Drinking Water and Aquatic Resource Protection - Module 3 of 5

Drinking Water and Aquatic Resource Protection - Module 3 of 5


Module 3: Drinking Water and Aquatic Resource Protection

 

Congress passed a major reorganization to the country’s water pollution laws in 1972. The Clean Water Act, together with the Safe Drinking Water Act of 1974, protects America’s aquatic resources, but the natural complexity of our national watersheds also calls for additional and different approaches to prevent water pollution.

This module discusses the policies and legal structures created by the Clean Water Act and Safe Drinking Water Act. We’ll also cover how statutes function to protect our aquatic resources, including the regulation of water pollution, wastewater, stormwater, and public drinking water sources.


The Clean Water Act Aims to Protect and Restore America’s Waterways

Across the United States, lakes and rivers connect to form watersheds that span across state boundaries, and these waters are critical to our national infrastructure. Congress took early precautions to protect them with the first major water pollution prevention law, called the Federal Water Pollution Control Act, passed in 1948. The law became known as the Clean Water Act after Congress passed a major overhaul to the law in 1972. This updated law established the basic structure for regulating harmful waste in the waters of the United States and allowed the Environmental Protection Agency to create pollution control programs and set water quality standards for all known contaminants in surface waters.

Perhaps most importantly, the Clean Water Act made it illegal for any person to dispose of any pollutant from a “point source” into open waterways except as allowed by permit granted by the appropriate federal or state agency.[1] A point source is “any single identifiable source of pollution from which pollutants are discharged, such as a pipe, ditch, ship or factory smokestack.”[2] We think of factories generating waste or sewage treatment plants as point sources, but farms, irrigation canals and even forestry operations can also qualify if their waste products qualify as pollutants.

Congress passed the Clean Water Act to protect the quality, integrity, and usefulness of these waters. The stated objective of the Clean Water Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”[3]  

The Act addresses water pollution by regulating point-source discharges, or any “discernable, confined, and discrete conveyance,” of pollutants into the territorial waters of the United States. [4] This is an intentionally broad category. A point source discharge can be any discrete disposal, including equipment such as a pipe or hose, man-made ditches, industrial facilities, mining, or oil extraction. These discharges must obtain a permit if they are dumping directly into surface water.[5] Discharges also include municipal wastewater overflows, stormwater management, discharges from animal feeding operations, commonly known as “CAFOs”, or any other discrete or traceable contamination into a water source.[6] 

While the Clean Water Act is intentionally broad, it is not limitless. The law does not extend to non-point sources, such as runoff carrying fertilizers and pesticides from over-irrigated agricultural land. Unless the water is contaminated from a specific source, the Clean Water Act does not apply. A direct discharge of pollutants only violates the Clean Water Act if the pollution ends up in “waters of the United States,” including streams, lakes, rivers, wetlands, coastal ocean, estuaries, and tributaries that are connected to waters that are means of interstate commerce.[7] Waters used in farming and ranching activities that are not connected to other streams and rivers or ponds contained in private property and the like may be beyond the reach of the Clean Water Act.

Over time, the federal courts have had several opportunities to define exactly what qualify as waters protected by the Clean Water Act. In the landmark case of Rapanos v. United States, the U.S. Supreme Court was faced with the question of whether an isolated wetland could be regulated under the Clean Water Act. The Court ruled that wetlands may fall within the scope of the Clean Water Act, but only if they are next to or connected to a navigable waterway. Because there was no continuous connection between the wetland at issue in the Rapanos case and the rest of the waters of the United States, the Clean Water Act did not apply.[8] 

The Clean Water Act is administered by the Environmental Protection Agency, which monitors water quality and regulates compliance of environmental laws within local  governments, and has the authority to issue administrative orders under the law and seek civil or criminal penalties for violators.[9]  The Agency protects the public health and welfare by using programs based on the latest science and technology, and serves a role in monitoring, implementing and issuing permits under the Clean Water Act. However, the law allows for this authority to be delegated in part to state environmental agencies, which also play an important role in enforcing the laws.


Federal-State Cooperation Under the Clean Water Act

The Clean Water Act works to address pollution problems and promote agreement among the community by relying on a framework of cooperative federalism. In other words, both the states and the federal government play important roles in carrying out the law. The state environmental agencies and the EPA perform important functions under programs created by the Clean Water Act, including the National Pollutant Discharge Elimination System, designed to improve water quality.

