My How You've Grown: The Expanding Reach of the Clean Water Act

This federal statute has morphed into a multifaceted regulatory tool that goes far beyond what its drafters intended

• By Clay Burns, Jim Christman
• Nov 01, 2003

It is well known that the federal Clean Water Act once focused on chemical pollutants from industrial "point source" discharges. However, the federal statute has evolved into something much broader. How the U.S. Environmental Protection Agency's (EPA) implementation of the statute has changed was summarized in a chart by David G. Davis of EPA in 1998 (no longer available on the Web, but referenced at www.epa.gov/owow/watershed/davis.html. For example, emphasis has changed from limits on single chemicals to biological tests, and water regulation has changed its focus from single dischargers to a "watershed approach." At the same time, the present administration in particular has emphasized market-based pollution controls, particularly the trading of pollution credits.

The change in the scope of the Clean Water Act is even more dramatic than has been generally understood. Decisions by federal courts in the past two or three years have accelerated the change. This article is a brief account of ways in which the Clean Water Act has morphed into a multifaceted regulatory tool, far beyond what was envisioned when it was enacted in 1972.

The Clean Water Act as a Limit on Water Rights
Although the Clean Water Act is nominally about water quality, increasingly it regulates water quantity as well -- the right to withdraw and use water, a subject that is traditionally handled by state water rights law. In the U.S. Supreme Court case Jefferson County and City of Tacoma v. Washington Department of Ecology (1994), Justice Sandra Day O'Connor said that the difference between water quality and water quantity in the Clean Water Act is an "artificial distinction" (as stated on page 719 of the published case). In this case, Section 401 of the statute was used to limit the water that could be withdrawn from the Dosewallips River in order to preserve an instream minimum flow to protect fish habitat. Section 401 allows states to put conditions in federal permits to ensure that state water quality standards will not be exceeded. Thus its use is limited to projects that require a federal permit of some kind, usually a U.S. Army Corps of Engineers permit or Federal Energy Regulatory Commission license for work in "waters of the United States."

Another mechanism for regulating water use, increasingly, is Section 402, which authorizes permits for the discharge of pollutants. At the core of the Clean Water Act is the declaration that discharging a pollutant (virtually any substance except water itself, including heat) from a point source (pipe, ditch, channel or conduit) is illegal unless a National Pollutant Discharge Elimination System (NPDES) permit is obtained. Section 402 authorizes such permits.

Two cases have held that moving water around, even without adding pollutants to it, is a "discharge of a pollutant" that requires an NPDES permit. The most prominent of these is Miccosukee Tribe of Indians of Florida v. South Florida Water Management District (Eleventh Circuit Court of Appeals 2002), which the U.S. Supreme Court has agreed to review. Miccosukee Tribe involves a flood control project operated by the South Florida Water Management District. To prevent flooding in Broward County, the district built canals and levees and a pumping station to collect floodwater and transfer it to a different area. The federal courts in the Eleventh Circuit found that pumping water from the drainage project, which contained more phosphorus than the receiving waterbody, required an NPDES permit. The lower court would have stopped the pumping immediately, but the appeals court allowed time to obtain the NPDES permit, since stopping the pumping would have flooded the populated western part of Broward County within days. A similar decision was handed down in New York, Catskill Mountains Chapter of Trout Unlimited Inc. v. City of New York (Second Circuit Court of Appeals 2001), though in this case the pumping was from one reservoir to another by way of a pipe and a creek. The Miccosukee pumping is apparently all in the same watershed.

Meanwhile, the Ninth Circuit Court of Appeals has ruled that groundwater produced in association with methane gas extraction and discharged to a river is a "pollutant," even if the water is unchanged in the process Northern Plains Resource Council v. Fidelity Exploration and Development Co. (Ninth Circuit Court of Appeals 2003). Fidelity filed a petition requesting Supreme Court review on Aug. 8, 2003.

