ARE 309 - Fall 2005 Class #12 - Nov. 2 Clean Water Act ... · Page 5-2-3 ARE 309 - Fall 2005 Class...

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ARE 309 - Fall 2005Class #12 - Nov. 2 Clean Water Act - Part 2

© 2005 J.M. Kuszaj

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Clean Water Act

ARE 309 - Fall 2005Class #12 (Nov. 2, 2005)

Clean Water Act – Part 2

Reading Assignment 11SWANNC Case

Southview Farms Case

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Clean Water Act

Tonight• RA Quiz #11 (Hand In)• Lecture Quiz #3• The Law Behind The News• Lecture: Clean Water Act - Part 2

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Clean Water Act

Approved Research Papers

1. Chadzutko2. Christian3. Church4. Janneh5. O’Donoghue

6. Smith7. Straughn8.Nelson9.Walton10.

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Clean Water Act

Public Meeting Option

• Wednesday, Nov. 9– 12:00 Noon - Water Quality Committee– 4:00- Air Quality Committee

• Archdale Building, Downtown• Directions & Agenda• http://h2o.enr.state.nc.us/admin/emc/

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Clean Water Act

In The News This Week

• “Top Cheney Aide Libby Indicted,Quits Post”

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Clean Water Act

The Law Behind TheNews

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© 2005 J.M. Kuszaj

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Clean Water Act

18 USC Section 1001

• Whoever in any matter within the jurisdiction ofthe executive….branch of the Government of theUnited States…

makes any materially false, fictitious, orfraudulent statement or representation

shall be fined or imprisoned not more than 5years or both.

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Clean Water Act

In The News This Week

• “Halloween Supreme CourtNomination is a Scary Choice”

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Clean Water Act

The StoryFrom EarthJustice*

• “Judge Alito could undermine lawsthat safeguard health andenvironment.”

* “Earthjustice is a non-profit public interest law firm dedicatedto protecting the magnificent places, natural resources, andwildlife of this earth and to defending the right of all people to ahealthy environment.”

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Clean Water Act

Example #1

• Judge Alito wrote a dissent in theU.S. v. Rybar case that would haveruled that a federal law prohibitingthe transfer or possession ofmachine guns was unconstitutional.The Supreme Court refused toreview the case.

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Clean Water Act


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Clean Water Act

Example #2

• In Public Interest Research Group(PIRG) v. Magnesium Elektron(MEI), Judge Alito joined in a 2-1ruling gutting citizens’ access tocourts under the Clean Water Act.

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© 2005 J.M. Kuszaj

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Clean Water Act


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Clean Water Act

Regulatory MechanismTo Control Point Sources

• It is unlawful* for any person• To discharge• Any pollutant• From a point source• Into “navigable waters” of the US• Without an NPDES permit

– Containing technology -based effluent limitations

* Section 301 and 402 of the CWA

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Clean Water Act

Point Sources

• Pipes

• Ditches

• Channels

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Clean Water Act

CAFODefined

• Concentrated– Based on # of animals

• Animal FeedingOperation

– Animals present on lot >45 days/year

– Crops not sustained overthat lot

See : Southview Farm Case

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Clean Water Act

Not Point SourcesExempted By Law

• Agricultural runoff

• Agricultural irregation

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Clean Water Act

Navigable WatersOf the United States

• Not specifically defined in the CWA

• Defined by regulations to include “alltraditionally navigable waters, allinterstate waters, all tributaries ofsuch waters”

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© 2005 J.M. Kuszaj

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Clean Water Act

Discharge of PollutantsTwo Methods

• Direct

• Indirect

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Clean Water Act

Direct Discharge

Water goes directly into receiving stream

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Clean Water Act

Indirect Discharge

1. Water goes first into a PubliclyOwned Treatment Works [POTW]

2. Then To SurfaceWaters

IndirectDischarger

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Clean Water Act

NPDES Permit ?

Indirect Discharger

POTW

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Clean Water Act

Point Source PermitsFor Direct Dischargers

• NPDES Permit

• Issued by

–EPA or

–Delegated State [NC is delegated]

• For Direct Discharge of Wastewater

• Term: Five years

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Clean Water Act

Point Source PermitsFor Indirect Dischargers

• Pretreatment Permit

• Issued by– POTW

• For Discharge of Wastewater to thePOTW

• Publicly Owned Treatment Works

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© 2005 J.M. Kuszaj

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Clean Water Act

An NPDES PermitWhat Does It Contain

• Effluent Limitations

• Monitoring

• Reporting

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Clean Water Act

Effluent Limitations

• End of the pipe pollutant limits

• Technology-based

• Pollutant specific

• For categories of industries

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Clean Water Act

Periodic Reports

• Discharge

• Monitoring

• Reports

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Clean Water Act

Beyond CWA Technology


• Water Quality StandardsIf needed

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Clean Water Act

Setting NPDES Limits


• Water Quality StandardsIf needed

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Clean Water Act

The TMDL Program

• Total

• Maximum

• Daily

• Load

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© 2005 J.M. Kuszaj

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Clean Water Act

Section 303(d) of CWA• States must develop lists of impaired waters

–“303 (d) list”• Impaired means

–does not meet water quality standards evenafter application of technology based controls

• States must rank waters on the impaired list• Apply TMDLs

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Clean Water Act

What is A TMDL ?• Maximum amount of a pollutant

• An impaired water body can receiveand still meet water quality standards

• Allocated among point & nonpointsources

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Clean Water Act

What About NorthCarolina ?• June 1998 Settlement between EPA

and Environmental Plaintiffs

• EPA agreed by letter to ensuredevelopment of a TMDL for theNeuse River

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Clean Water Act

What is TMDL for Neuse

• 30 % reduction forpoint sources

• 30 % reduction fornonpoint sources

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Clean Water Act

Non-Point SourceWhat Is It ?

