Clean Water Act

Background

Health implications of water pollution

Contamination of drinking water supplies can not only occur in the source water but also in the distribution system. Sources of water contamination include naturally occurring chemicals and minerals (arsenic, radon, uranium), local land use practices (fertilizers, pesticides, concentrated feeding operations), manufacturing processes, and sewer overflows or wastewater releases. Some examples of health implications of water contamination are gastrointestinal illness, reproductive problems, and neurological disorders. Infants, young children, pregnant women, the elderly, and people whose immune systems are compromised because of AIDS, chemotherapy, or transplant medications, may be especially susceptible to illness from some contaminants.

Gastrointestinal disorders include such conditions as constipation, irritable bowel syndrome, hemorrhoids, anal fissures, perianal abscesses, anal fistulas, perianal infections, diverticular diseases, colitis, colon polyps and cancer. In general, children and the elderly are at highest risk for gastrointestinal disease. In a study investigating the association between drinking water quality and gastrointestinal illness in the elderly of Philadelphia, scientists found water quality 9 to 11 days before the visit was negatively associated with hospital admissions for gastrointestinal illness, with an interquartile range increase in turbidity being associated with a 9% increase. The association was stronger in those over 75 than in the population aged 65–74. This example is a small reflection of residents of the United States remain at risk of waterborne gastrointestinal illness under current water treatment practices.

Reproductive problems refer to any illness of the reproductive system. New research by Brunel University and the University of Exeter strengthens the relationship between water pollution and rising male fertility problems. Study identified a group of chemicals that act as antiandrogens in polluted water, which inhibits the function of the male hormone testosterone, reducing male fertility.

Neurological disorders are diseases of the brain, spine and the nerves that connect them. The new study of more than 700 people in California's Central Valley found that those who likely consumed contaminated private well water had a higher rate of Parkinson's. The risk was 90 percent higher for those who had private wells near fields sprayed with widely used insecticides. Unlike water supplies in large cities, private wells are mostly unregulated and are not monitored for contaminants. Many of them exist at shallow depths of less than 20 yards, and some of the crop chemicals used to kill pests and weeds can flow into ground water. Therefore, private wells are likely to contain pesticides, which can attack developing brains (womb or infancy), leading to neurological diseases later in life. A study led by UCLA epidemiology professor Beate Ritz suggests that "people with Parkinson's were more likely to have consumed private well water, and had consumed it on average 4.3 years longer than those who did not have the disease."

Ecosystem impacts of pollution

Water pollution can result in the degradation of aquatic ecosystems—fresh, coastal, and ocean waters. Industrial wastewater discharges may include organic and inorganic chemicals, pharmaceuticals, and heavy metals. Anoxia (oxygen depletion), caused by untreated sewage or industrial discharges can harm fish and other animal populations. Oxygen-depleting substances may be natural materials such as plant matter (e.g. leaves and grass) as well as human-made chemicals. Other natural and anthropogenic substances may cause turbidity (cloudiness) which blocks light and disrupts plant growth, and clogs the gills of some fish species. Nutrient pollution typically causes algal blooms and bacterial growth, resulting in the depletion of dissolved oxygen in water and causing substantial environmental degradation. Thermal pollution, typically caused by discharges of heated water from power plants and factories, decreases the level of dissolved oxygen in ambient water, which can harm fish, amphibians and other aquatic organisms, and reduce biodiversity.

Waters protected

In the 2023 Supreme Court case Sackett v. EPA, the court ruled that only "relatively permanent" waters (such as streams, oceans, rivers and lakes) connected to "navigable waters," and wetlands that are "indistinguishable" from such waters, are covered under the CWA.

The 1972 statute frequently uses the term "navigable waters" but also defines the term as "waters of the United States, including the territorial seas." Regulations interpreting the 1972 law have included water features such as intermittent streams, playa lakes, prairie potholes, sloughs and wetlands as "waters of the United States." In 2006, in Rapanos v. United States, a plurality of the Supreme Court, in a decision authored by Justice Antonin Scalia, 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.'" The concurrent written opinion of Justice Anthony Kennedy defined the term more broadly, including wetlands with a "significant nexus" to traditionally defined navigable waters. Since Rapanos, the EPA and the U.S. Army Corps of Engineers have attempted to define protected waters in the context of Rapanos through the 2015 Clean Water Rule, but this has been highly controversial. The agencies considered the CWA to cover bodies of water with a "significant nexus" with traditional navigable waters, according with Justice Kennedy's definition.

