Did you know that we can survive without food for several weeks, but we can only live without water for a few days?
That is how important it is.
You may remember your science teacher telling your class that it is essential for all living things. Officials recognize this fact since most countries have crafted laws involving clean water. The US is one of them.
The Clean Water Act is one of those legislations that ordinary people like you have likely heard of but have no clue what it is about. You may have even heard of it lately due to the controversial plan of the Trump administration to repeal one of its aspects.
Should you be concerned about this decision? Before you decide, you need first to understand what it is. That is why we came up with this guide to help you learn about its history and purpose.
We also know that going through the entire law will be time-consuming. That is why we will provide you with a summary of its main points to help you understand its main points.
What is it?
Are you one of the people who believe this law has something to do with the water coming out of your faucets?
We hate to burst your bubble, but this is not the case.
So, what exactly is it?
The main purpose of the Clean Water Act is to ensure that the bodies of water in the entire US are well-protected against contamination. It has become a huge problem in large bodies of water and even in smaller ones. The ones primarily covered by this law are those considered navigable. They include tributaries and those that serve an economic function.
Rivers and other places were used as waste dumping grounds, especially by industrial facilities and commercial enterprises. It had serious consequences. They became unsafe for consumption or use by humans and animals alike and wreaked havoc on the environment. This problem was the major reason for the creation of the CWA.
This federal law covers the regulation and prevention of discharged pollutants. It includes addressing already polluted surface waters (SW) to improve their quality to meet local standards. Not only that, but this law also covers any related components. It includes things such as wetlands that are adjacent to these.
The Clean Water Act vs. Safe Drinking Water Act
Given that this law covers the waters used for navigation, commerce, and wetlands, you may think it does not apply to you. Your concern may lie in how safe your supply every day is. This is covered by the Safe Drinking Water Act or SDWA. Some people mistake one for the other, so it is important to compare the two.
While the two laws both deal with quality, their scope is different.
You are already aware that the CWA deals with natural bodies of water, such as rivers and lakes. It includes the monitoring and improvement of their conditions. They are concerned with achieving a quality that meets the minimum standards set. It is done through the rehabilitation of the polluted SW and monitoring discharges.
On the other hand, the SDWA focuses on the public’s supply. It ensures that the potable supply is safe for drinking. This law requires the suppliers and localities to work together to achieve the quality of potable supply. It needs to meet its minimum standards.
Even if they have different scopes, they have a common ground. For the liquid to be safe, the source and the processes involved must meet standards set by the state. This is where the CWA comes in. Ensuring that the sources are up to par by following the CWA makes it easier to get safe drinking water. It is the main objective of the SDWA.
What Does the CWA Do?
With the establishment of the CWA, the dumping of pollutants became highly regulated. By monitoring and controlling the point source pollution, they are one step closer to achieving the law’s main objective. It is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
To address already polluted waters, the CWA has also included provisions. These focus on their revival and rehabilitation in hopes of making them “fishable and swimmable.” Once they have been brought back to life, the law requires that authorized agencies ensure the quality remains in that acceptable state.
Among the objectives of the CWA are to:
- Provide financial assistance to create facilities that are publicly owned. It will address pollution in terms of prevention and cleanup. It’s also in charge of maintenance, as well as improving quality.
- Prosecute entities responsible for point source pollution caught discharging pollutants in quantities considered toxic.
- Develop proper waste treatment policies and facilities to stop the improper dumping of pollutants in each state.
- Conduct research to find technological means of preventing the discharging of contaminants into the SW.
- Come up with plans and solutions to address the problem of nonpoint sources polluting.
- Recognize the importance of wetlands, especially in terms of improving quality. Create development plans concerning it.
The CWA has statutes and regulations aimed to protect SWs. They have also set penalties for violators of these regulations in the form of fines and imprisonment.
The CWA has proven effective, especially in curbing pollution. Since the establishment of this law, it was discovered that the number of SWs that are now suitable for fishing has increased by 12%. Toxic pollutants have greatly decreased. It means that the quality of the Nation’s waters has generally shown signs of improvement.
It is not enough to have a general idea of what the CWA is all about. You must also learn its history to understand why this law is pivotal in the US and even in other countries.
The main precursor of the CWA that we know today is the Federal Pollution Control Act of 1948. This law was ineffective in dealing with pollution and similar ones. These laws are aimed primarily to prevent garbage dumping into navigational or commercial waters only. It means smaller bodies were left unmonitored.
