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 water is.
You may remember your science teacher telling your class that water is essential for all living things. This fact is recognized by officials all over the world, since most countries have crafted laws involving clean water, with the US being 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 exactly it is about. You may have even heard of it plenty of times lately due to the controversial plan of the Trump administration to repeal one of its aspects.
But, should you be concerned about this decision? Before you decide, you need to first understand what it is, and that is why we came up with this guide to help you learn about the history of the Clean Water Act, its purpose, and more.
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 the Clean Water Act?
Are you one of the many people who believe that this law has something to do with the water coming out of your faucets, as well as the kind of water that we drink?
We hate to burst your bubble, but this is not the case.
So, what exactly is the Clean Water Act?
The main purpose of the Clean Water Act, or CWA, is to ensure that the bodies of water in the entire US are well-protected against contamination, which has become a huge problem not just in large bodies of water but also even in smaller ones. The bodies of water primarily covered by this law are those that are considered navigable, including any of their tributaries, as well as those that serve an economical function.
Rivers, lakes, and other bodies of water were used as dumping ground of wastes in the past, especially by industrial facilities and commercial enterprises, and this had serious consequences. These surface waters became unsafe for consumption or use by humans and animals alike, as well as wreaked havoc to the environment. This problem was the major reason for the creation of the CWA.
This federal law does not only cover the regulation and prevention of discharged pollutants, but also includes addressing already polluted surface waters to improve its water quality to meet local standards. Not only that, this law also covers any related components, such as wetlands that are adjacent to these waters.
The Clean Water Act vs Safe Drinking Water Act
Given that this law covers the waters used for navigation and commerce, as well as their adjacent wetlands, you may think that it does not really apply to you. Your concern may lie on how safe the water supply that you use every day is, and this is covered by the Safe Drinking Water Act, or SDWA. Some people mistake one for the other, that is why it is important to compare the Clean Water Act versus the Safe Drinking Water Act.
While the two laws both deal with water quality, their scope is different.
You are already aware that the CWA deals with the natural bodies of water, such as rivers and lakes, and the monitoring, protection, and improvement of their conditions. They are concerned with achieving the quality of water that meets the minimum standards set, which is done through the rehabilitation of the polluted surface waters, as well as the monitoring of discharges to these waters.
On the other hand, the SDWA focuses on the public’s water supply, ensuring that the potable water is safe for drinking. This law requires the water suppliers, states, and localities to work together to achieve the quality of potable water that meets their minimum standards.
Even if they have different scopes, the Clean Water Act and the Safe Drinking Water Act have a common ground. For the drinking water to be safe in accordance to the SDWA, the source of the water supply and the processes involved must also meet the standards set by the state. This is where the CWA comes in; by ensuring that the sources are up to par by following the CWA, it makes it easier to get safe drinking water, which is the main objective of the SDWA.
What Does the Clean Water Act Do?
With the establishment of the CWA, the dumping of pollutants into the different bodies of water became highly regulated. By monitoring and controlling the point source pollution, they are one step closer to achieving the main objective of the law, which 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 focusing on their revival and rehabilitation, in hopes of making them “fishable and swimmable.” And once these waters have been brought back to life, the law requires that authorized agencies must ensure that the water quality remains in that acceptable state or is improved.
Among the objectives of the Clean Water Act are to:
- Provide financial assistance to create facilities that are publicly-owned that will address water pollution in terms of prevention, cleanup, and maintenance, as well as improve water quality
- Prosecute entities responsible for point source pollution who are caught discharging pollutants into the waters in quantities considered toxic
- Develop proper waste treatment policies and facilities to stop the improper dumping of pollutants into the waters in each state
- Conduct research in hopes of finding technological means of preventing the discharging of contaminants into the surface waters
- Come up with plans and solutions to address the problem of nonpoint sources polluting the waters
- Recognize the importance of wetlands, especially in terms of improving water quality, and create development plans in relation to it
Not only does the CWA have statutes and regulations aimed to protect surface waters, they have also set penalties for violators of these regulations in the form of fines, imprisonment, or both.
