eli summer school clean water act

ELI Summer School

CLEAN WATER ACT

Sean M. Sullivan Nathan Gardner-AndrewsWilliams Mullen NACWA

June 20, 2007

CLEAN WATER ACT

The Act: An Overview of Central Provisions

Recent Developments: Cases

Requirements Applicable to POTWs

OVERVIEW

History

Substantive Provisions

Procedural Features

Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500 (Oct. 18, 1972): Major Features

1. Federal Permit Program ("NPDES")

2. Federal-State Partnership

3. Technology-based standards

4. Water quality standards

5. Massive grants program for POTWs

Clean Water Act of 1977, P.L. 95-217 (Dec. 27, 1977)

Municipal Wastewater Treatment Construction Grant Amendments of 1981, P.L. 97-117 (Dec. 29, 1981)

Water Quality Act of 1987, P.L. 100-4 (Feb. 4, 1987)

History - Major Amendments Since 1972:

Clean Water Act of 1977, P.L. 95-217 (Dec. 27, 1977).

1. Extensive Amendments

2. Toxics: NRDC v. Train Settlement Codified

3. Rewrote deadlines

4. Gave statute its popular name

Municipal Wastewater Treatment Construction Grant Amendments of 1981, P.L. 97-117 (Dec. 29, 1981).


2. Municipal grants program overhaul

3. More money, more uses

Water Quality Act of 1987, P.L. 100-4 (Feb. 4, 1987).


2. Strengthened Enforcement and Penalties

3. Toxic Control Strategies

4. Non-Point source programs

History: Special-purpose amendmentsP.L. 106-457 (2000):

Alternative Water Sources Act of 2000 Lake Pontchartrain Basin Restoration Act of 2000 Long Island Sound Restoration Act Chesapeake Bay Restoration Act of 2000 Beaches Environmental Assessment and Coastal Health

Act of 2000

P.L. 103-431 (1994): Ocean Pollution Reduction ActP.L. 101-596 (1990): Great Lakes Critical Programs

Act of 1990* * * *

P.L. 98-67 (1983): The Virgin Islands Rum Act

History: Trends

Less EPA Discretion

Missed Deadlines Court Orders & Consent Decrees

Increasing Focus on Toxics

Loosening of Municipal Standards

Increasing Penalties

OVERVIEW

History


Procedural Features

Core Provisions: The 3 P’s

Prohibition - § 301

Permits - §§ 402, 404

Penalties - § 309

3 P’s: Prohibition: § 301(a)

Any discharge of pollutants from a point source to navigable waters is prohibited, except as permitted

Discharge:

- any addition of any pollutant to navigable waters from any point

source

- any addition of any pollutant to the contiguous zone or oceanfrom any point source other than vessels

Pollutant:

dredged spoil, solid waste, sewage, garbage, sludge, chemical wastes, biological materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal and agricultural waste discharged into water

Excluded: sewage from vessels or discharges incidental to operation of a

vessel of the Armed Forces

Point source:any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged

Includes: Vessels concentrated animal feeding operations (CAFOs)

Excluded: agricultural stormwater discharges

irrigation return flows

non-point sources

Navigable waters:

waters of the United States, including the territorial seas

Congress sought broadest possible definition under the Commerce Clause, beyond “traditionally navigable” waters.

3 P’s: Permits

National Pollutant Discharge Elimination System (NPDES) - § 402

Federal-State “Partnership”

Federally designed

State administered, Federally supervised

5-year Permits

46 of 55 States have NPDES Programs

4 R’s of NPDES Permits

Restrictions on discharges

Reporting requirements

Reopeners

Revocability

4 R’s: Restrictions on Discharges

Technology-based Effluent Limitations

Effluent Limitation Guidelines (ELG’s), § 304(b)

New Source Performance Standards, § 306

Secondary Treatment Standards

Pretreatment Standards for Indirect Discharges, § 307(b)

Water Quality-based limitations


Technology-based Effluent Limitations

Best Practicable Technology (BPT)

Best Available Technology (BAT)

Best Conventional Technology (BCT)

Best Available Control Technology (“BACT”)

Secondary Treatment for Municipals


Water Quality-based Restrictions

Any more stringent limitation, § 301(b)(1)(C)

Water quality standards, § 303Designated uses

Criteria

Nondegradation

Total maximum Daily Loads (TMDLs), § 303(d)Waste Load Allocations – point sources

