Clean Water ActPrepared by Claudia Copeland, Specialist in Environmental Policy,
CONTENTS FOR THIS SECTION
Table 1. Clean Water Act and Major Amendments
Federal and State Responsibilities
Titles II and VI -- Municipal Wastewater
Permits, Regulations, and EnforcementSelected References
The principal law governing pollution of the nation's surface waters is the Federal Water Pollution Control Act, or Clean Water Act. Originally enacted in 1948, it was totally revised by amendments in 1972 that gave the Act its current shape. The 1972 legislation spelled out ambitious programs for water quality improvement that have since been expanded and are still being implemented by industries and municipalities. Congress made certain fine-tuning amendments in 1977, revised portions of the law in 1981, and enacted further amendments in 1987. Table 1 lists the original law and major amendments to it.
Table 1. Clean Water Act
and Major Amendments
(codified generally as 33 U.S.C. 1251-1387)
|1948||Federal Water Pollution Control Act||P.L. 80-845 (Act of June 30, 1948)|
|1956||Water Pollution Control Act of 1956||P.L. 84-660 (Act of July 9, 1956)|
|1961||Federal Water Pollution Control Act Amendments||P.L. 87-88|
|1965||Water Quality Act of 1965||P.L. 89-234|
|1966||Clean Water Restoration Act||P.L. 89-753|
|1970||Water Quality Improvement Act of 1970||P.L. 91-224, Part I|
|1972||Federal Water Pollution Control Act Amendments||P.L. 92-500|
|1977||Clean Water Act of 1977||P.L. 95-217|
|1981||Municipal Wastewater Treatment Construction Grants Amendments||P.L. 97-117|
|1987||Water Quality Act of 1987||P.L. 100-4|
Authorizations for appropriations to support the law generally expired at the end of fiscal year 1990 (Sept. 30, 1990). Programs did not lapse, however, and Congress has continued to appropriate funds to carry out the Act.
The Federal Water Pollution Control Act of 1948 was the first comprehensive statement of federal interest in clean water programs, and it specifically provided state and local governments with technical assistance funds to address water pollution problems, including research. Water pollution was viewed as primarily a state and local problem, hence, there were no federally required goals, objectives, limits, or even guidelines. When it came to enforcement, federal involvement was strictly limited to matters involving interstate waters and only with the consent of the state in which the pollution originated.
During the latter half of the 1950s and well into the 1960s, water pollution control programs were shaped by four laws which amended the 1948 statute. They dealt largely with federal assistance to municipal dischargers and with federal enforcement programs for all dischargers. During this period, the federal role and federal jurisdiction were gradually extended to include navigable intrastate, as well as interstate, waters. Water quality standards became a feature of the law in 1965, requiring states to set standards for interstate waters that would be used to determine actual pollution levels. By the late 1960s, there was a widespread perception that existing enforcement procedures were too time-consuming and that the water quality standards approach was flawed because of difficulties in linking a particular discharger to violations of stream quality standards. Additionally, there was mounting frustration over the slow pace of pollution cleanup efforts and a suspicion that control technologies were being developed but not applied to the problems. These perceptions and frustrations, along with increased public interest in environmental protection, set the stage for the 1972 amendments.
The 1972 statute did not continue the basic components of previous laws as much as it set up new ones. It set optimistic and ambitious goals, required all municipal and industrial wastewater to be treated before being discharged into waterways, increased federal assistance for municipal treatment plant construction, strengthened and streamlined enforcement, and expanded the federal role while retaining the responsibility of states for day-to-day implementation of the law.
The 1972 legislation declared as its objective the restoration and maintenance of the chemical, physical, and biological integrity of the nation's waters. Two goals also were established: zero discharge of pollutants by 1985 and, as an interim goal and where possible, water quality that is both "fishable" and "swimmable" by mid-1983. While those dates have passed, the goals remain, and efforts to attain the goals continue.