The National Pollutant Discharge Elimination System, or NPDES (pronounced “Nip-Dees”) permit program controls point sources that discharge pollutants into the waters of the United States. Point sources can discharge pollutants into waters without penalty if they obtain a permit issued through the NPDES program. These permits are issued to facilities that discharge any materials directly into surface waters. Examples of facilities that commonly require NPDES permits include factories, industrial buildings, and municipal facilities.  

The Clean Water Act allows for enforcement from the EPA to the states, and NPDES compliance monitoring takes place at the state level, with state environmental agencies issuing and enforcing permits. The Environmental Protection Agency oversees the authorized state agencies to carry out the NPDES program within their borders and directly applies the program for states that chose not to delegate under the Clean Water Act. [10]


Wetland Protection, Stormwater Runoff, and Other Programs Under the Clean Water Act

The Clean Water Act requires the adoption of water quality standards, and monitors waters affected by pollution, lists impaired or threatened waters, and sets limits for total maximum daily pollution that is necessary to restore a waterbody. The law also creates a nationwide program for the protection of America’s wetland resources and the prevention of water pollution from stormwater runoff.   

The Clean Water Act requires the EPA and the states to develop and enforce drainage limitations to help protect waters. These limitations are on the quantity, rate, or concentration of a pollutant that is coming out of the point source.[11] The Clean Water Act authorizes either the Environmental Protection Agency or the individual states to set clear water quality standards that help experts determine what pollutant limitations should be applied to properly protect a body of water. The EPA must publish the state’s water quality standards if the state fails to do so. In addition, the EPA must compile a report to Congress every other year to ensure the nation’s water quality goals are being met.[12]

The Clean Water Act also includes a ban on the filling of wetlands. The goal of the Clean Water Act’s wetlands protection program is to minimize losses to waters and to compensate for unavoidable losses through restoration. Like the NPDES program, anyone seeking to dredge or fill a regulated wetland must obtain a permit under the Clean Water Act, which will not be issued if either:

1.    There is a practical alternative that is less damaging to the environment, or

2.    If the wetlands would be damaged by the activity.  

Applicants seeking permits to dredge or fill wetlands must show that steps have been taken to avoid a negative impact and that compensation will be provided for any remaining unavoidable impact.[13] The Environmental Protection Agency and the Army Corp of Engineers are both responsible for implementing the Clean Water Act’s wetland protection policies, including on-site investigations and enforcement actions against unpermitted discharges.[14]

The last key program under the Clean Water Act is the identification and regulation of toxic water pollutants. The Toxic Pollutant List includes pollutants known to be hazardous to human health. Individual pollutants known to harm human health are known as priority pollutants, and there are currently 126 priority water pollutants directly regulated by the EPA.[15] Because they are so dangerous, toxic and priority water pollutants have strict limitations. Anyone discharging these pollutants must use the best technology economically available and set pre-treatment standards to help prevent their damaging effects.[16]


Safe Drinking Water Act

The Clean Water Act does not extend to all our aquatic resources. In fact, much of the country gets its drinking water from underground water sources (such as wells), which are largely not covered by pollution prevention programs.[17] To protect the quality of our nation’s waters that are potentially public drinking waters, Congress Passed the Safe Drinking Water Act in 1974.[18] 

This law focuses on all waters that are or may be designed for drinking or for other potable use. It includes rivers, lakes, reservoirs, springs and groundwater wells. Along with federal, state, and tribal regulatory partners, the Environmental Protection Agency works to protect human health and the environment through the Safe Drinking Water Act to ensure that the laws and regulations are being obeyed.  

The Safe Drinking Water Act arose in response to public concern over the health, aesthetic and recreational impacts of deteriorating environmental conditions. In 1960, the United States Public Health Service found that more than half of drinking water systems failed to meet proper standards regarding disinfection, clarification, or water pressure. The Environmental Defense Fund also published a report in 1974 that linked cancer deaths in New Orleans to contaminated drinking water sourced from the Mississippi River.[19] By this point, Congress was compelled to act.

The Safe Drinking Water Act authorized the Environmental Protection Agency to establish standards to protect tap water. To ensure these standards are being met, the EPA conducts on-site visits and reviews information local governments submit about their public drinking water sources. If water sampling results show that a contaminant is present at an unsafe level, the EPA must work with the state to prevent or remove contaminants. Consumers affected by the contamination must be notified about the conditions of their public drinking water.[20]

Contaminants regulated by the Safe Drinking Water Act must meet certain criteria. First, the contaminant must have the potential to create adverse health effects. Second, there must be a substantial likelihood that it will appear in public water systems at a level to cause concern. Finally, the EPA or implementing state agencies may only regulate contaminants if it would reduce the public health risk.

