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Clean Water Act

I. Introduction

Congress enacted the Federal Water Pollution Control Act (FWPCA), (You're leaving a federal government web site.) now more commonly known as the Clean Water Act (CWA), in 1948.  The CWA as we know it today came into existence with the 1972 amendments.  The purpose of the Act is to "restore and maintain the chemical, physical and biological integrity of the Nation’s waters." 33 U.S.C. 1251. (You're leaving a federal government web site.) The original aim of the drafters was the elimination of all discharges into the navigable waters of the United States by 1985.

For most ISC's, Support Centers, & other shore units the CWA boils down to one word - PERMITS.

The EPA administers the CWA through a permitting system called NPDES: the National Pollutant Discharge Elimination System.  The CWA makes it unlawful for any person to discharge any pollutant from a point source into the navigable waters of the United States without a NPDES permit.  In addition to dealing with direct dischargers, the CWA also regulates indirect dischargers--those "persons" who discharge waste into publicly owned treatment works (POTWs) and/or federally owned treatment works (FOTWs). The primary benefit of being an indirect discharger is avoiding NPDES permitting requirements.

The CWA also regulates discharges into wetlands, to include swamps, marshes, bogs and similar such areas which fall within the broad definition of "navigable waters."  These wetlands permits are the responsibility of the Army Corps of Engineers.

Lastly, the CWA contains the Oil Pollution Act (OPA), which regulates discharges of oil and hazardous substances into the waters of the United States, adjoining shorelines, or into the waters of the contiguous zone. See Summary of the Oil Pollution Act of 1990.  The OPA requires contingency planning by the government and private industry and creates new manning, licensing and construction requirements.

Under the CWA, Federal facilities are subject to: "Federal, state, interstate and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any non-governmental entity…." 33 U.S.C. 1323. (You're leaving a federal government web site.) Although Federal facilities are required to comply with the substantive requirements of the Act, they are not currently required to pay punitive fines or penalties for violations of the CWA.   However, pending legislation may rewrite the existing waiver of sovereign immunity to include punitive fines and penalties similar to the amended waivers contained in both the Resource Conservation and Recovery Act (RCRA), at 42 U.S.C. 6961, (You're leaving a federal government web site.) and in the Safe Drinking Water Act (SDWA), at 42 U.S.C. 300j-6. (You're leaving a federal government web site.)

II. Legal Authorities

A. United States Code: The Federal Water Pollution Control Act, (You're leaving a federal government web site.) 33 U.S.C. 1251-1387, as amended.

B. Code of Federal Regulations: 33 C.F.R. 151-158, 320-338, 40 C.F.R 20-25, 104-149, 220-233, 401-471, 49 C.F.R. 130.

C. Executive Orders: Executive Order 11990, Wetlands

III. Oil Pollution Act of 1990

The Oil Pollution Act (OPA) was created in response to the Exxon Valdez disaster.  It amended Section 311 of the Clean Water Act (You're leaving a federal government web site.) to help address discharges of oil and petroleum products into the waters of the United States, adjoining shorelines, or into the waters of the contiguous zone. 33 U.S.C. 1321; (You're leaving a federal government web site.) 40 C.F.R. 112.1.  Among the requirements it created were contingency planning by industry and the government - to include Federal facilities.  It created new construction, manning and licensing requirements and established a billion dollar trust fund to supplement payments and cleanup.  Owners or operators of onshore and offshore facilities which reasonably could discharge oil in harmful quantities into the navigable waters of the United States are required to create a Spill Prevention Control and Countermeasure Plan (SPCC). 40 C.F.R. 112.3.  The SPCC will provide a facility with a working document that outlines operating procedures which will prevent spills, measures taken to prevent spills reaching navigable waters, and courses of action in the event of a spill.

The OPA imposes requirement to immediately notify the National Response Center in the event of an oil spill (800-424-8802). 40 C.F.R. 110.10.  The amount needed to trigger the notification requirement need only be a film or sheen on the water, or a discharge of oil that violates applicable water quality standards. 40 C.F.R. 110.3.  Failure to give required notice could result in imprisonment up to five years and/or a fine. 33 U.S.C. 311(b)(5). (You're leaving a federal government web site.)

IV. Enforcement

The CWA is generally enforced on the Coast Guard by the EPA, but dredge and fill permitting is enforced by the Army Corps of Engineers. 33 U.S.C. 1319(You're leaving a federal government web site.) Under the CWA, Federal facilities are subject to: "Federal, state, interstate and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any non-governmental entity…."  Federal facilities are not currently subject to punitive fines and penalties under the CWA.  However, a fine may be imposed to coerce a Federal facility into complying with the requirements of the CWA.

The CWA may be enforced in a variety of ways:

Administrative:

Notice of Violation (NOV) or Notice of Noncompliance (NON). 33 U.S.C. 1319(a). (You're leaving a federal government web site.)

Civil penalties:

Up to $27,500 per day, per violation. 33 U.S.C. 1319(d). (You're leaving a federal government web site.)
Injunctive relief. 33 U.S.C. 1319(b). (You're leaving a federal government web site.)

Criminal charges:

Negligent Violations: $2,500 to $27,500 fine or imprisonment for one year, or both. 33 U.S.C. 1319(c)(1). (You're leaving a federal government web site.)
Knowing Violations: $5,000 to $50,000 fine or imprisonment for not more than three years, or both. 33 U.S.C. 1319(c)(2). (You're leaving a federal government web site.)
Knowing Endangerment: Up to $250,000 fine or imprisonment for up to 15 years, or both. 33 U.S.C. 1319(c)(3). (You're leaving a federal government web site.)

Citizen suits:

A citizen suit can be commenced against any person (including Federal facilities) for the violation of an effluent standard or order issued by U.S. EPA.   No suit can be commenced if the violation is being diligently prosecuted civilly or criminally or until sixty days notice has been provided to EPA, the state, and the defendant. 33 U.S.C. 1365(b). (You're leaving a federal government web site.)

Last Modified 1/12/2012