile a biennial Report to Congress on the nation's water quality
Water quality
Water quality is the physical, chemical and biological characteristics of water. It is a measure of the condition of water relative to the requirements of one or more biotic species and or to any human need or purpose. It is most frequently used by reference to a set of standards against which...



Under section 309, EPA can issue administrative orders against violators, and seek civil or criminal penalties when necessary.
  • For a first offense of criminal negligence, the minimum fine is $2,500, with a maximum of $25,000 fine per day of violation. A violator may also receive up to a year in jail. On a second offense, a maximum fine of $50,000 per day may be issued.
  • For a knowing endangerment violation, i.e. placing another person in imminent danger of death or serious bodily injury, a fine may be issued up to $250,000 and/or imprisonment up to 15 years for an individual, or up to $1,000,000 for an organization.

States that are authorized by EPA to administer the NPDES program must have authority to enforce permit requirements under their respective state laws.

Federal facilities

Military bases, national parks and other federal facilities must comply with CWA provisions.

Thermal pollution

Section 316 requires standards for thermal pollution
Thermal pollution
Thermal pollution is the degradation of water quality by any process that changes ambient water temperature.A common cause of thermal pollution is the use of water as a coolant by power plants and industrial manufacturers...

 discharges, as well as standards for cooling water intake structures. These standards are applicable to power plants and other industrial facilities.

Nonpoint Source Management Program

The 1987 amendments created the Nonpoint Source
Nonpoint source pollution
Nonpoint source pollution refers to both water and air pollution from diffuse sources. Nonpoint source water pollution affects a water body from sources such as polluted runoff from agricultural areas draining into a river, or wind-borne debris blowing out to sea. Nonpoint source air pollution...

 Management Program under CWA section 319. This program provides grants to states, territories and Indian tribes to support demonstration projects, technology transfer
Technology transfer
Technology Transfer, also called Transfer of Technology and Technology Commercialisation, is the process of skill transferring, knowledge, technologies, methods of manufacturing, samples of manufacturing and facilities among governments or universities and other institutions to ensure that...

, education, training, technical assistance and related activities designed to reduce nonpoint source pollution. Grant funding for the program averaged $210 million annually for Fiscal Years 2004 through 2008.

State certification of compliance

States are required to certify that discharges authorized by federal permits will not violate the state's water quality standards.

NPDES permits for point sources

The NPDES permit program is authorized by CWA section 402. The initial permits issued in the 1970s and early 1980s focused on POTWs and industrial wastewater—typically "process" wastewater and cooling water where applicable, and in some cases, industrial stormwater. The 1987 WQA expanded the program to cover stormwater
Stormwater is water that originates during precipitation events. It may also be used to apply to water that originates with snowmelt that enters the stormwater system...

 discharges explicitly, both from municipal separate storm sewer systems (MS4) and industrial sources. The MS4 NPDES permits require regulated municipalities to use Best Management Practices
Best management practice for water pollution
Best Management Practices is a term used in the United States and Canada to describe a type of water pollution control. Historically the term has referred to auxiliary pollution controls in the fields of industrial wastewater control and municipal sewage control, while in stormwater management ...

 to reduce pollutants to the "Maximum Extent Practicable."

Non-stormwater permits typically include numeric effluent limitations for specific pollutants. A numeric limitation quantifies the maximum pollutant load or concentration allowed in the discharge, e.g. 30 mg/L of biochemical oxygen demand
Biochemical oxygen demand
Biochemical oxygen demand or B.O.D. is the amount of dissolved oxygen needed by aerobic biological organisms in a body of water to break down organic material present in a given water sample at certain temperature over a specific time period. The term also refers to a chemical procedure for...