People back then saw these as a dumping ground. It was so bad that billions of tons of raw sewage were entering them every day. The Cuyahoga River in Cleveland reportedly caught fire several times. It was because of all the industrial waste containing flammable materials and chemicals. The fires in that river are considered one of the major catalysts for people to start realizing the problem of pollution. It has become very serious.
However, this burning river was not the only incident that spurred people into action. There were also several reports of fish kills in different places, with 26 million fish alone killed in Lake Thonotosassa. The bacteria present were more than a hundred times the safe limits. Various government agencies then came up with their respective reports. They all agreed that the waters were no longer safe.
All of these led to the creation of the CWA in 1972. It can be considered a revision of the 1948 law. This 1972 law was the first comprehensive legislation to focus on water pollution and its effects. It intended to be more proactive in dealing with them. It was later amended in 1977 and again in 1987.
Since then, the law started including nonpoint sources of pollution. It includes things such as snow and rainwater that can collect particulate matter as they fall. They also discovered the importance of wetlands when dealing with pollution. They expanded the law to protect these wetlands.
In recent times, the CWA has been met with criticisms. People have begun debating what constitutes the “waters of the United States, or WOTUS.” It became evident they needed protecting.
Despite the criticisms, it cannot be denied that it has been instrumental in improving these protected areas.
Why Was It Created?
Many of the country’s laws were created in response to a single catalyst, but the CWA is not one of them. This law was crafted mainly due to the increasing number of incidents that affected humans and the environment caused by pollution. An example includes the Cuyahoga River fires and numerous fish kills throughout the country.
It may not be the main reason. It cannot be denied that the Cuyahoga River fires were a big factor in establishing this law. There had been several other incidents before the 1969 fire. Still, Time Magazine even documented and published this incident. It led to public awareness of the horrific conditions.
However, those incidents were not the sole reason for the amendment of the 1948 law. Before this law, people were already throwing their waste into the waters. It was the most convenient way of waste disposal. But with the boom of factories and mass settlement of people near bodies of water, especially during the Industrial Age. This practice got even worse and started affecting people’s health.
Because of these collective incidents, people realized that the existing laws were no longer enough to address the problem. This led to the creation of the CWA. This was also done to alleviate the general public’s concerns, who feared how the pollution could affect them.
And the rest is history, as they say.
While there are several sections under the CWAt, there are noteworthy specific ones. One of those is Section 404, which is considered one of the cores of this law.
Section 404 of the CWA regulates the type and quantity of discharge, particularly fill or dredged material. It regulates their entering the protected waters and wetlands by establishing a permit program. This section also prohibits any dredge and fill discharges based on the conditions below.
- A feasible alternative that will cause less harm is available.
- The discharge will negatively affect the quality.
Those who conduct activities that can cause dredge and fill material in the SWs must first undergo a permit review process. This is done before obtaining the necessary permit.
The US Army Corps of Engineers will give you either a general permit or an individual permit if you pass the screening. A general permit is issued when the activity is believed to affect the aquatic environment only minimally. It includes activities such as through utility line backfills and small-scale road activities. But suppose the activity can cause harm. It can either be due to the larger scope of the project or will conflict with environmental issues. In that case, you will be given an individual permit.
There are also exemptions to this ruling. Not all those who will discharge pollutants are mandated to obtain a permit from the Corps before starting their activities. Those who do may be required to get a similar permit at the state level, according to Section 401 of the CWA.
Section 401 is the “water quality certification program,” WQC. It authorizes the state and specific tribes to issue the required certificates. Permits are issued to entities who conduct any activity that can discharge dredged or filled material into the waters. They’re only granted after a careful review.
This Section 401 WQC will only be given to individuals or businesses that have successfully passed the required screening process. Authorized tribes and the state conduct it. It will only be issued to those who can prove that their activities will not worsen the waters’ condition.
While it primarily supports the Section 404 Dredge and Fill permits, this certification is also required by the following:
- Nuclear Regulatory Commission licenses
- Federal Energy Regulatory Commission licenses hydroelectric power plants under the Federal Power Act.
- Permits are issued under the Rivers and Harbors Act and are covered by Sections 9 and 10.