• Not defined in CWA

• Defined by what it is not– anything that is not a point source

• Working Definition– “Diffuse pollution source without a single point

of origin and not introduced into a receivingstream from a specific outlet”

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Clean Water Act

NPS Sources• Agricultural Operations

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© 2005 J.M. Kuszaj

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Clean Water Act

NPS Sources• Urban Stormwater Runoff

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Clean Water Act

NPS Sources• Silviculture (Forestry)

Forest cover is generally excellent for protection of water quality.However, water quality problems can occur from improper harvestingtechniques such as clearing next to streams and not using adequateBMPs for sediment control

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Clean Water Act

NPS Sources• Construction activities

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Clean Water Act

NPS Sources• Land Applications of Wastewater

This includes onsite wastewater systems (e.g., septic systems),spray irrigation, sludge disposal and landfills.

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Clean Water Act

NSR Sources• Atmospheric Deposition

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Clean Water Act

NPS Sources• People

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© 2005 J.M. Kuszaj

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Clean Water Act

Main NPS Pollutants1. Sediment

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Clean Water Act

Main NPS Pollutants2. Nutrients

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Clean Water Act

Main NPS Pollutants3. Nitrates

• Fertilizers and manure

• Animal operations

• Municipal wastewater and sludge•• Septic systems

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Clean Water Act

Controlling NPS• Under the CWA there is no

comprehensive, mandatory,technology-driven regulatory schemeapplicable to non-point sources

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Clean Water Act

Controlling NPS• CWA places primary regulatory

responsibility for non-point sourceswith states because of theassociated land use issues

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Clean Water Act

• Best Management Practices (“BMPs”)

• Pollution Prevention

• Permits (For Non-Discharge Systems)

NPS ControlsThree Mechanisms

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© 2005 J.M. Kuszaj

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Clean Water Act

Regulatory MechanismAs required by States

• Best• Management• Practices

Land management practices that have been agreed uponas environmentally acceptable.

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Clean Water Act

BMPs• Agricultural Operations

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Clean Water Act

Agricultural BMPs

• http://www.state.tn.us/agriculture/nps/bmpa.html

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Clean Water Act

Non- Discharge Systems

• Facilities that do not dischargewaste to the surface water

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Clean Water Act

ExampleAnimal Waste Management Systems

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Clean Water Act

Non-Discharge Systems

• North Carolina State program– 15A NCAC 2H .0200– No federal counterpart

• For wastewater systems thatdischarge

– onto or below the surface of the land

• Require individual or generalNorth Carolina Non-DischargePermits

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Clean Water Act

Non-Discharge Permit

• State Only Permit

• Not an NPDES Permit– Why Not ?

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Clean Water Act


• Mismanaged non-dischargesystems can become a directdischarge systems

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Clean Water Act


• Mismanaged non-dischargesystems can become a directdischarge systems

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Clean Water Act

Animal Operations in NCWhat Kind of Permit Is Required ?

• Size and Neatness Count

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Clean Water Act

NPDES Permit as CAFOLiquid manure system with:• Swine

– 2,500 or more > 55 lbs or– 10,000 < 55 lbs

• Cattle– 1,000 confined beef or– 700 mature dairy

• Poultry– 30,000 laying hens or broilers

Includes approximately 1041 facilities in NC

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Clean Water Act

Non-Discharge NC PermitLiquid manure system with:• Swine

– 250

• Cattle– 100

• Poultry– 30,000

Includes approximately 1437 facilities in NC

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© 2005 J.M. Kuszaj

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Clean Water Act

Breakdown of Permitted SwineFacilities in NC

NPDES State

• NPDES - 1019• State - 1203

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Clean Water Act

Wetlands Defined

• Areas that are inundated or saturated bysurface or groundwater

• At a frequency and duration sufficient tosupport

• Vegetation typically adapted for life insaturated soil condition

Examples: swamps, marshes and bogs

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Clean Water Act

When Is Land “Wet”Wetland Delineation

• Army Corps of Engineers– Decides Using 1987 Manual

• Agricultural Lands– Natural Resources Conservation Service

(NRCS)– Using Manual set forth in National Food

Security Act

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Clean Water Act

The Clean Water ActThe Basic Rule

• It is unlawful for any person• To discharge• Any pollutant• From a point source• Into “navigable waters” of the US• Without Permit

– NPDES Permit For Surface Water– Section 404 for Wetlands

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Clean Water Act

Exempt ActivitiesFrom 404 Permitting

• Normal farming activities– Only established & ongoing operations

» plowing ,harvesting ,seeding minor drainage cultivating

• Silviculture– tree farming

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Clean Water Act

The 404 Permit ProcessTime-Consuming & Expensive

• COE must consult other agencies– U.S. Fish and Wildlife Service ,Soil Conservation

Service, the National Marine Fisheries Service, theBureau of Reclamation, some state agencies, and thepublic before issuing a permit.