. Exceeding a numeric limitation constitutes a violation of the permit, and the discharger is subject to fines as laid out in section 309. Facilities must periodically monitor their effluent (i.e. collect and analyze wastewater
Wastewater is any water that has been adversely affected in quality by anthropogenic influence. It comprises liquid waste discharged by domestic residences, commercial properties, industry, and/or agriculture and can encompass a wide range of potential contaminants and concentrations...

 samples), and submit Discharge Monitoring Report
Discharge Monitoring Report
A Discharge Monitoring Report is a United States regulatory term for a periodic water pollution report prepared by industries, municipalities and other facilities discharging to surface waters...

s to the appropriate agency, to demonstrate compliance. Stormwater permits typically require facilities to prepare a Stormwater Pollution Prevention Plan and implement best management practices, but do not specify numeric effluent limits and may not include regular monitoring requirements. Some permits cover both stormwater and non-stormwater discharges. NPDES permits must be reissued every five years. Permit agencies (EPA, states, tribes) must provide notice to the public of pending permits and provide an opportunity for public comment.

As of 2001, over 400,000 facilities were subject to NPDES permit requirements.

Dredge and Fill Exemptions

After passage of the CWA in 1972, a controversy arose as to its application to agriculture and certain other activities. The Act was interpreted by some to place restrictions on virtually all placement of dredged materials in wetlands and other waters of the United States, raising concern that the federal government was about to place all agricultural activities under the jurisdiction of the U.S. Army Corps of Engineers
United States Army Corps of Engineers
The United States Army Corps of Engineers is a federal agency and a major Army command made up of some 38,000 civilian and military personnel, making it the world's largest public engineering, design and construction management agency...

 (USACE). For opponents of the Act, section 404 had, as a result of this concern, become a symbol of dramatic over-regulation. When Congress considered the 1977 CWA Amendments, a significant issue was to assure that certain agricultural activities and other selected activities, could continue without the government’s supervision—in other words, completely outside the regulatory or permit jurisdiction of any federal agency.

The 1977 amendments included a set of six section 404 exemptions. For example, totally new activities such as construction of farm roads, Sec. 1344(f)(1)(E), construction of farm or stock ponds or irrigation ditches, and minor agricultural drainage, Sec. 1344(f)(1)(A), all are exempted by Statute. Section 1344(f)(1)(C), which exempts discharge of dredged material “for the purpose of. . . the maintenance of drainage ditches.” All of these exemptions were envisioned to be self-executing, that is not technically requiring an administrative no-jurisdiction determination. One such example was the maintenance of agricultural drainage ditches. Throughout the hearing process, Congressmen of every environmental persuasion repeatedly stated that the over $5 Billion invested in drainage facilities could be maintained without government regulation of any kind. Senator Edmund Muskie
Edmund Muskie
Edmund Sixtus "Ed" Muskie was an American politician from Rumford, Maine. He served as Governor of Maine from 1955 to 1959, as a member of the United States Senate from 1959 to 1980, and as Secretary of State under Jimmy Carter from 1980 to 1981...

, for example, explained that exempt activities such as agricultural drainage would be entirely unregulated. Other exemptions were granted as well, including exemptions for normal farming activities.

Importance of No-Jurisdiction Determinations

Despite the fact that Congress envisioned a set of self-executing exemptions, it has become common for landowners to seek no-jurisdiction determinations from the USACE. A landowner who intends to make substantial investments in acquisition or improvement of land might lawfully proceed with exempt activity, a permit not being required. The problem is that should the activity later be determined not exempt, the agency will issue a cease and desist order. Obtaining an advanced ruling provides some level of comfort that the activities will have been deemed conducted in good faith.

Recapture of Exemptions

Because some of the six exemptions involved new activities, such as minor drainage and silviculture
Silviculture is the practice of controlling the establishment, growth, composition, health, and quality of forests to meet diverse needs and values. The name comes from the Latin silvi- + culture...

 (the clearing of forests by the timber industry), Congress recognized the need to impose some limitations on exemptions. Consequently, Congress placed the so-called recapture clause limitation on these new project exemptions. Under section 404(f)(2), such new projects would be deprived of their exemption if all of the following three characteristics could be shown:
  1. A discharge of dredge or fill material in the navigable waters of the United States;
  2. The discharge is incidental to an activity having as its purpose the bringing of an area of navigable waters into a use to which it was not previously subject, and
  3. Where the flow or circulation of navigable waters may be impaired or the reach of such waters may be reduced.