Fortunately, the Clean Water Act has been proven to be effective, especially in curbing water pollution. It was also discovered that since the establishment of this law, the number of surface waters that are now suitable for fishing increased by 12% and toxic pollutants in the water have greatly decreased, which means that the quality of the Nation’s waters have generally shown signs of improvement.
Clean Water Act History
It is not enough that you have a general idea of what the Clean Water Act is all about. You must also learn its history to understand why this law is pivotal not just in the US but even in other countries.
The main precursor of the Clean Water Act that we know today is the Federal Pollution Control Act of 1948. However, this law, as well as similar ones, were ineffective in dealing with water pollution. This is because these laws aimed primarily to prevent the dumping of garbage into navigational or commercial waters only, which means smaller bodies of water were left unmonitored.
People back then saw these waters as a dumping ground. It was so bad that billions of tons of raw sewage were entering the waters every day. In fact, the Cuyahoga River in Cleveland reportedly caught fire several times because of all the industrial waste present that contained flammable materials and chemicals. The fires in that river is considered as one of the major catalysts for people to start realizing that the problem with water pollution 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, and that the bacteria present were more than a hundred times the safe limits. Various government agencies then came up with their respective reports, with all of them in consensus that the waters are no longer safe.
All these led to the creation of the Clean Water Act of 1972. While it can be considered as a revision of the 1948 law, this 1972 law was the first comprehensive legislation to focus on water pollution and its effects and 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 water pollution, such as snow and rainwater that can collect particulate matter (link to particulate matter article?) as they fall. They also discovered the importance of wetlands when it comes to dealing with water pollution, so they expanded the law to include protection to these wetlands.
In recent times, the Clean Water Act has been met with criticisms. In particular, people have begun debating about what constitutes the “waters of the United States, or WOTUS,” that needs to be protected.
Despite the criticisms, it cannot be denied that the Clean Water Act has been instrumental in the overall improvement of the waters of the United States.
Why Was the Clean Water Act Created?
Many of the country’s laws were created in response to a single catalyst, but the Clean Water Act is not one of them. Why this law was crafted is mainly due to the increasing number of incidents that affected humans, animals, and the environment that were all caused by water pollution, such as the Cuyahoga River fires and numerous fish kills that occurred throughout the country.
While it may not be the main reason, it cannot be denied that the Cuyahoga River fires were a big factor in the establishment of this law. There had been several other incidents prior to the 1969 fire, but it was this incident that was even documented and published by Time Magazine which led to public awareness of the horrific conditions of the waters.
However, those incidents were not the sole reason for amendment of the 1948 law. Even before this law, people were already throwing their wastes into the waters, as it is 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, and this lead to the creation of the Clean Water Act. This was also done to alleviate the concerns of the general public who were fearful of how the water pollution can affect them.
And the rest, as they say, is history.
While there are several sections under the Clean Water Act, there are specific ones that are noteworthy. One of those is Section 404, which is considered as one of the cores of the entire this law.
Section 404 of the CWA regulates the type and quantity of discharge, particularly fill or dredged material, that enters the protected waters and wetlands through the establishment of a permit program. This section also prohibits any dredge and fill discharges based on these conditions:
- A feasible alternative that will cause less harm to the waters is available
- The discharge will negatively affect the quality of the water
Those who will conduct activities that can cause dredge and fill material to end up in the surface waters must first undergo a permit review process before they can obtain the necessary permit.
Should you pass the screening, you will be given either a general permit or individual permit by the US Army Corps of Engineers. A general permit is issued when the activity is believed to affect the aquatic environment only minimally, such as through utility line backfills, beddings, and small-scale road activities. But if the activity has the potential to cause harm, either due to the larger scope of the project or will conflict with environmental issues, 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. However, those who do may also be required to get a similar permit at the state level in accordance to Section 401 of the Clean Water Act.