• Consider practicable alternatives that are lessdamaging to the environment than theproposed discharge

• Mitigation for wetland Loss

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© 2005 J.M. Kuszaj

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Clean Water Act

More Than Section 404State 401 Water Quality Certification

• Required if a Section 404 permit isneeded from the COE

• Issued by State Division of WaterQuality

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Clean Water Act

What is a RegulatedWetland ?• One of the most disputed issues

under the CWA

• Subject to much litigation

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Clean Water Act

The Clean Water ActThe Basic Rule

• It is unlawful for any person• To discharge• Any pollutant• From a point source• Into “navigable waters” of the US• Without Permit

– NPDES Permit For Surface Water– Section 404 for Wetlands

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Clean Water Act

When Are Wetlands“Navigable Waters ?

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Clean Water Act

Navigable WaterDefined In CWA

• As “Waters of the United States”

• But No further definition in the Act

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Clean Water Act

Waters of the United StatesAgency’s Definition [33 CFR 328.3]

• All traditionally navigable waters• All interstate waters• All tributaries of such waters• Territorial seas• Wetland adjacent to all of the

above• Certain isolated waters used by

migratory birds

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© 2005 J.M. Kuszaj

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Clean Water Act

The SWANCC Decision• Solid Waste Agency of Northern

Cook County v US Army Corps ofEngineers

• United States Supreme Court

• 121 S. Ct. 675 (January 9, 2001)

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Clean Water Act

The SWANCC DecisionThe Facts

• The Solid Waste Agency ofNorthern Cook County (SWANCC)

• Wanted To Build a Landfill

• At an abandoned sand & gravel pit

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Clean Water Act

The SWANCC DecisionMore Facts

• Some of the pits containedseasonal water

• The pits were not connected toany surface water

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Clean Water Act


• COE said filling pits required CWA404 Permit

• COE Then Denied the Permit

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Clean Water Act


• COE said that the gravel pits were“water of the United States” underCWA

• Solely because migratory birdsused the pits

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Clean Water Act

The SWANCC DecisionThe Issues

• Clean Water Act Issue– Does the COE have jurisdiction under CWA of

wholly intrastate waters because such watersare used by birds that cross state lines

• Constitution Issues– If the CWA grants jurisdiction, does it do so in

violation of the Commerce Clause

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© 2005 J.M. Kuszaj

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Clean Water Act

The SWANCC DecisionThe Holding

• Clean Water Act– The CWA does not apply to non-navigable,

isolated, intrastate waters use as habitatby migratory birds. ISOLATED WETLANDS

• Constitution– No need to decide whether since the CWA

does not apply to isolated non-navigablewaters under the migratory bird rule

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Clean Water Act

SWANCCWhy Is This Case Important ?

• Read in its broadest terms, itwould limit CWA jurisdiction toonly interstate waters that werenavigable in fact. [This has yet tohappen]

• Created loophole in federaljurisdiction, and hence States’jurisdiction

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Clean Water Act

Can NC RegulatedWetland ?

• Controversial Issue

• Waters of the State do not list“wetlands”

• EMC Passed Rules in 1996

• NC Court of Appeals Rules Yes in2003

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Clean Water Act

NC’s Response To SWANCCIsolated Wetland Rules

• Isolated Wetlands Waters of TheState

• State Permit Need To DischargeWaste

• Coordinate With COE– Isolated -- State Permit– Non-Isolated -- 404/401

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Clean Water Act

Activities JurisdictionThe Tulloch Rule

• 1998 Court Decision(DC Circuit)

• “Incidental fallback"from dredging notdischarge ofpollutants under 404

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Clean Water Act

Activities JurisdictionThe Tulloch Rule

• Led to widespread ditching anddraining of wetlands without 404 orState permits

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© 2005 J.M. Kuszaj

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Clean Water Act

Tulloch RuleNorth Carolina Response• March 1, 1999

• State Policy

• Incidental fallback violates statewetland standards and is illegalunder state law.

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Clean Water Act

Clean Water Act - Spills

• Preventing

• Reporting

• Responding

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Clean Water Act

CWA Spill ReportingSection 311

• Any person• In charge of a facility• Discharging Harmful Quantity• Of Oil or Listed Hazardous

Substance• To navigable waters or adjoining

shoreline• Must immediately report to NRC

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Clean Water Act

CWA Spill Prevention

• Facilities• Handling Certain Quantities• Of Oil• Must Develop and Maintain• SPCC Plan

– Spill Prevention Control and CountermeasurePlan

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Clean Water Act

CWA Spill Responding

• Person• Spilling• A reportable quantity• Of Oil or listed hazardous

substances• Is “strictly liable”• For lean up ost and natural

resource damages

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