To remove the exemption, all of these requirements must be fulfilled—the discharge, the project purpose of bringing an area into a use to which it was not previously subject, and the impairment or reduction of navigable waters.

Dredge and fill permits (wetlands)

Under sections 301 and 502 of the Clean Water Act, any discharge of dredged or fill materials into "waters of the United States," including wetlands, is forbidden unless authorized by a permit issued by the USACE pursuant to section 404. Essentially, all discharges of fill or dredged material affecting the bottom elevation of a jurisdictional water of the U.S. require a permit from USACE. These permits are an essential part of protecting wetlands, which are often filled by land developers. Wetlands are vital to the ecosystem in filtering streams and rivers and providing habitat for wildlife.

Mountaintop removal mining requires a section 404 permit when soil and rock from the mining operation is placed in streams and wetlands (commonly called a "valley fill"). Pollutant discharges from valley fills to streams also requires an NPDES permit.

There are two main types of wetlands permits: general permits and individual permits. General permits change periodically and cover broad categories of activities, and require the user to comply with all stated conditions. General permits (such as the Nationwide Permits) are issued for fill activities that will result in minimal adverse effects to the environment. Individual permits are utilized for actions that are not addressed by a general permit, or that do not meet the conditions of a General Permit. In addition, individual permits typically require more analysis than do the general permits, and usually require much more time to prepare the application and to process the permit.

When the USACE processes an application for an Individual Permit, it must publish/issue a public notice (typically in the Federal Register
Federal Register
The Federal Register , abbreviated FR, or sometimes Fed. Reg.) is the official journal of the federal government of the United States that contains most routine publications and public notices of government agencies...

) describing the proposed action described in the permit application. The public notice must be issued no later than fifteen days after the Corps determines the application to be complete. Although the Corps District Engineer makes the decision to grant a permit, the EPA Administrator may veto a permit if it is not reasonable. Before making such a decision, however, EPA must consult with the USACE. A wetlands permit expires after five years.

When a state wants a permit, they make sure that all other states being affected are aware they will be sent a copy of the request and the state is able to write a recommendation. A state permit also expires after five years.

POTW Biosolids Management Program

The 1987 WQA created a program for management of biosolids (sludge) generated by POTWs.

Citizen suits

Any U.S. citizen may file a citizen suit
Citizen suit
In the U.S., a citizen suit is a lawsuit by a private citizen to enforce a statute. Citizen suits are particularly common in the field of environmental law....

 against any person who has allegedly violated an effluent limitation regulation or against the EPA Administrator if the EPA Administrator failed to perform any non-discretionary act or duty required by the CWA.

Employee protection

The CWA includes an employee ("whistleblower
A whistleblower is a person who tells the public or someone in authority about alleged dishonest or illegal activities occurring in a government department, a public or private organization, or a company...

") protection provision. Employees in the U.S. who believe they were fired or suffered adverse action related to enforcement of the CWA may file a written complaint with the Occupational Safety and Health Administration
Occupational Safety and Health Administration
The United States Occupational Safety and Health Administration is an agency of the United States Department of Labor. It was created by Congress of the United States under the Occupational Safety and Health Act, signed by President Richard M. Nixon, on December 29, 1970...


Title VI - State Water Pollution Control Revolving Funds

The Clean Water State Revolving Fund
Clean Water State Revolving Fund
The Clean Water State Revolving Fund is a self-perpetuating loan assistance authority for water quality improvement projects in the United States. The fund is administered by the Environmental Protection Agency and state agencies...

 (CWSRF) program was authorized by the 1987 WQA. This replaced the municipal construction grants program, which was authorized in the 1972 law under Title II. In the CWSRF, federal funds are provided to the states and Puerto Rico to capitalize their respective revolving funds, which are used to provide financial assistance (loans or grants) to local governments for wastewater treatment, nonpoint source pollution control and estuary protection.

