Introduction to the Clean Water Act and 401 Certifications Kim Diana Connolly, 7 Nov 2003, Slide 1

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Introduction to the Clean Water Act and 401
Certifications

• CatawbaWateree Relicensing Coalition
• Hydropower Water Quality Certification Workshop
• 7 November 2003
• Kim Diana Connolly
• Univ. of South Carolina
• School of Law

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Presentation Overview

• Clean Water Act History/Overview
• Pre-1972
• 1972 and subsequent Acts
• CWA Statutory framework
• Section 401
• Statutory language
• Regulatory interpretation
• Court interpretation

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Intro. to the Clean Water Act

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FWPCA of 1948

• The Federal Water Pollution Control Act (FWPCA)
  of 1948 established framework for a federal
  system of water pollution control, implemented
  through state-based water quality standards
  (states had burden of proving harm by regulated
  pollutants)
• Did not supercede the existing Rivers and Harbors
  Act of 1899, which focused (focuses) on
  maintaining navigability

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Momentum toward 1972 Act

• Under the 1948 Federal Water Pollution Control
  Act, among other things
• Lake Erie was declared dead,
• The Cuyahoga River caught on fire
• Major sewer systems were closed
• The Hudson River was closed to fishing
• The Rivers and Harbors Act of 1899 was used in
  place of the FWPCA to protect the nations waters
• Political momentum for sweeping change in
  regulation of the nations waters mirrored other
  movement toward increased environmental
  protection in the late 1960s and early 1970s

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FWPCA Amendments of 1972

• Objective to restore and maintain the
  chemical, physical, and biological integrity of
  the Nations waters. Sec. 101(a)
• Goals
• (1) eliminate discharge of pollutants into U.S.
  waters by 1985
• (2) make water quality in U.S. fishable and
  swimmable wherever attainable by 1983
• (3) prohibit discharge of toxic pollutants in
  toxic amounts
• (4-7) funding, planning, RD, non-point sources
• Cooperative Federalism combines technology
  based controls/effluent limitations with water
  quality standards

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Subsequent major CWA amendments

• 1977 Amendments largely in response to
  litigation over failure to meet statutory
  deadlines on toxic pollutants, incorporated a
  strategy for control of toxic pollutants

• 1987 Amendments established Toxic Hot Spots
  program, set a timetable for the regulation of
  stormwater, and established a non-point source
  management program

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CWA Statutory Framework

• Section 301 prohibits non-compliant discharge
• Section 402 creates permit program to authorize
  and regulate certain discharges (National
  Pollutant Discharge Elimination System permits)
• Sections 301, 304, 306, 307 guidelines and
  effluent limitations for regulated discharges
• Sections 303, 305, 401, 402 system of
  federal/state implementation
• Section 311 system for preventing, reporting,
  and responding to spills
• Section 404 permit program governing discharge
  or placement of dredged or fill material into the
  nations waters
• Sections 309, 505 enforcement mechanisms

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Focus 401
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401 Water Quality Certification

• What the Clean Water Act actually requires Any
  applicant for a Federal license or permit to
  conduct any activity . . . which may result in
  any discharge into the navigable waters, shall
  provide the licensing or permitting agency a
  certificate from the State . . . That any such
  discharge will comply with the applicable
  provisions of the Clean Water Act. 33 U.S.C.
  1341 (Section 401)

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Section 401 Redux

• Certification is thus required for
• issuance of a federal license or permit
• for a facility or activity that may result in a
  discharge
• Certification is based on state water quality
  standards
• State authority is based on 40 C.F.R. 131.4

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Components of Section 401 Water Quality
Certification

• State issued water quality certifications must
  indicate compliance with state-based effluent
  limitations and water-quality based standards
• States can set conditions on certifications
• Conditions shall include any other appropriate
  requirement of state law 401(d)
• 401 conditions become mandatory conditions on
  whatever federal decision is involved (e.g.
  hydroelectric license)

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Federal Role in 401 Certifications

• EPA sets certain standards and thresholds upon
  which state standards are based (40 C.F.R. Parts
  130 and 131)
• Once state standards are in place, federal review
  and control is limited (there may be, however, a
  lot of interaction with relevant agencies)
• Appeals of 401 certifications are through state
  courts

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Section 301

• Establishes timetable
• Permissible modifications for certain pollutants
  and point sources
• Review and revision of effluent limitations at
  least every 5 years

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Section 303

• Contains an antidegradation policy requiring
   that state standards be sufficient to maintain
  existing beneficial uses of navigable waters,
  preventing their further degradation.
• Requires states to submit water quality standards
  to federal government
• State water pollution control agencies required
  to hold public hearings at least every three
  years for the purpose of reviewing applicable
  water quality standards

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Section 303 continued

• Federal government may accept or reject the
  states proposed standards
• Requires states to identify those waters within
  its boundaries for which the effluent limitations
  required by section 301. . . are not stringent
  enough to implement the applicable water quality
  standard
• States must establish load estimates in relation
  to the effluent limitations

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Other potential water quality regulations

• The water quality certification requirements
  found in section 401 are in addition to any
  requirements established by the states which are
  automatically incorporated into the 401
  certification requirements.

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Hydro licensing requires water quality
certification

• Federal Energy Regulatory Commission rules
  require license applications to contain a water
  quality certification, evidence of a pending
  request for certification, or evidence that the
  state has waived certification. 18 C.F.R.
  4.34 (b)(5).

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Cases interpreting 401 in the hydroelectric
context
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PUD No.1 Jefferson County v. Washington
Department of Ecology, 511 U.S. 700 (1994)
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American Rivers, Inc. v. Federal Energy
Regulatory Commission, 129 F.3d 99 (2d Cir. 1997)
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Alabama Rivers Alliance v. Federal Regulatory
Commission, 325 F.3d 290 (D.C.Cir. 2003)
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Upshot on Section 401

• Section 401 provides states with two distinct
  powers/obligations
• authority indirectly to deny federal permits or
  licenses by withholding certification and
• authority to impose conditions upon federal
  permits by placing limitations on certification

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Web sites with helpful information on the CWA or
401 process

• Congressional Research Service, Clean Water Act
  Section 401 Background and Issues
  http//www.ncseonline.org/NLE/CRSreports/water/h2o
  -3.cfm?CFID10835006CFTOKEN76814638
• Congressional Research Service, Clean Water Act
  A Summary of the Law, http//www.ncseonline.org/NL
  E/CRSreports/water/h2o-32.cfm
• River Network, http//www.cleanwateract.org/pages/
  c8.htm
• Cleanwater.gov, http//www.cleanwater.gov/
• American Rivers, Clean Water Act Section 401
  http//www.amrivers.org/hydropowertoolkit/cwa401.h
  tm

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Why todays work is important
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Contact Information

• Professor Kim Diana Connolly
• Director, Environmental Law Clinic
• University of South Carolina School of Law
• Main Greene Streets
• Columbia, SC 29208
• Phone [phone]
• Fax [phone]
• Email connolly_at_law.sc.edu