Load Allocations – nonpoint sources

4 R’s: Reporting Requirements

Noncompliance – DMR’s

Changes in discharges

Upsets, By-Passes

4 R’s: Reopeners

Change in circumstances

Change in discharge

Change in applicable toxic standards

4 R’s: Revocability

Submission of false or misleading information

Violation of permit

3 P’s: Penalties

Administrative Penalties, § 309(g) Class I: $11,000/$27,500 ($12,000/$31,500) Class II: $11,000/$137,500 ($12,000/$157,500)

Civil Penalties, § 309(d)

Federal district courts $27,500 per day per violation ($31,500)

Federal Civil Penalties Inflation Adjustment Act of 1990, note at 28 U.S.C. § 2461, 40 C.F.R. § 19.4(2000)

67 Fed. Reg. 41343 (June 18, 2002), eff. Aug. 19, 2002.

3 P’s: Criminal PenaltiesNegligent violations

$2,500 to $25,000 fine1-year imprisonment

Knowing violations

$5,000 to $50,000 fine3 years

Knowing endangerment

$250,000/$1,000,000 fine

15 years

Other Programs

Municipal Grants Program

Areawide Planning and Continuing Planning Process, §§ 208, 303(e)

Oil and hazardous substance spills, § 311

State certifications, §401

Ocean discharge criteria, §403

Dredge & Fill Permit Program, § 404

OVERVIEW

History


Procedural Features

Procedural Features

Preclusive judicial review, § 509(b)

Federal-state relationship

Savings Clause, § 510

Citizen Suits, § 505

Clean Water ActAdditional Information

Statute: 33 U.S.C. § 1251 et. seq.

EPA Regulations: 40 C.F.R. Parts 104-140

401-503

EPA: Introduction to the Clean Water Act http://www.epa.gov/watertrain/owa/

Themes for New CWA Cases

What is a Navigable Water?

The Saga of 316(b)

Other NPDES Program Developments

Significant Cases from the Previous Year

United States v. Rapanos – Supreme Court “clarifies” jurisdiction of Corps over wetlands

Significant Cases (cont’d)



The Saga of 316(b)


United States v. Rapanos126 S.Ct. 2208 (2006)

Background – case involves two parcels of land containing wetlands that are “adjacent” to tributary of navigable water

Corps’ statutory jurisdiction extends to “navigable waters,” defined as “waters of the United States”

United States v. Rapanos (cont’d)

Background (cont’d)

Corps interprets its jurisdiction to include:

• Navigable water bodies

• Tributaries to navigable water bodies

• Wetlands adjacent to both



United States v. Riverside Bayview Homes, 474 U.S. 121 (1985)

• Corps has jurisdiction over wetlands adjacent to navigable water bodies because of difficulty in determining where water ends and land begins

• Court reserved issue of Corps’ jurisdiction over wetlands adjacent to tributaries of navigable waters



Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001)

• Isolated, abandoned gravel pit occasionally providing shelter to migratory birds is not “water of the United States”

• Pit had no “significant nexus” to navigable waters

United States v. Rapanos (cont’d)The Decision

5-4 vote to remand case

Plurality Opinion (Scalia) – four votes• Remand to apply proper understanding of

“waters of the United States”

Concurring Opinion (Kennedy)• Remand to apply significant nexus test from

SWANCC

Dissenting Opinion (Stevens) – four votes• Defer to Corps on Chevron grounds

United States v. Rapanos (cont’d)The Plurality Opinion

Scalia, Roberts, Thomas, Alito

Notes Riverside Bayview left open status of wetlands in tributaries to navigable waters

Evaluates whether “waters of the United States” includes intermittently flowing tributaries

• Uses Webster’s Dictionary to define “waters”


The Plurality Opinion (cont’d)

Corps’ jurisdiction over tributary and adjacent wetlands depends on regular water flow

Establishing that tributary empties into navigable water (when flow is present) not enough

United States v. Rapanos (cont’d)Justice Kennedy’s Concurrence

Focuses on whether there is “substantial nexus” between wetland and navigable water

Approach comes from court’s decision in SWANCC

J. Kennedy would have Corps evaluate effect of wetland on water quality in navigable water and base jurisdictional decision on existence of such an effect

United States v. Rapanos (cont’d)Justice Kennedy’s Concurrence (cont’d)

J. Kennedy’s approach rejected by plurality and dissent as unauthorized by the CWA

Effects of J. Kennedy’s Concurrence• Kennedy is deciding vote• If party can satisfy his test and satisfy

either plurality or dissenters, they win• Thus, the substantial nexus test must be

a component of Corps’ jurisdictional analysis

United States v. Rapanos (cont’d)Justice Stevens’ Dissent

Riverside Bayview controls outcome

Defers to Corps’ exercise of jurisdiction on Chevron grounds:• Corps determined wetlands adjacent to

tributaries of navigable waters can affect water quality of navigable waters

• This is reasonable basis for Corps to assume jurisdiction


Justice Stevens’ Dissent (cont’d) Advises the lower courts to find jurisdiction if

either the Plurality test or the Kennedy test is satisfied.