The Clean Water Act (CWA) today consists of two major parts, one being the title II and title VI provisions which authorize federal financial assistance for municipal sewage treatment plant construction. The other is the regulatory requirements, found throughout the Act, that apply to industrial and municipal dischargers.
The Act has been termed a technology-forcing statute because of the rigorous demands placed on those who are regulated by it to achieve higher and higher levels of pollution abatement. Industries were given until July 1, 1977, to install "best practicable control technology" (BPT) to clean up waste discharges. Municipal wastewater treatment plants were required to meet an equivalent goal, termed "secondary treatment," by that date. (Municipalities unable to achieve secondary treatment by that date were allowed to apply for case-by-case extensions up to July 1, 1988. According to EPA, 86% of all cities met the 1988 deadline; the remainder were put under judicial or administrative schedules requiring compliance as soon as possible. However, many cities, especially smaller ones, continue to make investments in building or upgrading facilities needed to achieve secondary treatment.) Cities that discharge wastes into marine waters were eligible for case-by-case waivers of the secondary treatment requirement, where sufficient showing could be made that natural factors provide significant elimination of traditional forms of pollution and that both balanced populations of fish, shellfish, and wildlife and water quality standards would be protected.
The Act required greater pollutant cleanup than BPT by no later than Mar. 31, 1989, generally demanding that industry use the "best available technology" (BAT) that is economically achievable. Compliance extensions of as long as 2 years are available for industrial sources utilizing innovative or alternative technology. Failure to meet statutory deadlines could lead to enforcement action.
Control of toxic pollutant discharges has been a key focus of water quality programs. In addition to the BPT and BAT national standards, states are required to implement control strategies for waters expected to remain polluted by toxic chemicals even after industrial dischargers have installed the best available cleanup technologies required under the law. Development of management programs for these post-BAT pollutant problems was a prominent element in the 1987 amendments and is a key continuing aspect of CWA implementation.
Prior to the 1987 amendments, programs in the Clean Water Act were primarily directed at point source pollution, wastes discharged from discrete and identifiable sources, such as pipes and other outfalls. In contrast, except for general planning activities, little attention had been given to nonpoint source pollution (stormwater runoff from agricultural lands, forests, construction sites, and urban areas), despite estimates that it represents more than 50% of the nation's remaining water pollution problems. As it travels across land surface towards rivers and streams, rainfall and snowmelt runoff picks up pollutants, including sediments, toxic materials, and conventional wastes (e.g., nutrients) that can degrade water quality.
The 1987 amendments authorized measures to address such pollution by directing states to develop and implement nonpoint pollution management programs (section 319 of the Act). States were encouraged to pursue groundwater protection activities as part of their overall nonpoint pollution control efforts. Federal financial assistance was authorized to support demonstration projects and actual control activities. These grants may cover up to 60% of program implementation costs.
While the Act imposes great technological demands, it also recognizes the need for comprehensive research on water quality problems. This is provided throughout the statute, on topics including pollution in the Great Lakes and Chesapeake Bay, in-place toxic pollutants in harbors and navigable waterways, and water pollution resulting from mine drainage. The Act also provides support to train personnel who operate and maintain wastewater treatment facilities.
Federal and State Responsibilities. Under this Act, federal jurisdiction is broad, particularly regarding establishment of national standards or effluent limitations. The Environmental Protection Agency (EPA) issues regulations containing the BPT and BAT effluent standards applicable to categories of industrial sources (such as iron and steel manufacturing, organic chemical manufacturing, petroleum refining, and others). Certain responsibilities are delegated to the states, and this Act, like other environmental laws, embodies a philosophy of federal-state partnership in which the federal government sets the agenda and standards for pollution abatement, while states carry out day-to-day activities of implementation and enforcement. Delegated responsibilities under the Act include authority for qualified states to issue discharge permits to industries and municipalities and to enforce permits. (As of December 1998, 43 states had been delegated the permit program; EPA issues discharge permits in the remaining states.)