Section 401 is known as the “water quality certification program”, which authorizes the state and specific tribes to issue the required certificates or permits to entities who will conduct any activity that can result in the discharge of dredge or fill material into the waters, but only after a careful review.
This Section 401 Water Quality Certification, or WQC, will only be given to individuals or businesses that have successfully passed the required screening process conducted by authorized tribes and the state. It will only be issued to those who can prove that their activities will not worsen the condition of the waters involved.
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 for hydroelectric power plants that fall under the Federal Power Act
- Permits issued under the Rivers and Harbors Act and are covered by Sections 9 and 10
These applicable federal licenses are invalid if you are unable to acquire the Section 401 certification that is issued at the state level. You must obtain the 401 Certificate first before you can be 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 to the surface waters to get a permit to do so under the National Pollutant Discharge Elimination System, or NPDES. This program allows states to monitor and control discharges that are directed to surface waters.
Those who are required to secure this permit include the following:
- Construction sites that cover an acre of land at minimum
- Municipal facilities that have stormwater systems, including those found in chemical storage facilities, highways, rest areas, ferry terminals, maintenance facilities, and park and ride lots
- Industrial facilities
- Developments or those who will conduct any activity that will cause disturbance to the soil, including hydraulic fracturing or fracking
The NPDES will also issue either general or individual permits, but these are different from the ones issued by the Corps. Individual permits will cover specific facilities only, while general permits is suitable for multiple facilities that fall under the same category, whether in their operations and use or in the disposal of sludge.
Who Enforces the Clean Water Act?
One of the biggest criticisms of the old environmental laws is in terms of enforcement. Different states have different laws involving their surface waters, that is why the implementation of the laws is inconsistent. The Clean Water Act aimed to resolve this by assigning specific agencies and organizations to handle this crucial aspect.
The primary enforcer of the Clean Water Act is the Environmental Protection Agency, which was created in the 1970s to streamline the research, monitoring, and enforcement of laws and programs involving environmental issues, including water pollution.
However, the EPA does not act alone when it comes to enforcing the CWA. Under the Clean Water Act Compliance monitoring program, the EPA works together with state, federal, and tribal partners in ensuring the compliance of everyone to the law.
Not only do 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, regardless of 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. And for those who will file administrative appeals involving the agency, such as in terms of penalties set under the CWA and the issuance or non-issuance of permits by the NPDES, the Environmental Appeals Board will handle them.
All these agencies and authorized partners work together to ensure that all concerned parties and individuals in their jurisdiction will comply with the law.
The Clean Water Act Under the Obama Administration
Over the years, the Clean Water Act has undergone numerous amendments and addendums, and this also happened under the Obama administration. Perhaps the most significant changes to it during that time was made in 2015 and is now known as the Clean Water Rule or the Waters of the United States Rule (WOTUS).
What constitutes as the “Nation’s waters” had often been a point of contention for many, and the 2015 Clean Water Rule aimed to solve this issue. The Obama administration believed that by defining what are the waters that should be protected under the Clean Water Act, it will allow the EPA and its partners, especially the Corps, to give better protection to those covered by the rule.
The WOTUS rule does not contain any new rules to follow in relation to the CWA, but simply clarifies the waters that are covered by the law. The administration deemed it necessary to clearly define what these waters are because the traditional term “navigational waters” used to define it was considered too broad and vague.
With this rule, the Nation’s waters covered by the Clean Water Act are:
- Interstate waters, 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 waters and territorial seas
- Waters that are located next to or adjacent to the aforementioned
- Those with a significant nexus to the waters that are considered interstate waters and territorial seas, including wetlands and seasonal streams
- Impoundments of the waters that are qualified based on the above conditions
These criteria are not absolute, as the rule also mentions that there are instances wherein determining if the body of water is covered by the CWA will be decided on a case-to-case basis, such as:
- If it is part of named formations, e.g. pocosins, prairie potholes, and the Carolina and Delmarva Bays
- Is a coastal prairie wetland found in Texas or California
- Is located within a specific distance to territorial water’s high water mark or high tide and has a significant nexus to it
Although its aim was to make the definition clearer, it was still met with criticisms and objections. Those who vehemently opposed the rule include farmers, coal miners, home developers, oil and gas drillers (especially those involved in fracking), and various officials, arguing that the rule will negatively impact different industries and can even violate the property and economic rights of these small business owners.
