The Clean Water Act is a U.S. federal law that regulates the discharge of pollutants into the nation’s surface waters, including lakes, rivers, streams, wetlands, and coastal areas. Passed in 1972 and amended in 1977 and 1987, the Clean Water Act was originally known as the Federal Water Pollution Control Act. The Clean Water Act is administered by the U.S. Environmental Protection Agency (EPA), which sets water quality standards, handles enforcement, and helps state and local governments develop their own pollution control plans.
The original goal of the Clean Water Act was to eliminate the discharge of untreated waste water from municipal and industrial sources and thus make American waterways safe for swimming and fishing (the use of surface water for drinking purposes is covered under separate legislation, the Safe Drinking Water Act). Toward this end, the federal government provided billions of dollars in grants to finance the building of sewage treatment facilities around the country. The Clean Water Act also required businesses to apply for federal permits to discharge pollutants into waterways, as well as to reduce the amount of their discharges over time.
The Clean Water Act has been credited with significantly reducing the amount of pollution that enters the nation’s waterways from “point sources,” or municipal and industrial discharges. As of 1998, 60 percent of American lakes, rivers, and shoreline were considered clean enough for swimming and fishing. “In the years following passage of the Clean Water Act, the EPA largely succeeded in stemming the ‘point source’ discharges of big industrial and municipal offenders, whose pipes spewed chemicals directly into oceans, rivers, lakes, and streams,” wrote Jeff Glasser and Kenneth T. Walsh in U.S. News & World Report. “It has become clear, however, that ‘point source’ pollution is only part of the problem.”
By the late 1990s, the EPA had changed its focus under the Clean Water Act to emphasize eliminating nonpoint source pollution, like chemicals from agricultural runoff or erosion from logging or construction activities. In a 2000 report to Congress, the EPA cited these diffuse sources of pollution as the top factors making the remaining 40 percent of the nation’s waterways too polluted for swimming or fishing. As scientists increasingly recognized the value of wetlands in filtering out pollution, the EPA also began to emphasize wetlands protection under the Clean Water Act. Businesses must be aware of the expanding applications of the Clean Water Act. The law can affect not only discharges of pollution from factory pipes, but also incidental pollution resulting from the activities of smaller enterprises, such as residential development or the construction of a golf course or office building.
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Provisions Create Controversy
Under the Clean Water Act, the EPA sets national water quality criteria and specifies levels of various chemical pollutants that are allowable under these criteria. The discharge of regulated chemicals into surface waters is controlled by the National Pollutant Discharge Elimination System (NPDES), which requires polluters to obtain federal permits for every chemical they discharge. The permits, which can be issued by the EPA or by state government agencies, gives a business or municipality the right to discharge a limited amount of a specific pollutant. The NPDES has been criticized by industry groups for issuing ambiguous regulatory policies and causing long delays in granting permits. In 2000, the EPA sought to address these concerns through a number of initiatives designed to streamline the permit process for municipal and industrial discharges of wastewater.
The EPA also took steps toward cleaning up polluted waterways and regulating nonpoint source pollution in 2000. The agency introduced new rules that encouraged individual states to identify dirty waterways and establish standards to help eliminate sources of pollution. The states were required to come up with a maximum amount of pollution that each waterway could absorb. This measurement was known as the Total Maximum Daily Load (TMDL). Then the states had to decide which local landowners or businesses needed to reduce their pollution levels to meet the TMDL. The states were also required to evaluate future development plans near the waterways to make sure they would not increase pollution levels.
It soon became clear that the TMDL program would be very controversial. “At the heart of the controversy is a long-neglected provision of the Clean Water Act that requires states to identify rivers and lakes too polluted to meet water-quality standards for fishing and swimming,” Margaret Kriz explained in National Journal.
Under the watchful eye of the EPA, each state must rank its waterways for cleanup and develop site-specific plans for curbing pollution flowing into the water body.
Some cities and industry groups worried that the new provisions would discourage development along already-polluted waterways and restrict the rights of property owners. Others complained that compliance with the new regulations would be too expensive.
Finally, some people claimed that the new regulations served only to expand the EPA’s influence over state and local government matters. But former EPA director Carol Browner disagreed with this assessment. “There’s been a certain amount of misinformation about this being a top-down, one-size-fits-all approach. That’s not true,” Browner told Kriz. “The TMDL approach is led by the states. They assess the pollution levels of their own waters, and they make the key decisions about reducing pollution in each body of water based on state waterquality standards.”
Another area of controversy involves the regulation of wetlands and the need to obtain federal permits to build on a wetland. Under the provisions of the Clean Water Act, the U.S. Army Corps of Engineers has jurisdiction over navigable waterways and associated wetlands. Two consolidated law suits—Carabelli v. United States Army Corp of Engineers and United States v.
Rapanos—are scheduled to be heard by the U.S.
Supreme Court in the summer of 2006. In each case there is a dispute as to whether a particular wetland falls under the jurisdiction of the Clean Water Act. The ruling in these cases will determine whether and when a nonnavigable and even man-made waterway, such as a ditch or storm-sewer system, can be considered a “navigable water” under the Clean Water Act and thus be subject to federal permitting requirements. These cases are being watched very closely by builders, developers, and municipalities since their outcome will have a bearing on the permitting requirements for all future developments on and/or near wetlands.
As with most regulatory laws, clarifications of the law are ongoing. Businesses involved in any way with more than a limited, non-industrial use of water must follow developments related to the protection of waterways.
See also: Environmental Law and Business