In addition, states are responsible for establishing water quality standards, which consist of a designated use (recreation, water supply, industrial, or other), plus a numerical or narrative statement identifying maximum concentrations of various pollutants which would not interfere with the designated use. These standards serve as the backup to federally set technology-based requirements by indicating where additional pollutant controls are needed to achieve the overall goals of the Act.
Titles II and VI -- Municipal Wastewater Treatment Construction
Federal law has authorized grants for planning, design, and construction of municipal sewage treatment facilities since 1956 (Act of July 9, 1956, or P.L. 84-660). Congress greatly expanded this grant is program in 1972. Since that time Congress has authorized $65 billion and appropriated $69 billion in funds to aid wastewater treatment plant construction. Grants are allocated among the states according to a complex statutory formula that combines two factors: state population and an estimate of municipal sewage treatment funding needs derived from a biennial survey conducted by EPA and the states. The most recent estimate, completed in 1996, indicates that $140 billion is needed to build and upgrade needed municipal wastewater treatment plants in the United States and for other types of water quality improvement projects that are eligible for funding under the Act.
Under the title II construction grants program established in 1972, federal grants were made for several types of projects (such as secondary or more stringent treatment and associated sewers) based on a priority list established by the states. Grants were generally available for as much as 55% of total project costs. For projects using innovative or alternative technology (such as reuse or recycling of water), as much as 75% federal funding was allowed. Recipients were responsible for non-federal costs but were not required to repay federal grants.
Policymakers have debated the tension between assisting municipal funding needs, which remain large, and the impact of grant programs such as the Clean Water Act's on federal spending and budget deficits. In the 1987 amendments to the Act, Congress attempted to deal with that apparent conflict by extending federal aid for wastewater treatment construction through fiscal year 1994, yet providing a transition towards full state and local government responsibility for financing after that date. Grants under the traditional title II program were authorized through fiscal year 1990. Under title VI of the Act, grants to capitalize State Water Pollution Control Revolving Funds, or loan programs, were authorized beginning in fiscal year 1989 to replace the title II grants. States contribute matching funds, and under the revolving loan fund concept, monies used for wastewater treatment construction will be repaid to a state, to be available for future construction in other communities. All states now have functioning loan programs, but the shift from federal grants to loans, since fiscal year 1991, has been easier for some than others. The new financing requirements have been a problem for cities (especially small towns) that have difficulty repaying project loans. Statutory authorization for grants to capitalize state loan programs expired in 1994; however, Congress has continued to provide annual appropriations.
Permits, Regulations, and Enforcement
To achieve its objectives, the Act embodies the concept that all discharges into the nation's waters are unlawful, unless specifically authorized by a permit. Thus, more than 65,000 industrial and municipal dischargers must obtain permits from EPA (or qualified states) under the Act's National Pollutant Discharge Elimination System (NPDES) program (authorized in section 402 of the Act). An NPDES permit requires the discharger (source) to attain technology-based effluent limits (BPT or BAT for industry, secondary treatment for municipalities, or more stringent for water quality protection). Permits specify the control technology applicable to each pollutant, the effluent limitations a discharger must meet, and the deadline for compliance. Sources are required to maintain records and to carry out effluent monitoring activities. Permits are issued for 5-year periods and must be renewed thereafter to allow continued discharge.
The NPDES permit incorporates numerical effluent limitations issued by EPA. The initial BPT limitations focused on regulating discharges of conventional pollutants, such as bacteria and oxygen-consuming materials. The more stringent BAT limitations emphasize controlling toxic pollutants -- heavy metals, pesticides, and other organic chemicals. In addition to these limitations applicable to categories of industry, EPA has issued water quality criteria for more than 115 pollutants, including 65 named classes or categories of toxic chemicals, or "priority pollutants." These criteria recommend ambient, or overall, concentration levels for the pollutants and provide guidance to states for establishing water quality standards that will achieve the goals of the Act.
