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Clean Water Act

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This article is part of the Water portal on SourceWatch.

The Clear Water Act (CWA) "establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters," according to the U.S. Environmental Protection Agency (EPA). Its basis is the 1948 Federal Water Pollution Control Act, which was expanded in 1972 and became known as the "Clean Water Act" in 1977, after the passage of amendments. [1]

"The CWA made it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained," explains the EPA website. "EPA's National Pollutant Discharge Elimination System (NPDES) permit program controls discharges. Point sources are discrete conveyances such as pipes or man-made ditches. Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters." [1]

Contents

Issues

Application to power plants

On April 1, 2009, the U.S. Supreme Court ruled in a series of cases -- Entergy v. EPA (07-588), PSEG Fossil LLC v. Riverkeeper Inc. (07-589) and Utility Water Act Group v. Riverkeeper Inc. (07-597) -- that the EPA may rely on "cost-benefit analysis in setting the national performance standards," when applying the CWA to power plant cooling systems. [2]

The CWA requires "power plants that use at least 50 million gallons of water a day to generate steam for electricity" to use the "best technology available for minimizing adverse environmental impact" cooling water intake structures. Justice Antonin Scalia wrote in the majority opinion that the CWA wording "'best technology available,' even with the added specification 'for minimizing adverse environmental impact,' does not unambiguously preclude cost-benefit analysis." [3] Legal Times called the ruling a "pro-business decision," [4] but environmental groups pointed out that the ruling allowed, but did not mandate, that the EPA include a cost-benefit analysis. The ruling stated that, under the CWA, the EPA may require power plants to use "the technology that achieves the greatest reduction in adverse environmental impacts at a cost that can reasonably be borne by the industry." [3]

The issue was relevant to older power plants. Newer plants are designed with closed-cooling systems that reduce the rate of killing small aquatic creatures by 98 percent, but "it is extremely costly to implement such systems at older plants" -- on the order of $3.5 billion annually. Less expensive cooling-system upgrades "would reduce the loss [of aquatic life] by 80 to 95 percent," reported the Washington Post. [5]

Application to mountaintop removal mining

On March 4, 2009, Representative Frank Pallone introduced H.R.1310, also known as the Clean Water Protection Act. The bill would amend the CWA, "to clarify that fill material" -- which "replaces portions of the waters of the United States with dry land or which changes the bottom elevation of a water body" -- "cannot be comprised of waste." [6]

According to a statement from Rep. Pallone's office, the bill "restores the prohibition on using waste as 'fill' that had been included in the U.S. Army Corps of Engineers' regulations since 1977." The bill would restrict the practice of mountaintop removal mining. "It is unacceptable to allow the excess spoil from this type of mining to be dumped in mountain streams where it can pollute waterways, and in some cases potentially endanger the lives of area residents," Pallone was quoted as saying, in the statement. "The federal government should not continue to give massive mining companies a free pass to dump their waste into nearby streams, and should instead protect residents who have been negatively impacted by this activity for too long." [7]

Application to various bodies of water

On April 2, 2009, Senator Russell Feingold introduced S.787, also known as the "Clean Water Restoration Act." The bill would amend the CWA, to "clarify the jurisdiction of the United States" and establish the CWA's application to U.S. waters, including interstate wetlands, tributaries, territorial seas, "intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds." The bill is in reaction to two U.S. Supreme Court decisions, Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (531 U.S. 159, 2001) and Rapanos v. United States (547 U.S. 715, 2006), which the bill blames for "confusion, permitting delays, increased costs, litigation, and reduced protections for waters of the United States." [8]

A press release from Sen. Feingold's office states that "rivers, streams and wetlands, which were long protected under the Clean Water Act (CWA) ... are now in jeopardy of losing protections," because of the two Supreme Court decisions. "Every day Congress fails to reaffirm Clean Water Act protections, more and more waters are stripped of their protections, jeopardizing the drinking water of millions of Americans, as well as our nation's wildlife habitats, recreational pursuits, agricultural and industrial uses, and public health," Feingold is quoted in the statement as saying. [9]

Application to Maine dams

In 2005, Hunton & Williams filed a "friend of the court" (amici curiae) brief, on behalf of the National Association of Home Builders and the Foundation for Environmental and Economic Progress. The brief was filed in the U.S. Supreme Court case of S. D. Warren Co. v. Maine Board of Environmental Protection (547 U.S. 370, 2006), in support of the S. D. Warren Company. The company, which operates hydroelectric dams in Maine, argued that the Clean Water Act did not require it to seek water quality certifications from the state government, when renewing its federal licenses with the Federal Energy Regulatory Commission. The Supreme Court disagreed. Maine's Board of Environmental Protection had required the company to maintain a "minimum stream flow and to allow passage for certain fish and eels." [10]

The brief -- co-authored by Hunton's Virginia S. Albrect, Karma B. Brown and Kathy Robb, the director of the firm's Water Policy Institute -- supported S. D. Warren Company, arguing that requiring the company to obtain water quality certifications from the Maine government "improperly expands the CWA," or Clean Water Act. The brief compared water passing through a dam to water "stirred by a spoon, pushed by an oar, or splashed by a hand," arguing that "such movements of water" should not trigger application of the Clean Water Act. [11]

Articles and resources

Related SourceWatch articles

References

  1. ↑ 1.0 1.1 "Summary of the Clean Water Act," U.S. Environmental Protection Agency website, accessed April 2009.
  2. ↑ "SUPREME COURT OF THE UNITED STATES: ENTERGY CORP. v. RIVERKEEPER, INC., ET AL. - CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT," No. 07–588. Argued December 2, 2008; Decided April 1, 2009.
  3. ↑ 3.0 3.1 Jennifer Koons, "Groups debate Supreme Court's power plant ruling," New York Times, April 2, 2009.
  4. ↑ Tony Mauro, "Supreme Court Strengthens Arbitration in Labor Case Ruling," Legal Times, April 2, 2009.
  5. ↑ Robert Barnes, "EPA Can Weigh Cost-Benefits in Environmental Action, Court Says," Washington Post, April 2, 2009.
  6. ↑ "H.R.1310," Library of Congress Thomas website, accessed April 2009.
  7. ↑ Press release, "Lawmakers Introduce Bipartisan Legislation to Prohibit Dumping Industrial Waste into Rivers and Streams," Rep. Frank Pallone's office, March 4, 2009.
  8. ↑ "S.787," Library of Congress Thomas website, accessed April 2009.
  9. ↑ Press release, "Feingold Reintroduces Effort to Protect the Drinking Water of Over 100 Million Americans," Sen. Russ Feingold's office, April 2, 2009.
  10. ↑ "Syllabus: SUPREME COURT OF THE UNITED STATES: S. D. WARREN CO. v. MAINE BOARD OF ENVIRONMENTAL PROTECTION et al., Certiorari to the Supreme Judicial Court of Maine; No. 04–1527. Argued February 21, 2006 - Decided May 15, 2006," available via the Cornell University Law School website, accessed February 2009.
  11. ↑ Duane Desiderio, Thomas Jon Ward and Felicia Watson of the National Association of Home Builders, with Virginia Albrecht, Karma Brown and Kathy Robb of Hunton & Williams LLP, "Brief of Amici Curiae National Association of Home Builders and Foundation for Environmental and Economic Progress, in Support of Petitioner (pdf)," filed with the U.S. Supreme Court November 23, 2005.

External resources

External articles

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