The fund provides loans to municipalities at lower-than-market rates. As of 2007 the average rate was 2.1 percent nationwide, compared to an average market rate of 4.3 percent. In 2006, CWSRF assistance totaling $5 billion was provided to 1,858 local projects across the country.

Earlier legislation

During the 1880s and 1890s, Congress directed USACE to prevent dumping and filling in the nation's harbors, and the program was vigorously enforced. Congress first addressed water pollution issues in the Rivers and Harbors Act of 1899
Rivers and Harbors Act of 1899
The Rivers and Harbors Appropriation Act of 1899 is the oldest federal environmental law in the United States. The Act makes it a misdemeanor to discharge refuse matter of any kind into the navigable waters, or tributaries thereof, of the United States without a permit; this specific provision is...

, giving the Corps the authority to regulate most kinds of obstructions to navigation, including hazards resulting from effluents. Portions of this law remain in effect, including Section 13, the so-called Refuse Act
Refuse Act
The Refuse Act is a United States federal statute governing use of waterways. The Act, a section of the Rivers and Harbors Act of 1899, prohibited "dumping of refuse" into navigable waters, except by permit.-Implementation history:...

. In 1910, USACE used the act to object to a proposed sewer in New York City, but the judge ruled that pollution control was a matter left to the states alone. Speaking to the 1911 National Rivers and Harbors Congress, the chief of the Corps, Brigadier General William H. Bixby, suggested that modern treatment facilities and prohibitions on dumping "should either be made compulsory or at least encouraged everywhere in the United States."

Some sections of the 1899 act have been superseded by various amendments, including the 1972 CWA, while other notable legislative predecessors include:
  • Public Health Service Act of 1912. Expanded the mission of the United States Public Health Service
    United States Public Health Service
    The Public Health Service Act of 1944 structured the United States Public Health Service as the primary division of the Department of Health, Education and Welfare , which later became the United States Department of Health and Human Services. The PHS comprises all Agency Divisions of Health and...

     to study problems of sanitation, sewage and pollution.
  • Oil Pollution Act of 1924. Prohibited the intentional discharge of fuel oil into tidal waters, authorizing USACE to apprehend violators. This was repealed by the 1972 CWA, reducing the Corps' role in pollution control to the discharge of dredged or fill material.
  • Federal Water Pollution Control Act of 1948. Created a comprehensive set of water quality programs that also provided some financing for state and local governments. Enforcement was limited to interstate waters. The Public Health Service provided financial and technical assistance.
  • Water Quality Act of 1965. Required states to issue water quality standards for interstate waters, and authorized the newly created Federal Water Pollution Control Administration to set standards where states failed to do so.

Case law

  • United States v. Riverside Bayview Homes, Inc. (1985). The Supreme Court upheld the Act's coverage in regulating wetlands that intermingle with navigable waters. This ruling was revised by the 2006 Rapanos decision.
  • Edward Hanousek, Jr v. United States
    Edward Hanousek, Jr v. United States
    Hanousek v. United States, 176 F.3d 1116, , was a decision by the United States Court of Appeals for the Ninth Circuit, which held that ordinary negligence was the legal standard for criminal negligence under the Clean Water Act....

    (9th Cir. Court of Appeals, 1996; certiorari
    Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...

     denied, 2000). In 1994, during rock removal operations, a backhoe operator accidentally struck a petroleum pipeline near the railroad tracks. The operator’s mistake caused the pipeline to rupture and spill between 1,000 and 5,000 gallons of heating oil into the Skagway river. Despite not being present at the scene during operations White Pass and Yukon Route
    White Pass and Yukon Route
    The White Pass and Yukon Route is a Canadian and U.S. Class II narrow gauge railroad linking the port of Skagway, Alaska, with Whitehorse, the capital of Yukon. An isolated system, it has no direct connection to any other railroad. Equipment, freight and passengers are ferried by ship through the...

