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Introduction to the Clean Water Act and § 401 Certifications

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. Presentation Overview. Clean Water Act History/Overview Pre-1972

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Introduction to the Clean Water Act and § 401 Certifications

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  1. 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

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

  3. Intro. to the Clean Water Act

  4. 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

  5. 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

  6. 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

  7. 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

  8. 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

  9. Focus: § 401

  10. §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)

  11. 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

  12. 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)

  13. 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

  14. Section 301 • Establishes timetable • Permissible modifications for certain pollutants and point sources • Review and revision of effluent limitations at least every 5 years

  15. 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”

  16. 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

  17. 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.

  18. 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).

  19. Cases interpreting § 401 in the hydroelectric context

  20. PUD No.1 Jefferson County v. Washington Department of Ecology, 511 U.S. 700 (1994)

  21. American Rivers, Inc. v. Federal Energy Regulatory Commission, 129 F.3d 99 (2d Cir. 1997)

  22. Alabama Rivers Alliance v. Federal Regulatory Commission, 325 F.3d 290 (D.C.Cir. 2003)

  23. 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

  24. 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?&CFID=10835006&CFTOKEN=76814638 • Congressional Research Service, Clean Water Act: A Summary of the Law, http://www.ncseonline.org/NLE/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.htm

  25. Why today’s work is important

  26. 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: connolly@law.sc.edu

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