In 2023, the Supreme Court rejected the "significant nexus" test in Sackett v. EPA and established the current definition. This definition "significantly tightens" the test for federal Clean Water Act regulation.

Pollution control strategy

Point sources

The CWA introduced the National Pollutant Discharge Elimination System (NPDES), a permit system for regulating point sources of pollution. Point sources include:

Industrial facilities (including manufacturing, mining, shipping activities, oil and gas extraction and service industries).

Municipal governments (particularly sewage treatment plants) and other government facilities (such as military bases), and

Some agricultural facilities, such as animal feedlots.

Point sources may not discharge pollutants to surface waters without an NPDES permit. The system is managed by EPA in partnership with state environmental agencies. EPA has authorized 47 states 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, the permits are issued by an EPA regional office. (See Titles III and IV.)

In legislation prior to 1972, Congress had authorized states to develop water quality standards, which would limit discharges from facilities based on the characteristics of individual water bodies. However, those standards were to be developed only for interstate waters, and the science to support that process (i.e. data, methodology) was in the early stages of development. That 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.

In the 2020 Supreme Court case County of Maui v. Hawaii Wildlife Fund, the Court validated that some discharges may not be point sources, but are the "functional equivalent of a direct discharge" to navigable waters, such as in this case, the injection of wastewater into groundwater injection wells. As of the time of the case's decision, this was not an area the EPA has established regulations for, and the Court instructed the EPA to work with the courts to define such functional equivalents. The Court wrote that this would likely depend most on the distance the pollutants traveled and time to reach navigable waters, with consideration for the material that the pollutants traveled through, any physical or chemical interaction of the pollutants with components in the ground, and how much of the pollutant makes it to the navigable water. In July 2021, following the Supreme Court decision, the Hawaii District Court determined that the Maui County sewage treatment plant's groundwater injection of sewage was the "functional equivalent of a direct discharge" and required the plant to obtain an NPDES permit.

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. Such sources were therefore considered to be nonpoint sources 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 to improve runoff management practices on farms. See Natural Resources Conservation Service.

Stormwater runoff from industrial sources, municipal storm drains, and other sources were not specifically addressed in the 1972 law. EPA had declined to include urban runoff and industrial stormwater discharges in its initial implementation of the NPDES program, and subsequently the agency was sued by an environmental group. In 1977, the D.C. Circuit Court of Appeals ruled that stormwater discharges must be covered by the permit program.

Research conducted starting in the late 1970s and 1980s indicated that stormwater runoff was a significant cause of water quality impairment in many parts of the US. In the early 1980s, the 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. The litigation was pending when Congress considered further amendments to the CWA in 1986.

In the Water Quality Act of 1987, Congress responded to the stormwater problem by defining industrial stormwater dischargers and municipal separate storm sewer systems (often called "MS4") as point sources, and requiring them to obtain NPDES permits, by specific deadlines. The permit exemption for agricultural discharges continued, but Congress created several programs and grants, including a demonstration grant program at the EPA to expand the research and development of non-point controls and management practices.

Financing of pollution controls

Congress created a major public works financing program for municipal sewage treatment in the 1972 CWA. A system of grants for construction of municipal sewage treatment 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, 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 based on the polluter pays principle.

Congress passed the Water Infrastructure Finance and Innovation Act of 2014 (WIFIA) to provide an expanded credit program for water and wastewater infrastructure projects, with broader eligibility criteria than the previously authorized revolving fund unter CWA Title VI. Pursuant to WIFIA, EPA established its Water Infrastructure and Resiliency Finance Center in 2015 to help local governments and municipal utilities design innovative financing mechanisms, including public–private partnerships. Congress amended the WIFIA program in 2015, 2016 and 2018.

Major statutory provisions

This Act has six titles.

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) 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 building or expanding sewage treatment plants, also known as publicly owned treatment works (POTW), Title II established a system of construction grants. The 1972 CWA provided that federal funds would support 75% of project costs, with state and local funds providing the remaining 25%. In 1981 Congress reduced the federal funding proportion for most grants to 55%.

