Transcript Document

Introduction to
the Clean Water Act
and
§ 401 Certifications
Catawba~Wateree Relicensing Coalition
Hydropower Water Quality
Certification Workshop
7 November 2003
Kim Diana Connolly
Univ. of South Carolina
School of Law
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 1
Presentation Overview
• Clean Water Act History/Overview
– Pre-1972
– 1972 and subsequent Acts
– CWA Statutory framework
• Section 401
– Statutory language
– Regulatory interpretation
– Court interpretation
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 2
Intro. to the Clean Water Act
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 3
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
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 4
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 nation’s
waters
• Political momentum for sweeping change in
regulation of the nation’s waters mirrored other
movement toward increased environmental
protection in the late 1960s and early 1970s
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 5
FWPCA Amendments of 1972
• Objective: “to restore and maintain the chemical,
physical, and biological integrity of the Nation’s 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, R&D, non-point sources
• Cooperative Federalism: combines technology based
controls/effluent limitations with water quality standards
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 6
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
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 7
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 nation’s waters
• Sections 309, 505: enforcement mechanisms
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 8
Focus: § 401
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 9
§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)
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 10
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
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 11
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)
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 12
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
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 13
Section 301
• Establishes timetable
• Permissible modifications for certain
pollutants and point sources
• Review and revision of effluent
limitations at least every 5 years
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 14
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”
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 15
Section 303 continued
• Federal government may accept or reject the
state’s 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
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 16
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.
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 17
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).
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 18
Cases interpreting § 401 in the
hydroelectric context
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 19
PUD No.1 Jefferson County v.
Washington Department of
Ecology, 511 U.S. 700 (1994)
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 20
American Rivers, Inc. v. Federal
Energy Regulatory Commission,
129 F.3d 99 (2d Cir. 1997)
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 21
Alabama Rivers Alliance v.
Federal Regulatory Commission,
325 F.3d 290 (D.C.Cir. 2003)
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 22
Upshot on Section 401
Section 401 provides states with two
distinct powers/obligations
1) authority indirectly to deny federal
permits or licenses by withholding
certification; and
2) authority to impose conditions upon
federal permits by placing limitations
on certification
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 23
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/h2
o-3.cfm?&CFID=10835006&CFTOKEN=76814638
• Congressional Research Service, Clean Water Act: A
Summary of the Law,
http://www.ncseonline.org/NLE/CRSreports/water/h2
o-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.
htm
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 24
Why today’s work is important
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 25
Contact Information
Professor Kim Diana Connolly
Director, Environmental Law Clinic
University of South Carolina School of Law
Main & Greene Streets
Columbia, SC 29208
Phone: 803/777-6880
Fax: 803/777-3401
Email: [email protected]
Introduction to the Clean Water Act and 401 Certifications
Kim Diana Connolly, 7 Nov 2003, Slide 26