These applicable federal licenses are invalid if you cannot acquire the Section 401 certification issued at the state level. You must obtain the 401 Certificate first before being given a 404 Certificate.
If the material that may enter the surface waters involves stormwater and sewer discharges, Section 402 will apply. This Section mandates those who will discharge known pollutants from a point source. They must get a permit under the National Pollutant Discharge Elimination System or NPDES. This program allows states to monitor and control discharges directed to SWs.
Those who are required to secure this permit include the following:
- Construction sites that cover an acre of land at a minimum.
- Municipal facilities have stormwater systems. It includes those found in chemical storage facilities and highways. Rest areas and ferry terminals are also covered by it. Maintenance facilities and parks are also included.
- Industrial facilities
- Developments or those who will conduct any activity that will cause disturbance to the soil. It includes hydraulic fracturing or fracking.
The NPDES will also issue either general or individual permits. Still, these are different from the ones issued by the Corps. Individual permits will cover specific facilities only. General permits are suitable for multiple facilities that fall under the same category. It doesn’t matter if they’re in their operations and use or sludge disposal.
Who Enforces It?
One of the biggest criticisms of the old environmental laws is enforcement. Different states have different laws involving their surface waters. That is why the implementation of the laws is inconsistent. The CWA aimed to resolve this by assigning specific agencies and organizations to handle this crucial aspect.
The primary enforcer of the CWA is the Environmental Protection Agency. It was created in the 1970s to streamline the research and monitoring involving environmental issues. It’s also in charge of the enforcement of laws and programs, including water pollution.
However, the EPA does not act alone when enforcing the CWA. Under the Clean Water Act Compliance monitoring program, the EPA works together with state and federal to ensure compliance.
These partners handle the reviews and permit issuance mentioned in the earlier sections. They also have a role in ensuring that everyone under their jurisdiction will follow the law. It doesn’t matter whether they have the required permits or not.
In case of non-compliance with the law, the EPA has assigned Administrative Law Judges to handle related cases. For those who will file administrative appeals involving the agency, the Environmental Appeals Board will handle them. This includes terms of penalties set under the CWA and the issuance or non-issuance of permits by the NPDES.
All these agencies and authorized partners work together. They ensure that concerned parties and individuals in their jurisdiction will comply with the law.
Under the Obama Administration
Over the years, the CWAt has undergone numerous amendments and addendums. It also happened under the Obama administration. Perhaps the most significant changes to it during that time were made in 2015. They are now known as the Clean Water Rule or the Waters (CWRW) of the United States Rule (WOTUS).
What constitutes the “Nation’s waters” has often been a point of contention for many. The 2015 CWRW aimed to solve this issue. The Obama administration believed in defining the spaces that should be protected under the CWA. It will allow the EPA and its partners to protect better those covered by the rule, especially the Corps.
The WOTUS rule does not contain any new rules concerning the CWA but clarifies the limits covered by the law. The administration deemed it necessary to define the limits clearly. The traditional term “navigational waters” used to define it was considered too broad and vague.
With this rule, areas covered by CWA are:
- Interstate or waters that intersect two or more state borders.
- Waters that are used for interstate commerce and navigation.
- Territorial seas
- Tributaries or waters that branch out from the interstate and territorial seas.
- Ones that are located next to or adjacent to the aforementioned.
- Those with a significant nexus to the waters that are considered interstate and territorial seas. It includes wetlands and seasonal streams.
- Impoundments of the waters that are qualified based on the above conditions.
These criteria are not absolute. A rule mentions there are instances wherein determining if the CWA covers the area will be decided on a case-to-case basis. Examples include:
- Suppose it is part of named formations, like pocosins and prairie potholes. The Carolina and Delmarva Bays are also included.
- If it is a coastal prairie wetland found in Texas or California.
- If it is located within a specific distance to the territorial high water mark or high tide and has a significant nexus to it.
Although it aimed to clarify the definition, it was still met with criticisms and objections. Those who vehemently opposed the rule included farmers and coal miners. Home developers and gas drillers also weren’t happy. They were arguing that the rule would negatively impact different industries. They also argued it would violate the economic property rights of these small business owners.
The Trump Administration’s Repeal
If you are not aware, the Trump administration decided to repeal the CWRW made by the Obama administration. It was because of various criticisms.
President Trump claimed this rule gave free rein to the EPA to consider SWs as navigational waters. It’s even those found inside farmlands and ranches. He also highlighted the situation in California to justify this decision.