The construction grant program was replaced by the Clean Water State Revolving Fund in the 1987 WQA (see Title VI), although some local utilities continued to receive "special purpose project grants" directly from Congress, through a budgetary procedure known as "earmarking."

Title III - Standards and enforcement

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. Recreational vessels are exempt from the permit requirements, but vessel operators must implement Best Management Practices to control their discharges. See Regulation of ship pollution in the United States.

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 (for existing sources) and New Source Performance Standards (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 28 categories with pretreatment standards as of 2023.

As of 2023 the effluent guidelines and categorical pretreatment standards regulations have been published for 59 categories and apply to between 35,000 and 45,000 facilities that discharge directly to the nation's waters,129,000 facilities that discharge to POTWs, and construction sites. 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.

Title IV - Permits and licenses

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

The NPDES permits 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 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 to reduce pollutants to the "Maximum Extent Practicable." MS4s serve over 80% of the US population and provide drainage for 4% of the land area.

POTWs with combined sewers are required to comply with the national Combined Sewer Overflow Control Policy, published by EPA in 1994. The policy requires municipalities to make improvements to reduce or eliminate overflow-related pollution problems. About 860 communities in the US have combined sewer systems, serving about 40 million people.

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. 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 samples), and submit Discharge Monitoring Reports 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.

In 2012, EPA estimated that there are over 500,000 stormwater permittees. This number includes permanent facilities such as municipal (POTW, MS4) and industrial plants; and construction sites, which are temporary stormwater dischargers.

Title V - General Provisions

Any U.S. citizen may file a citizen suit against any person who has allegedly violated an effluent standard or limitation (i.e., a provision in an NPDES permit) or against the EPA Administrator if the Administrator failed to perform any non-discretionary act or duty required by the CWA. Citizens may commence citizen suits after giving a 60-day prior notice of the alleged violations to the alleged violator.

The CWA includes an employee ("whistleblower") 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.

Title VI - State Water Pollution Control Revolving Funds

The Clean Water State Revolving Fund (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. The program's average interest rate was 1.4 percent nationwide in 2017, compared to an average market rate of 3.5 percent. In 2017, CWSRF assistance totaling $7.4 billion was provided to 1,484 local projects across the country.

Recent developments

Waters of the United States definition

The CWA's geographic reach (the meaning of the term "navigable waters" or "waters of the United States") has been a source of significant controversy. During the period between the Supreme Court's 2006 fractured decision in Rapanos v. United States, and the Supreme Court's 2023 decision in Sackett v. EPA, multiple unsuccessful attempts at defining "waters of the United States" were made.

After Rapanos, EPA and the Corps issued a guidance document explaining how federal Clean Water Act jurisdiction was to be established. This guidance took some aspects from the Rapanos plurality test and some from Justice Kennedy's significant nexus test. The guidance was widely viewed as ineffective. Recognizing that failure, the presidential administration of Barack Obama issued the Clean Water Rule on June 29, 2015. The Clean Water Rule used the significant nexus test as a starting point to take "a muscular approach that would subject 'the vast majority of the nation's water features' to a case-by-case jurisdictional analysis." The 2015 Clean Water Rule was blocked by the courts within months of its adoption.

The Trump administration then tried rulemaking again, issuing in April 2020 the Navigable Waters Protection Rule. That rule relied primarily on Justice Scalia's test from Rapanos, while also borrowing elements of Justice Kennedy's significant nexus test. This effort at construing Rapanos was also blocked by the courts.

Under the administration of President Joe Biden, USACE and EPA published a revised definition of WOTUS on January 18, 2023, restoring the pre-2015 regulations on the scope of federal jurisdiction over waterways, effective March 20, 2023. This definition asserted authority primarily under Justice Kennedy's "significant nexus" test. The 2023 Rule was blocked by several courts within weeks of its adoption. And on May 25, 2023, this restored WOTUS regulation would again be effectively eliminated after the Supreme Court ruled in the second Sackett v. Environmental Protection Agency case that the Clean Water Act's regulatory authority of waters in the United States was limited to wetlands and waters "with a continuous surface connection" to larger bodies of water, returning to Justice Scalia's definition as outlined in his Rapanos v. United States opinion. Under this decision, the EPA is no longer permitted to regulate water which has been isolated from these larger bodies of water. Some estimates suggest this decision removed EPA control from as much as half of its previously regulated waters. By directly addressing the meaning of "waters of the United States," the Supreme Court in Sackett v. Environmental Protection Agency resolved the decades-long controversy over the CWA's scope.