In short, merely moving water that contains pollutants (and all water does) seems to require a permit for the discharge of a pollutant, at least in the view of three Courts of Appeals. There must be some qualifications to this bold statement: It may depend on whether the transfer of water is an interbasin or inter-waterbody transfer, and a permit might not be required if the transferred water is cleaner than the water in the receiving waterbody. But we will have to await further decisions, such as the Supreme Court's in the Miccosukee case, to learn more.

Another way of regulating water rights under the Clean Water Act is by requiring minimum instream flows. This has been done with the help of the Endangered Species Act. For example, a court order of July 12, 2002 American Rivers v. U.S. Army Corps of Engineers (District Court for the District of Columbia 2003) ordered the Corps of Engineers to lower flows in the Missouri River in summer to protect three endangered species. More frequently, instream flows are required to be kept above some minimum flow to protect fish, as in the PUD No. 1 case. The case is attracting attention because the order by the district court in the District of Columbia conflicts with rulings of courts in the Eighth Circuit requiring the Corps to maintain flows to support navigation South Dakota v. Ubbelohde (Eighth Circuit Court of Appeals 2003). As a spokesman for the Corps said, "we have a ruling of the Eighth Circuit to let water out of the dams, and a ruling of the D.C. district court not to let water out."¹

Where water quality criteria for minimum flows exist, permit limits on water withdrawals, and possibly even total maximum daily loads (TMDLs), could be set based directly on flow, skipping the need to consider pollutants altogether. EPA has said it is interested in "regional minimum stream flow criteria on a seasonal or average monthly basis."²

The Clean Water Act as a Pesticide Law
Two cases from the Ninth Circuit Court of Appeals in California have held that applying a pesticide or herbicide, if it might reach water, requires an NPDES permit. Headwaters Inc. v. Talent Irrigation District (Ninth Circuit Court of Appeals 2001), found that applying a Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)-approved aquatic herbicide to control weeds in an irrigation canal required a permit. The following year, in League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren (Ninth Circuit Court of Appeals 2002), the same court held that an NPDES permit is required to apply a pesticide from an airplane, at least where the spraying is partly over water. Meanwhile, federal courts in New York have been dealing with the same issue, with different results, in such cases as No Spray Coalition Inc. v. City of New York (S.D.N.Y. Sept. 25, 2000) and Altman v. Town of Amherst (Second Circuit Court of Appeals 2002). The New York federal courts have said that the question of whether properly used pesticides can become pollutants that violate the Clean Water Act "will remain open."

EPA has tried to address the pesticide issue with a guidance memorandum of July 11, 2003, responding to the court's statement in Altman v. Town of Amherst calling on EPA to articulate a clear interpretation of whether NPDES permits are required to apply pesticides in compliance with FIFRA, the pesticide statute.³

The EPA guidance says there are two circumstances in which applying a pesticide to waters consistent with FIFRA does not require an NPDES permit. One is the application of pesticides directly to waters of the United States in order to control pests, such as mosquito larvae or aquatic weeds. The second is application of pesticides to control pests that are present over waters of the United States that results in a portion of the pesticides being deposited to waters of the United States.

Apparently this memorandum, which gives EPA's interpretation of the statute, is an attempt to take advantage of the "deference" afforded by courts to agency interpretations of statutes under Chevron USA Inc. v. Natural Resources Defense Council (1984). Chevron is of overwhelming importance in environmental law because it directs courts to accept EPA's interpretation of a statute so long as the interpretation is not unreasonable.

The Clean Water Act Used to Regulate Dams
Federal courts have twice held that water that merely passes through a dam, even water containing pollutants, does not require an NPDES permit National Wildlife Federation v. Gorsuch (D.C. Circuit Court of Appeals 1982); National Wildlife Federation v. Consumers Power Co. (Sixth Circuit Court of Appeals 1988). More recently, however, a different court held that increasing the volume of water passing through a hydroelectric dam's turbines might "result in any discharge into the navigable waters" under section 401 of the Clean Water Act. This is a different section from section 402, which requires NPDES permits. The court refused to hear the argument that the earlier two section 402 cases should apply to this more recent section 401 case, even though both sections of the statute use the word "discharge."