Both the EPA and the Corps are said to support this decision. It’s based on the discovery that various violations were committed in creating and applying the rule. It’s especially procedural errors. They include:
- The legal limits of the authorized agencies under the CWA were not implemented. They failed to meet the expectations of Congress, and this was proven through various cases that reached the Supreme Court.
- There was inadequate record support and evidence of procedural errors regarding the distance-based limitations covered by the WOTUS rule.
- It did not fully protect and acknowledge the sovereignty of states when it comes to handling their resources. It includes both land and water regarding their rights and responsibilities.
- Without any clear statement from Congress, this rule then allowed the authorized agencies to reach the limits of their statutory and constitutional authority.
Unsurprisingly, some people opposed this repeal. Those who do argue that repealing the CWRW will be detrimental to human health. They argued it would affect potable water quality and negatively impact the environment.
In response to the criticisms of this controversial decision, the Trump administration released its possible guidelines. It included which areas be federally regulated, namely:
- “Certain” lakes, ponds, and ditches
- Ones traditionally used for navigation and their tributaries.
- Adjacent wetlands and impoundments of territorial waters
They also made a list of those who do not consider the Nation’s waters. Those were said to be included in the Obama WOTUS rule. They are:
- Cropland that underwent conversion
- Waste treatment systems and stormwater control features
- “Many” ditches, including those on farms and roadsides
- Those that only hold water under specific conditions, such as rainfall.
Those who laud this repeal consider it as a personal victory. It’s especially those who have income-generating properties located near bodies of water. They claim that the Obama rule prevented them from using their lands as they see fit. Those who oppose it are fearful of its effects. They believe that it will return to these conditions before the CWA was created.
It is important to note that the Trump administration is only repealing the CWRW of the Obama administration. They did not repeal the entire CWA. However, only time will tell if the current administration’s decision to repeal will stop there.
It was created to address the growing concern involving pollution. This law focuses on monitoring and regulating discharges of materials that may pollute the Nation’s waters. Under this law, the authorized agencies and partners are expected to clean up or rehabilitate these waters. They must meet the quality standards set. They must also ensure that the quality is retained or improved once it meets the minimum standards.
While this law does not completely prohibit discharges, it limits point source discharges. It requires those who will do so first to obtain the necessary permits and certifications. The required permits will depend on the relevant section of this law.
The 1972 version of the law was based on the Federal Water Pollution Control Act of 1948. It included these major points:
- The EPA is authorized to create and handle programs aimed at pollution control.
- Any person or entity who discharges pollutants without the required permit violates the law. It’s particularly from a point source to navigable waters.
- Authorized agencies are expected to set quality standards for SWs under their jurisdiction.
- Construction of facilities intended for sewage treatment
- Acknowledge the contribution of nonpoint sources to pollution and come up with ways to address the problems they bring.
Amendments made in 1977 to address the shortcomings of and improve the initial version include:
- It gave the EPA authority to create programs aimed to develop wetlands.
- It focused on pollutants considered toxic. It mandated different industries to meet the technology standards set involving these pollutants. It includes any new ones listed within three years.
- It authorized the EPA to address pollution involving hazardous materials and oil through cleanups up to 200 miles from the shoreline.
The main goal of this law is to ensure that the waters of the United States covered by this law will meet the standards set to make them “fishable and swimmable.” It is done through preventive measures or by rehabilitating the protected places.
In simple words, here are the three things that the clean water act ensures:
– It sets the minimum standard of water quality discharge for each industry. It regulates specific issues such as oil spills and the release of hazardous chemicals.
– The National Pollutant Discharge Elimination System requires all wastewater treatment plants to undergo EPA guidelines for water treatment.
– Works on specific environmental assets such as the wetlands or great lakes.
The 92nd United States Congress passed the Clean Water Act.
In 1972, the act was a simple answer to the public concern for environmental pollution of the waters. It meant to restrict as much pollution as possible from seeping into the fresh waters.
The Clean Water Act of 1977 set a strict secondary treatment of the wastewaters collected. It includes those collected from the municipalities, industries, and businesses before being suspended into the fresh waters.
No, as it was repealed by the Trump Administration to adopt the 2020 Navigable Waters Protection Rule (NWPR). This new rule favors permanent water bodies and does not consider “ephemeral” waters created due to precipitation.