The Clean Water Act
The basis of the CWA was enacted in 1948 and was called the Federal Water Pollution Control Act, but the Act was significantly reorganized and expanded in 1972. "Clean Water Act" became the Act's common name with amendments in 1977. The goal of the Clean Water Act is to restore and maintain the chemical, physical and biological integrity of the nation’s waters.
- Eliminate discharge of pollutants into navigable waters by 1985.
- Achieve water quality, which provides for the protection and propagation of fish, shellfish and wildlife and provides for recreation in and on the water by July 1, 1983.
- Prohibit the discharge of toxic pollutants in toxic amounts
- Provide financial assistance for public wastewater treatment
- Develop area-wide waste treatment management plans
- Invest in technology sufficiently to result in elimination of discharges
- Develop and implement programs for the control of nonpoint sources of pollution in an expeditious manner
Clean Water Act programs have been developed at the federal and state levels to meet these goals. Oregon has been delegated to implement the Clean Water Act within the State of Oregon. Oregon’s Department of Environmental Quality (DEQ) is the state agency primarily charged with implementing the Clean Water Act in Oregon.
Water Quality Standards
Under the Clean Water Act, states are required to establish water quality standards that define the goals and pollution limits for all waters within their jurisdiction. Water quality standards determine which healthy waters need protection, which waters must be restored and how much they need to be restored. Standards are waterbody specific. The Rogue Bason for example has specific water quality standards.
There are three main components to establishing water quality standards:
- Designated Uses: Human uses and ecological conditions that are officially recognized and protected. States must designate one or more uses for each waterbody. For example, parts of the Rogue have designated uses including fishing, water contact recreation, water supply, aesthetic quality and boating.
- Water quality Criteria: Descriptions of the conditions considered necessary to protect each designated use. For example, there is water quality criteria for temperature to safeguard salmon so that the Rogue can protect the beneficial use of fishing.
- Antidegradation policy: A required process for protecting all existing uses, keeping healthy waters healthy and giving strict protections to outstanding waters.
Permitting Pollution: The National Pollutant Discharge Elimination System
Under the Clean Water Act, all point source discharges of pollution require a permit. A “point source” is any discernible, confined and discrete conveyance” of pollutants to a waterbody. This basic principle is the foundation of water pollution prevention and control in the U.S. Anyone who discharges a pollutant from a point source without a Clean Water Act permit is breaking the law. However, it is perfectly legal to discharge a pollutant to public waters if you have a valid permit and comply with its terms. This system of permits is known as the National Pollutant Discharge Elimination System, or NPDES permits.
Activities that require a permit include municipal sewage treatment plants, a variety of industrial activities such as mining, manufacturing and processing, confined animal feeding operations and stormwater runoff form industrial sites, construction sites and urbanized areas.
There are two different types of permits: individual permits and general permits. Individual permits are site-specific and usually much more detailed than a general permit. General permits are much more common and are developed for numerous categories of activity within a political or geographic boundary that share similar operations and discharges, require similar limits of operating conditions and require similar monitoring requirement.
An example of an individual permit in the Rogue Basin is the Medford Sewage Treatment Plant and a general permit example is a statewide permit for suction dredging in rivers. There are approximately 400 NPDES permits currently issued in the Rogue Basin. There are opportunities for public involvement in the permitting process and Rogue Riverkeeper is engaged in various ways, including commenting on draft permits and permit renewals, identifying facilities that should be permitted but are not and reviewing compliance with existing permit limits.
NPDES stormwater permits
Our drinking water supplies, shellfishing waters and bathing beaches are fouled by uncontrolled pollution when rainwater and snowmelt wash over city streets, parking lots, and suburban lawns and pick up toxic chemicals, disease-causing organisms, and dirt and trash. This problem is called urban stormwater pollution. Recent studies have found that urban stormwater rivals and in some cases exceeds sewage plants and large factories as a source of damaging pollutants.
There are three types of stormwater permits:
- Construction: Construction sites are one of the most common ways that stormwater runoff laden with sediment enters stormdrains and creeks. This is bad for fish because the sediment clogs fish gills and destroys fish spawning habitat.
- Industrial: Facilities that engage in a variety of industrial activities pollute stormwater before it enters streams, including hazardous waste disposal facilities, landfills, manufacturing and transportation facilities.
