The Clean Water Act is a piece of landmark legislation enacted with the goal to make the nation's waterways "fishable and swimmable" by 1983, to ban toxic pollution and to eliminate the discharge of pollutants into the nation's "navigable waters" by 1985. These goals have yet to be reached. Unfortunately, the zero discharge goal is far from being reached and toxics are still being released into the environments. On the other hand, much progress has been made in some river systems to achieve fishable and swimmable standards. Fortunately, many of America's rivers have become measurably cleaner over the past 22 years.
The initial focus of the Act's early provisions were aimed at municipal and industrial pollution. Nearly $50 billion dollars of federal grants went toward municipal sewage treatment plants. The result was a significant decrease in municipal and industrial pollution. However, polluted runoff continued to increase.
In 1987, Congress attempted to address the problem with amendments specifically targeted at stormwater runoff. This was a step in the right direction toward reducing some forms of polluted runoff while our nations leading problem, runoff from agricultural areas, forest clearcuts and construction sites remained with no regulatory authority to control
them. On paper, the Clean Water Act encompasses an enormous potential to protect our nation's rivers. Its strength is diminished in part because adequate monitoring and enforcement resources are not available and issues such as nonpoint source, polluted runoff are not addressed. Despite these
weaknesses, the Clean Water Act remains a powerful weapon to fight pollution and offers citizens legal tools to levy against polluters.
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The Clean Water Act mandates that states assign specific uses to its rivers; these include such uses as fishing, swimming, or water supply. Once uses are designated, water quality standards are established. It is the implementation of management plans designed to meet these water quality standards that often fail. Under the Act, companies discharging pollutants into waterways need to apply for a National Pollution Discharge Elimination System permit. The application is then reviewed by state agencies and a certificate of compliance is accepted or denied depending upon whether or not the company can meet the established water quality standards. Although the Act is enforced by the Environmental Protection Agency, section 505 gives citizens the opportunity to watchdog for violations that are overlooked or ignored. |
The Clean Water Acts application extends to cover water quality issues such as water temperature, turbidity, dissolved oxygen and possibly even instream flows. The latter is a point of legal opinion and has been the crux of at least two U.S. Supreme Court cases. These cases investigated whether states can veto FERC permits based upon degradation of aesthetic or recreational values. In any case, FERC-permitted hydropower dams or diversions must acquire 401 certificates to show that the project will not violate state water quality standards. To date, it is unclear exactly how far the Act can be stretched to protect instream flows, fisheries, and aesthetics.
Another section of the Clean Water Act commonly associated with wetland protection is section 404. This section can also be used to protect rivers. Section 404 delegates regulatory authority to the Army Corp of Engineers to oversee the discharge of fill or dredged material into rivers and wetlands. This includes most types of stream developments like dredging and dam construction. For example, any dam on a navigable river must receive a section 404 permit from the Army Corp of Engineers.
Although many feel this is like letting James Watt head the Environmental Protection Agency, the Corp of Engineers has embraced what it calls a "new environmental ethic" and has supported wetland protection with surprising aggressiveness under section 404 of the Clean Water Act. To balance the power given to the Army Corp of Engineers, the EPA has veto power over fill permits and both the U.S Fish and Wildlife Service and the National Marine Fisheries Service can participate in the review of section 404 applications.
Factors which must be considered during the review process are the projected impacts of proposed activities on water quality, fish and wildlife, flood damage prevention, recreation, land use and aesthetics. The permit should be denied "if there is a practicable alternative to the proposed discharge that would have less impact on the aquatic ecosystem."
Another potentially potent river protection tool lies in the Clean Water Acts
"antidegradation" provision. The act states that the nation's water quality should be "maintained". It is the interpretation of this language that is pivotal to its efficacy as a river protecting tool. To date, the EPA has interpreted it to mean that existing instream water uses, and the water quality "necessary to
protect the existing uses," must be maintained and protected. The term "existing uses" has been a source of much controversy and the question whether the term refers to natural activities as well as anthropocentric ones has arisen.
Three levels of "antidegredation" are outlined in the EPA's policy. The first form requires states to maintain "all existing instream water uses". The second emphasizes the protection of rivers with water quality high enough "to support propagation of fish, shellfish, and wildlife and recreation" The third antidegredation level applies to rivers which constitute an "outstanding natural resource" and strictly implies that no degredation of water quality is to be allowed.
Because the Clean Water Act is laden with terms like "degredation" and
"instream water uses", it is often open to interpretation. The Acts interpretation can work in favor of protecting rivers or quite possibly could open doors for would-be polluters. However, many aspects of the Clean Water Act can be used as powerful tools for protecting rivers.
As presented by David M. Bolling in his book How to Save a River, the Clean Water Act is an open invitation for private citizens to become involved in protecting rivers and water quality standards. Below is a list of ways for citizens to take advantage of the regulatory teeth that the Act provides:
1) Because clandestine dumping is not an uncommon industrial practice, citizen groups can bust the slimeballs through surveillance and water monitoring. For advice look to the River Watch Network.
2) Use bio-monitoring techniques to asses the overall health, not just chemical purity, of your rivers. For help try the Izaak Walton League's Save Our Streams program.
3) To investigate questionable companies, obtain monthly pollution discharge reports and review them for compliance.
4) Sue-Sue-Sue Section 505 of the Clean Water Act gives citizens the right to sue potential polluters and the agencies responsible for regulating them. All you need to do is demonstrate that you use the affected resource (the river) and can point to the polluter(s) who is/are affecting it at that source. If you fish, swim, boat, etc. in that river you probably have standing to sue. However, keep in mind that 60 days before a suit is filed you must notify the EPA, the appropriate state water quality agency, and the violator in question.
Also, the suit is considered preempted if a civil or criminal action is initiated by the EPA or state during the 60 day period.
5) Persuade your regulatory agencies and legislators to regulate toxic discharges in terms of their impacts on biological communities not just EPA standards.
6) Review section 401 requirements and apply them to hydropower license and relicensing applications.
7) Put the heat on state agencies to implement aggressive antidegredation policies.
References
David M. Bolling. 1994. How to Save a River: A Handbook for Citizen Action.
Island Press
Source: Environmental Law
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