     Roadmaster Edward Hanousek, Jr. and President Paul Taylor were both held responsible for the spill and convicted.
  • Solid Waste Agency of North Cook County (SWANCC) v. United States Army Corps of Engineers (2001), possibly denying the CWA's hold in isolated intrastate waters and certainly denying the validity of the 1986 "Migratory Bird Rule
    Migratory bird rule
    The migratory bird rule, adopted by the United States Army Corps of Engineers and the Environmental Protection Agency asserted that the Clean Water Act covers regulation of isolated waters "which are or would be used as habitat by.....

  • S. D. Warren Co. v. Maine Bd. of Env. Protection
    S. D. Warren Co. v. Maine Bd. of Env. Protection
    S. D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370 , was a case decided by the Supreme Court of the United States involving licensing requirements under the Clean Water Act...

    (2006). The Court ruled that section 401 state certification requirements apply to hydroelectric dams, which are federally licensed, where the dams cause a discharge into navigable waters.
  • Rapanos v. United States
    Rapanos v. United States
    Rapanos v. United States, 547 U.S. 715 , was a United States Supreme Court case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act. It was the first major environmental case heard by the newly appointed Chief Justice, John Roberts and Associate Justice, Samuel...

    (2006). The Supreme Court questioned federal jurisdiction as it attempted to define the Act's use of the terms "navigable waters" and "waters of the United States." The Court rejected the position of the USACE that its authority over water was essentially limitless. Though the case resulted in no binding case law
    Case law
    In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...

    , the Court suggested a narrowing of federal jurisdiction and implied the federal government needed a more substantial link between navigable federal waters and wetlands than it had been using, but held onto the "significant nexus" test.

Recent developments

Representative Frank Pallone
Frank Pallone
Frank Pallone, Jr. is the U.S. Representative for , serving since 1993. He is a member of the Democratic Party. He previously represented the 3rd district from 1988 to 1993.-Early life, education, and early political career:...

 introduced , the Clean Water Protection Act
Clean Water Protection Act
The Clean Water Protection Act is a bill introduced in the 111th United States Congress via the House of Representatives Subcommittee on Water Resources and Environment, of the Committee on Transportation and Infrastructure...

, on March 4, 2009. The bill would amend the CWA by redefining the term, "fill material" to exclude "any pollutant discharged into the water primarily to dispose of waste." This amendment is intended to restrict the practice of mountaintop removal mining.

Senator Russell Feingold introduced , the "Clean Water Restoration Act," on April 2, 2009, to amend the CWA and clarify the jurisdiction of "waters of the United States." The intent of the bill is to restore protections for rivers, streams and wetlands that may be subject to question due to the recent Supreme Court rulings in SWANCC and Rapanos.

On December 3, 2009, Representative Donna Edwards
Donna Edwards
Donna F. Edwards is the U.S. Representative for , serving since a special election in 2008. She is a member of the Democratic Party...

 introduced , the "Green Infrastructure for Clean Water Act of 2009." The bill would create "Centers of Excellence" for green infrastructure
Green infrastructure
Green Infrastructure is a concept originating in the United States in the mid-1990s that highlights the importance of the natural environment in decisions about land use planning. In particular there is an emphasis on the "life support" functions provided by a network of natural ecosystems, with an...

 (GI) research, establish a GI program at EPA and authorize issuance of grants for GI projects. GI projects are designed to improve water quality through better management of stormwater runoff.

Representative James Oberstar introduced , "America's Commitment to Clean Water Act," on April 21, 2010. The bill would restore the definition of "waters of the United States" to that in place before the SWANCC and Rapanos court decisions.

See also

  • Great Lakes Areas of Concern
    Great Lakes Areas of Concern
    Great Lakes Areas of Concern are designated geographic areas within the Great Lakes Basin that show severe environmental degradation. There are a total of 43 areas of concern within the Great Lakes, 26 being in the U.S., 17 in Canada, with five shared by the two countries.The Great Lakes, the...

  • Ocean Dumping Act
  • Water supply and sanitation in the United States
    Water supply and sanitation in the United States
    Issues that affect water supply and sanitation in the United States include water scarcity, pollution, a backlog of investment, concerns about the affordability of water for the poorest, and a rapidly retiring workforce...

External links

CWA text and analysis

EPA programs

Research programs
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