The Safe Drinking Water Act allows the EPA to delegate authority to state environmental agencies. To date, 49 states have assumed administrative control over the supervision of public water supplies. [21]  The recent boom in natural gas from a modern extraction process known as hydraulic fracturing has created new problems in the cooperative rule established by the law. Hydraulic fracturing (sometimes referred to as “fracking”) involves the injection of massive amounts of fluid into underground areas that may contain groundwater resources. Both the injection of fluid and the potential contamination of a drinking water source are activities regulated by the Safe Drinking Water Act, but each state has created its own rules regarding hydraulic fracturing. This has raised concerns that under-regulation in this field will threaten water safety and human health, because many state agencies don’t have thorough restrictions on hydraulic fracturing activities.[22]

Conclusion

The Clean Water Act and the Safe Drinking Water Act are two federal laws that form the backbone of our nation’s system of environmental protection. One of the cornerstone programs that the EPA administers under the Clean Water Act is the National Pollutant Discharge Elimination System, which helps the nation enforce its prohibition on direct discharges of water pollution. The EPA safeguards human health by enforcing the Safe Drinking Water Act, ensuring that public drinking water sources are protected.[23] In our next module, we’ll turn to the regulation of various types of contaminants in interstate commerce, including those spread by water, air and other methods.

 



[1] EPA, History of the Clean Water Act, https://www.epa.gov/laws-regulations/history-clean-water-act (Last Visited Sept. 24, 2018).

[6] EPA, Clean Water Act Compliance Monitoring, https://www.epa.gov/compliance/clean-water-act-cwa-compliance-monitoring (Last Viewed Sept. 24, 2018).

[8] Rapanos v. United States, 547 U.S. 715 (2006).

[10] EPA, Clean Water Act Compliance Monitoring, https://www.epa.gov/compliance/clean-water-act-cwa-compliance-monitoring (Last Viewed Sept. 24, 2018).

[13] EPA, Section 404 Permit Program, https://www.epa.gov/cwa-404/section-404-permit-program (Last Viewed Sept. 24, 2018).

[14]  EPA, Clean Water Act Compliance Monitoring, https://www.epa.gov/compliance/clean-water-act-cwa-compliance-monitoring (Last Viewed Sept. 24, 2018).

[15] EPA, Toxic and Priority Pollutants Under the Clean Water Act, https://www.epa.gov/eg/toxic-and-priority-pollutants-under-clean-water-act (Last Viewed Oct. 9, 2018).

[16] 33U.S.C. § 1317(a)(2)

[18] 42U.S.C. §300f et seq. (1974)

[19] Richard Weinmeyer, Annalise Norling, Margaret Kawarski, and Estelle Higgins, The Safe Drinking Water Act of 1974 and Its Role in Providing Access to Safe Drinking Water in the United States, 19 AMA Journal of Ethics 1018, 1019 (2017) available at https://journalofethics.ama-assn.org/sites/journalofethics.ama-assn.org/files/2018-05/hlaw1-1710.pdf.)

[20] EPA, Safe Drinking Water Act (SDWA) Compliance Monitoring, https://www.epa.gov/compliance/safe-drinking-water-act-sdwa-compliance-monitoring (Last Viewed Sept. 25, 2018).

[21] Richard Weinmeyer, Annalise Norling, Margaret Kawarski, and Estelle Higgins, The Safe Drinking Water Act of 1974 and Its Role in Providing Access to Safe Drinking Water in the United States, 19 AMA Journal of Ethics 1018, 1020 (2017) available at https://journalofethics.ama-assn.org/sites/journalofethics.ama-assn.org/files/2018-05/hlaw1-1710.pdf.)

[22] Angela C. Cupas, The Not-So-Safe Drinking Water Act: Why We Must Regulate Hydraulic Fracturing at the Federal Level, 33 Wm. & Mary Envtl. L. & Pol'y Rev. 605 (2009) (available at http://scholarship.law.wm.edu/wmelpr/vol33/iss2/7).

[23] EPA, Water Enforcement, https://www.epa.gov/enforcement/water-enforcement (Last Viewed Sept. 25, 2018).

 

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