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, 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. In 1910, USACE used the act to object to a proposed sewer in New York City, but a court 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, 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." Most legal analysts have concluded that the 1899 law did not address environmental impacts from pollution, such as sewage or industrial discharges. However, there were several pollution enforcement cases in the 1960s and 1970s where the law was cited for broader pollution control objectives.

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 to study problems of sanitation, sewage and pollution.

Oil Pollution Act of 1924 prohibited the intentional discharge of fuel oil into tidal waters and provided authorization for 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. 474 U.S. 121 (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 and the 2023 Sackett decision.

Edward Hanousek, Jr v. United States (9th Cir. Court of Appeals, 1996; certiorari 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 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 531 U.S. 159 (2001), denying the CWA's hold in isolated intrastate waters and denying the validity of the 1986 "Migratory Bird Rule."

S. D. Warren Co. v. Maine Bd. of Env. Protection 547 U.S. 370 (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 547 U.S. 715 (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 adopting a definitive standard for federal authority, the Court rejected the government's hydrological connection test, whereby federal jurisdiction would apply to any wetland or water from which water could flow ultimately to a traditional navigable-in-fact water body.

Northwest Environmental Advocates et al. v. EPA (9th Cir. Court of Appeals, 2008). Vessel discharges are subject to NPDES permit requirements. See Ballast water regulation in the United States.

Effects

To date, the water quality goals stated by Congress in the 1972 act have not been achieved by American society:

"to make all U.S. waters fishable and swimmable by 1983;"

"to have zero water pollution discharge by 1985;"

"to prohibit discharge of toxic amounts of toxic pollutants".

More than half of U.S. stream and river miles, about 70 percent of lakes, ponds and reservoirs, and 90 percent of the surveyed ocean and near coastal areas continue to violate water quality standards. The reasons for the impairment vary by location; major sources are agriculture, industry and communities (typically through urban runoff). Some of these pollution sources are difficult to control through national regulatory programs.

However, since the passage of the 1972 act, the levels of pollution in the United States have experienced a dramatic decrease. The law has resulted in much cleaner waterways than before the bill was passed. Agriculture, industry, communities and other sources continue to discharge waste into surface waters nationwide, and many of these waters are drinking water sources. In many watersheds nutrient pollution (excess nitrogen and phosphorus) has become a major problem. It is argued in a 2008 article that the Clean Water Act has made extremely positive contributions to the environment, but is in desperate need of reform to address the pollution problems that remain. A 2015 article acknowledges that the CWA has been effective in controlling point sources, but that it has not been effective with nonpoint sources, and argues that the law must be updated to address the nation's current water quality problems.

A 2017 working article finds that "most types of water pollution declined over the period 1962-2001, though the rate of decrease slowed over time... Our finding of decreases in most pollutants implies that the prevalence of such violations was even greater before the Clean Water Act." Several studies have estimated that the costs of the CWA (including the expenditures for the Title II construction grants program) are higher than the benefits. An EPA study had similar findings, but acknowledged that several kinds of benefits were unmeasured. A 2018 study argues that "available estimates of the costs and benefits of water pollution control programs [including the CWA] are incomplete and do not conclusively determine the net benefits of surface water quality."

Criticism

According to an article published by the National Bureau of Economic Research, the Clean Water Act has been one of the most controversial regulations in the history of the United States. The article suggests that it remains uncertain whether the Clean Water Act has been efficacious, or if there has been any discernible reduction in water pollution. An analysis conducted in the 1990s provided a summary of these uncertainties, “As we approached the twenty-year anniversary of [The Clean Water Act], no comprehensive analysis was available to answer basic questions: How much cleaner are our rivers than they were two decades ago?”

Council of Economic Advisers chair Paul McCracken described the Clean Water Act as an “...inefficient use of national resources that would not produce balancing [of] social and economic benefits”.

According to the Pacific Legal Foundation (PLF), a public interest law firm, the years of broad and ambiguous definitions of "navigable waters" from EPA and the USACE have led to government overreach, regulatory whiplash, and numerous abuses of authority. These concerns were echoed by the Supreme Court when it unanimously rejected EPA and the USACE's use of the "significant nexus test" in the second Sackett decision.