The Trump Administration’s Repeal of the Clean Water Rule
If you are not aware, the Trump administration has decided to repeal the Clean Water Rule made by the Obama administration because of the various criticisms involving it.
President Trump claimed that this rule gave free reign to the EPA to consider various surface waters as navigational waters, even those that are found inside farmlands, ranches, and other properties. He also highlighted the situation in California to justify this decision.
Both the EPA and the Corps are said to support this decision, based on the discovery that there were various violations committed in the creation and application of the rule, especially procedural errors, including:
- Legal limits of the authorized agencies under the Clean Water Act were not implemented and 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 when it comes to 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, both land and water, in terms of their rights and responsibilities
- Without any clear statement from the Congress, this rule then allowed the authorized agencies to reach the limits of their statutory and constitutional authority
Unsurprisingly, there are also people who opposed this repeal. Those who do argue that by repealing the Clean Water Rule, it will be detrimental to human health, affect the quality of potable water, and negatively impact the environment, among others.
In response to the criticisms of this controversial decision, the Trump administration released their own possible guidelines as to which bodies of water will be federally regulated, namely:
- “Certain” lakes, ponds, and ditches
- Waters traditionally used for navigation and their tributaries
- Adjacent wetlands and impoundments of territorial waters
They also made a list of those that they do not considered as the Nation’s waters but were said to be included in the Obama WOTUS rule, which 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 due to rainfall
Those who laud this repeal consider it as a personal victory, especially those who have income-generating properties located near bodies of water, as they claim that the Obama rule prevented them from using their lands as they see fit. On the other hand, those who oppose it are fearful of its effects, as they believe that it will return the conditions of these waters before the Clean Water Act was created.
It is important to note that the Trump administration is only repealing the Clean Water Rule of the Obama administration, not the entire Clean Water Act. However, only time will tell if the current administration’s decision to repeal will stop there.
The Clean Water Act was created in order to address the growing concern involving pollution in surface waters. This law primarily focuses on the monitoring and regulation of discharges of materials that may be considered pollutants to the Nation’s waters. And under this law, the authorized agencies and partners are expected to clean up or rehabilitate these waters to meet the water quality standards set and ensure that the quality is at least retained or improved once it meets the minimum standards.
While this law does not completely prohibit discharges into protected waters, it limits point source discharges by requiring those who will do so to first obtain the necessary permits and certifications. The required permits will depend on the relevant section of this law.
The 1972 version of the law, which was based on the Federal Water Pollution Control Act of 1948, included these major points:
- The EPA is authorized to create and handle programs aimed at pollution control
- Any person or entity who discharges pollutants into the waters, particularly from a point source to navigable waters, without the required permit is in violation of the law
- Authorized agencies, including the state and tribes, are expected to set the standards of water quality for surface waters under their jurisdiction
- Construction of facilities intended for sewage treatment
- Acknowledge the contribution of nonpoint sources to water 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 of the Clean Water Act include:
- Giving the EPA authority to create programs aimed to develop wetlands
- Focused on pollutants considered toxic and mandated different industries to meet the technology standards set involving these pollutants, as well as any new ones listed within three years
- Authorized the EPA to address pollution involving hazardous materials and oil through cleanups of the waters up to 200 miles from the shoreline
The main goal of this law is ensure that the waters of the United States covered by this law will meet the standards set to make it “fishable and swimmable”, whether through preventive measures or by rehabilitating the protected waters.