- Municipal/Urban: City streets act as conveyances for stormwater pollution, picking up a variety of toxic pollutants and dumping them into nearby streams. Many studies over the decades show that as impervious surface increases in an area, water quality in adjacent waterways decreases. Runoff pollution carries a wide variety of contaminants as it runs across rooftops, roads, parking lots, baseball diamonds, construction sites, golf courses, lawns, and other surfaces in our cities and suburbs. The oily sheen on rainwater in roadside gutters is but one common example of urban runoff pollution.
Identifying Problems and Restoring Watersheds
Threatened and Impaired Waters List
The Clean Water Act calls for states to take two distinct steps to address problems in the nation’s waters: 1) Identify the problems for each waterbody and 2) Develop a plan to restore the integrity of each waterbody that has problems.
The Clean Water Act requires each state to list its polluted waterbodies and to set priorities for cleaning them up. Waterbodies qualify for the “impaired waters list” when they are too polluted or otherwise degraded to support their designated uses. The impaired waters list is also referred to as the “303(d) list,” named after the section in the Act that requires it. The state submits its list to the U.S. EPA every two years.
Total Maximum Daily Loads (TMDLs)
Once waterbodies are listed on the impaired list, DEQ is required to develop a restoration plan, also known as a Total Maximum Daily Load (TMDL) that designates pollutant caps and management and restoration plans. The cap is a calculation of the maximum amount of a pollutant that a waterbody can receive and still safely meet water quality standards. The plan component describes how the cumulative contribution from every source of the pollutant must be reduced to a level that is less than the pollutant cap. This reduction is based on restoring or maintaining the waterbody so it is safe for people and wildlife. TMDLs can address one or more pollutants in a waterbody.
We have several TMDLs in the Rogue Basin that are designed to address temperature and bacteria violations of water quality standards. In addition, we have pollution problems that are listed on the 303(d) impaired waters list that still need TMDLs developed, such as toxic algae in Lost Creek Reservoir and Willow Lake.
State Oversight of Federal Permits (“401 water quality certification”)
In order to ensure that federal activities will not violate state water quality standards, the Clean Water Act gives states and some tribes the authority to deny or place conditions on activities requiring a federal permit to discharge a pollutant to public waters. In other words, projects that require federal approval must receive water quality certification from Oregon DEQ. This authority is known as “water quality certification” under section 401 of the law.
DEQ can certify a project if they determine the it will not violate water quality standards, certify the project with conditions necessary to comply with the standards, or deny the project because the violation of water quality standards could not be avoided or mitigated.
The 401 water quality certification is most often applies to dredge and fill activities that require a 404 permit and private hydropower dam operations that require federal permits. There is a public comment process for water quality certification applications.
Protecting Wetlands and Streams from Dredging and Filling (Section 404)
Section 404 of the Clean Water Act regulates activities that dredge of fill public waters, such as urban development, dam removal, LNG development or mining.
The Army Corps of Engineers (Corps) is the lead agency to issuing and enforcing 404 permits owing to its historical jurisdiction over navigable waters. The EPA plays an advisory and oversight role.
Section 404 requires anyone who proposes an activity that would discharge dredged or fill materials to U.S. waters is required to apply for and obtain a permit from the Corps. The permit process requires the applicant to demonstrate that they have avoided impact, minimized impact and mitigated any impact. There is a public comment process for permit applications.
Nonpoint Source Pollution
In 1987, section 319 of the Clean Water Act was added to control nonpoint source, or “runoff” pollution. Nonpoint source pollution is defined as rainfall or snowmelt that moves over and through the ground carrying pollutants into lakes, rivers, streams, wetlands, estuaries, other coastal waters and groundwater.
Section 319 initiated three strategies for addressing polluted runoff, which are requiring states to prepare assessments of nonpoint source pollution, develop management strategies for address those problems and create a grant program that allows EPA to fund state programs for nonpoint source assessment and control.
Influencing the Process: What is the Public’s Role?
Public participation leads to better process, which leads to stronger environmental laws, which leads to better water quality. The public needs to play an active role in permitting processes including commenting on permits, defending important watershed values, offering alternatives to regulators and permit applicants on how impacts can be avoided and insist on sufficient mitigation.
Click here to sign up for Rogue Riverkeeper eNews and learn about public comment opportunities on Clean Water Act permits in the Rogue Basin.