The Aftermath of Rapanos

As expected, the courts have struggled with how to apply the result of the decision.

Several Courts of Appeal have already addressed the issue, including: The First Circuit The Seventh Circuit The Ninth Circuit

The Aftermath of Rapanos (cont’d)

The First Circuit United States v. Johnson, 467 F.3d 56 (1st Cir. 2006).

• Court follows J. Stevens’ advice.

• If a wetland satisfies either the Plurality test or the Kennedy test, it is a water of the United States.

The Seventh Circuit United States v. Gerke Excavating Co., 464 F.3d 723

(7th Cir. 2006). • Court finds, as a practical matter, that the Kennedy test

determines whether a wetland is jurisdictional.


The Ninth Circuit Northern California River Watch v. City of

Healdsburg, 457 F.3d 1023 (9th Cir. 2006).• Court ruled that a pond was a water of the United States

and subject to NPDES permitting jurisdiction.• Decision relies on definition of wetland as being “areas

inundated or saturated by surface or groundwater.”• Court held that the pond was a wetland adjacent to a

navigable water and that the pond had a significant nexus to the navigable water due to the hydrological connection between them.


The Ninth Circuit (cont’d) San Francisco Baykeeper v. Cargill Salt

Division, 481 F.3d 700 (9th Cir. 2007).• Court finds that a pond adjacent to a navigable

water is not a water of the United States.

• Court assumes that the pond is not a wetland because Baykeeper did not assert that it was one.

• Thus, the Court did not engage in the adjacent wetland analysis from City of Healdsburg.


Similar cases are pending before:

The Second Circuit; The Third Circuit; and The Sixth Circuit.



The Saga of 316(b)


The Saga of 316(b)

Statute requires EPA to adopt standards to reduce the number of aquatic organisms that are trapped by cooling water intake structures. EPA must require “the best technology available”

for minimizing environmental impacts (“BTA”).

Rulemaking has been going on since the 1970s.

Currently, a consent decree requires EPA to develop these standards in three phases.

The Saga of 316(b) (cont’d)EPA issued the Phase I rules regarding intake

structures at new facilities in 2001. Most of these rules survived judicial review. But, the Second Circuit rejected the option to do restoration

work in lieu of fully complying with the technical standards.

EPA issued the Phase II rules regarding large, existing power plants in July, 2004. Rules set ranges of mortality reductions and again adopted

the restoration option. Second Circuit remanded most of these rules back to EPA.

The Saga of 316(b) (cont’d)

Riverkeeper, Inc. v. U.S. EPA, 475 F.3d 83 (2d Cir. 2007). Court rejected EPA’s determination of BTA. EPA may consider costs in two ways when determining

BTA:• Whether the costs of a technology be “reasonably borne” by the

industry; and

• Once EPA identifies the level of performance achieved by BTA, it can then consider costs to choose among technologies that achieve similar results.

EPA cannot compare the cost of BTA to the benefits achieved.


Riverkeeper, Inc. v. U.S. EPA, 475 F.3d 83 (2d Cir. 2007) (cont’d). Court found that it was permissible to set

ranges of required mortality reductions.• But, the agency must require permittees to choose

the technology that achieves the greatest reduction in mortality that is “technologically possible.”

Court rejected EPA’s attempt to incorporate the restoration option into the Phase II rules.


Riverkeeper, Inc. v. U.S. EPA, 475 F.3d 83 (2d Cir. 2007) (cont’d). Court also rejected EPA’s Site Specific

Compliance Alternatives• Rejected “Cost-Cost” provision due to lack of

opportunity for public comment.

• Rejected “Cost-Benefit” provision because EPA cannot engage in such an analysis under 316(b).



