What is the Clean Water Act?
The Clean Water Act (CWA) is a U.S. federal law that regulates the discharge of pollutants into the nation’s surface waters such as lakes, rivers, streams, wetlands, and coastal areas. The CWA originally began life back in 1948 as the Federal Water Pollution Control Act. After a series of amendments in the 1970s it became known as the Clean Water Act. It allowed the U.S. Environmental Protection Agency (EPA), to establish water quality standards, handle enforcement, and help state and local governments develop their own pollution control plans. The CWA does not protect the use of surface water for drinking purposes since that is covered by a different legislation, the Safe Drinking Water Act. Instead, the mission of the CWA is to eliminate the disposal of untreated wastewater from municipal and industrial sources to make American waterways safe for swimming and fishing.
Over the years, the focus from the CWA has expanded from not only “point source” pollution but also “non-point source” pollution (e.g. agricultural runoff, diffuse groundwater flow into streams). Additionally, for several decades the U.S. Government has wrestled with the CWA’s definition of “navigable waters” and “Waters of the United States” with little agreement or clear guidance. Recent activity in the news is the latest in this long history of attempting to clarify authority provided by the CWA.
The CWA in Recent News
1. The Repeal of the 2015 CWA Rule Defining “Waters of the United States”
In September of 2019, the EPA announced the repeal (or roll-back) of an update to the CWA that gave them broader control of waterways and set limits on pollutants. The 2015 regulation, called the Waters of the United States rule, clarified the definition of “Waters of the United States” under the CWA and allowed for greater government control of lakes, streams, and wetlands. The previous definition of “Waters of the United States” mainly covered large rivers, their tributaries, and adjacent wetlands. The 2015 update expanded those regulations to include smaller streams and wetlands. Despite the September 2019 repeal and due to on-going litigation, the 2015 rule is still in effect in 22 states including Pennsylvania, Maryland, Delaware, New Jersey, Ohio, and New York.
2. Now Supreme Court Will Not Hear Contaminated Groundwater Case Under the CWA
Earlier this year, the Supreme Court had agreed to hear a case involving whether pollution that moves through groundwater to surface water should be covered under the CWA. Typically, discharges to surface water require permits under the CWA, while discharges to groundwater are monitored under different laws. In 2018, the U.S. Court of Appeals for the Ninth Circuit ruled that a Hawaiian municipal wastewater facility violated the CWA when treated wastewater infiltrated the groundwater, and some entered the Pacific Ocean (Maui County vs Hawai’i Wildlife Fund). A similar decision came out of the U.S. Court of Appeals for the Fourth Circuit regarding a case involving an underground pipeline in South Carolina that had burst in 2014, which caused thousands of gallons of gasoline to spill and enter nearby rivers, lakes, and wetlands. However, the U.S. Court of Appeals for the Sixth Circuit took a different stance when pollutants from coal ash retention ponds in Kentucky leaked into groundwater, and ultimately local waterways. They declared only pollutants added directly to navigable bodies of water were covered under the CWA.
This debate has also been an ongoing discussion in Washington D.C. In 2018, the EPA requested information on this topic and the National Ground Water Association prepared comments that were filed, while noting states are best suited to regulate groundwater equality. However, in the Maui County case, the Maui County council recently voted to settle their case thereby avoiding a Supreme Court case where the outcome was very uncertain.
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