A separate type of permit is required to dispose of dredge or fill material in the nation's waters, including wetlands. Authorized by section 404 of the Act, this permit program is administered by the U.S. Army Corps of Engineers, subject to and using EPA's environmental guidance. Some types of activities are exempt from permit requirements, including certain farming, ranching, and forestry practices which do not alter the use or character of the land; some construction and maintenance; and activities already regulated by states under other provisions of the Act. EPA may delegate certain section 404 permitting responsibility to qualified states and has done so twice (Michigan and New Jersey). Recently, the Act's wetlands permit program has become one of the most controversial parts of the law. Some who wish to develop wetlands maintain that federal regulation intrudes on and impedes private land-use decisions, while environmentalists seek more protection for remaining wetlands and limits on activities that take place in wetlands.
Nonpoint sources of pollution, which EPA and states believe are responsible for the majority of water quality impairments in the nation, are not subject to CWA permits or other regulatory requirements under federal law. They are covered by state programs for the management of runoff, under section 319 of the Act.
Other EPA regulations under the CWA include guidelines on using and disposing of sewage sludge and guidelines for discharging pollutants from land-based sources into the ocean. (A related statute, the Ocean Dumping Act, regulates the intentional disposal of wastes into ocean waters.) EPA also provides guidance on technologies that will achieve BPT, BAT, and other effluent limitations.
The NPDES permit, containing effluent limitations on what may be discharged by a source, is the Act's principal enforcement tool. EPA may issue a compliance order or bring a civil suit in U.S. district court against persons who violate the terms of a permit. The penalty for such a violation can be as much as $25,000 per day. Stiffer penalties are authorized for criminal violations of the Act -- for negligent or knowing violations -- of as much as $50,000 per day, 3 years' imprisonment, or both. A fine of as much as $250,000, 15 years in prison, or both, is authorized for 'knowing endangerment' -- violations that knowingly place another person in imminent danger of death or serious bodily injury. Finally, EPA is authorized to assess civil penalties administratively for certain well-documented violations of the law. These civil and criminal enforcement provisions are contained in section 309 of the Act. EPA, working with the Army Corps of Engineers, also has responsibility for enforcing against entities who engage in activities that destroy or alter wetlands.
While the CWA addresses federal enforcement, the majority of actions taken to enforce the law are undertaken by states, both because states issue the majority of permits to dischargers and because the federal government lacks the resources for day-to-day monitoring and enforcement. Like most other federal environmental laws, CWA enforcement is shared by EPA and states, with states having primary responsibility. However, EPA has oversight of state enforcement and retains the right to bring a direct action where it believes that a state has failed to take timely and appropriate action or where a state or local agency requests EPA involvement. Finally, the federal government acts to enforce against criminal violations of the federal law.
In addition, individuals may bring a citizen suit in U.S. district court against persons who violate a prescribed effluent standard or limitation. Individuals also may bring citizen suits against the Administrator of EPA or equivalent state official (where program responsibility has been delegated to the state) for failure to carry out a nondiscretionary duty under the Act.
Dubrowski, Fran. "Crossing the Finish Line." The Environmental Forum. July/August 1997. pp. 28-37.
Loeb, Penny. "Very Troubled Waters." U.S. News & World Report, vol. 125, no. 12. Sept. 28, 1998. pp. 39, 41-42.
Nichols, Alan B. "It's Clear, U.S. Waters Have Improved." Water Environment and Technology. October 1992. pp. 44-50.
U.S. Environmental Protection Agency. Office of Water. Environmental Indicators of Water Quality in the United States. EPA 841-R-96-002. June 1996. 30 p.
---- The Quality of Our Nation's Water: 1996. Executive Summary of the National Water Quality Inventory: 1996 Report to Congress. EPA 841-S-97-001. April 1998. 197 p.