The Saga of 316(b)


Conclusion

Wastewater Treatment:

Clean Water Act Requirements

. . . Emerging PolicyChallenges

U.S. Wastewater Treatment – Protects Public Health

o16,000 publicly owned treatment works (POTWs)

o100,000 major pumping stations

o600,000 miles sanitary sewers

o200,000 miles storm sewers

o32 billion gallons of wastewater treated daily

Secondary Treatment

√ $61.1 billion appropriated in construction grants program

√ Today, virtually all utilities use secondary treatment; many use advanced

1972 Clean Water Act provided federal grants to create the most advanced public wastewater treatment systems in the world

Secondary Treatment

oA technology-based standard – set out in CWA § 301(b)(1)(B); regulations at 40 CFR 133.102

oBiological process in which bacteria & microorganisms consume organic material

oA multi-phased process of treatment varying by city — primary, secondary, disinfection

Sewer Types & ChallengesCombined Sewers (CSO)o Collect storm & sanitary water; in

approximately 800 US Cities (NE, SE, NW) (40 million people)

o Overflow points activate when system capacity exceeded

Separate Sewers (SSO)o Separately collect storm & sanitary

watero Sanitary water treated at POTWo Storm water released with “best

management practices” treatment (see CWA 402(p))

Sewer Overflow Causeso Inflow & infiltration, blockages (e.g.,

roots, oil), illicit connections, age, wet weather (snow, rains)

CSO/SSO Impacts o http://cfpub.epa.gov/npdes/cso/

cpolicy_report2004.cfm (EPA’s 2004 Report)

o CSO volume has dropped from over 1 trillion gal/yr to 850 billion gal/yr since 1994 (issuance of CSO Policy);

o $6 billion spent by cities on CSO control since 2002;

o Estimates total SSO volume of 3-10 billion gal/yr; and

o Estimates that over the next 20 years, $88 billion needed to control SSOs, $50.6 billion to control CSOs

CSO Law & Regulationo 1994 CSO Policy

o CSO outfalls are “point sources” & require NPDES permits under CWA § 402

o CSOs must meet “9 Minimum Controls” (e.g., # 8–Public Notification )

o CSO cities to develop long term control plans to achieve water quality standards

o CSO Policy codified (§ 402(q)) (2001)

o Many, many CSO guidance documents (http://cfpub.epa.gov/npdes/cso/ guidedocs.cfm)

o Enforcement priority for FY 2005-07

SSO Law & Regulationo SSOs are illegal discharge (EPA

position: can not permit)o 1994-1999: FACA attempts to

reach consensus on a federal program

o 1/3/01: Outgoing Administrator Browner signs SSO Proposal

o 1/24/01: Incoming Administration halts last minute regulatory actions

o Work on SSO program on hold until after peak flow (blending) policy completed

Wastewater Blending December 22, 2005:

EPA proposes peak flow policy based on NACWA/NRDC proposal

A middle ground approach

Year long negotiation 62 substantive

comments filed (compare: 98,000 on 2003 EPA proposal)

Final policy: Fall ‘06

Sewage Sludgeo CWA § 405; 40 CFR Part 503o Any solid, semisolid, liquid residue

removed in treatment of municipal wastewater & domestic sewage

o Management methodso Land application (60%) (40 CFR

503 Subpart B)o Landfill (17%) (40 CFR 503

Subpart C)o Incinerate (20%) (40 CFR 503

Subpart E)o Land/mine reclamation (3%)

o On-going battles at local level over land application

Pretreatmento Prevents industrial,

nondomestic sources from discharging pollutants to POTWs not susceptible to treatment, could interfere, or pass through

o POTWs carry out programs under CWA 307(b); 40 CFR 403.8 et seq.

o Categorical standards for various industries (CWA 307(c); 40 CFR, chapter I, subchapter N, parts 400-471)

o Additional local limits address local water quality issues

Water Securityo Water & wastewater: critical

U.S. infrastructure sector o Information Sharing & Analysis

Centers (ISAC): keep cities informed and distribute secure information

o Among the key security issues:

o Decontamination wastewater

o Chlorine gas storage

o Vulnerability assessments

o Mandates?

o New regulations?

o Prioritization

Paying for Clean Water

Our waterways are at risk because much of our clean water infrastructure is in need of repair and replacement

Many communities use pipes that are over one hundred years old

The American Society of Civil Engineers (ASCE) graded the nation’s water/wastewater infrastructure a D-

According to ASCE, many systems have reached the end of their useful lives

Grants Replaced With Loans

Grants program phased out in 1987, replaced by Clean Water State Revolving Fund (SRF)

Low-interest loans: today’s primary source of federal support

$47 billion provided since 1988; SRF successful in its mission

SRF continues to get cut – down 33%, from $1.35 billion in 2004 to $900 million in FY 2006

Further cuts proposed for 2007 and zeroing out the program completely by 2011

A Case for Greater Federal InvestmentNeeds are large

and unprecedented

Many communities cannot afford the escalating costs alone

Protect federal funding for clean water from budget cuts

Why not water?

HR 4560

Time To Think Creatively

Questions

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Documents

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alternative water sources

useswater quality act

coastal health act

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extensive amendments2