It appears that at present the passing of water through a dam is a "discharge" under section 401 but not a "discharge of a pollutant" under section 402. The matter is subject to considerable confusion.

Meanwhile, it has been reported that EPA's draft "Watershed Rule" for TMDLs may make dams into point source dischargers.⁴ The Army Corps of Engineers and other operators of dams are understandably concerned.

The TMDL program also is being used to regulate dams, especially insofar as dams may cause an increase in the temperature of water. In September 2002, EPA Region 10 issued a preliminary draft temperature TMDL for the lower Snake River and Columbia River.⁵ The draft TMDL finds that dams on the rivers are causing water temperatures to exceed state water quality standards.

The Clean Water Act as a Zoning and Land-Use Statute
For many years the federal government took a "hands-off" approach to land-use regulation, regarding it as a matter for local zoning boards. That understanding, like so much else, is changing.

Wetlands. Section 404 of the Clean Water Act, administered primarily by the Army Corps of Engineers, applies to "waters of the United States," which include "wetlands." Wetlands can look very much like pine forests or other dry land. Indeed, the Corps has classified dry gulches and arroyos in the desert as "waters of the United States" because occasionally they carry rainwater.

The problem is that the Clean Water Act applies to "navigable waters," which are defined as waters that are navigable, non-navigable "tributaries" to such waters and wetlands that are "adjacent to" other navigable waters. How close "adjacent" is and how far upstream a ditch has to go to stop being a "tributary" are unresolved issues. The Corps of Engineers and EPA have announced a rulemaking to define how far "upstream" the Clean Water Act extends.⁶

Until recently, courts had been engaged in a headlong drive to expand the meaning of "navigable waters." This drive was confounded, or at least delayed, by the Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001), known as the SWANCC case. This decision held that the word "navigable" in the Clean Water Act has some meaning; precisely what meaning, however, is subject to debate. The problem is that the SWANCC decision had to distinguish an earlier Supreme Court case, United States v. Riverside Bayview Homes, Inc. (1985), which seemed to take a broad view of Clean Water Act jurisdiction, though it applied only to a wetland adjoining an open body of water.

Although there is a good argument that SWANCC made a sweeping change in the understanding of Clean Water Act jurisdiction, several courts have interpreted it narrowly. For example, United States v. Deaton (Fourth Circuit Court of Appeals 2003), involved a drainage ditch connected to a roadside ditch that connected through ditches, ponds and creeks to the Wicomico River, a navigable river over eight miles away. The court held that this ditch is a "tributary" to a truly navigable water for purposes of the Clean Water Act, and therefore a federal permit (under 404, not 402, of the Act) was required to dig the ditch.

TMDLs. Another land-use provision of the Clean Water Act is the part that requires TMDLs for impaired waters. Much of the pollution addressed by TMDLs is "nonpoint source" pollution, meaning rainfall runoff from cities, forestry and farmers' fields. Controlling these diffuse sources of rainfall runoff requires land-use measures like stormwater retention ponds and vegetated buffer strips along streams. In the case of heat as a pollutant, one remedy is to plant trees along riverbanks to shade the water from the sun. A plan for the Tualatin River in Oregon, for example, calls for two wastewater plants to pay for planting trees that will cool tributaries by 1.5 degrees to protect salmon habitat.⁷

The use of TMDLs for nonpoint sources is controversial. Pronsolino v. Nastri, 291 F.3d 1123 (Ninth Circuit Court of Appeals 2002), holds that a waterbody can be listed as impaired, requiring it to have a TMDL, even if the impairment is caused by nonpoint sources. The court made clear, though, that EPA has no direct authority to regulate state land-use practices. Nevertheless, what is the TMDL program, really, except a nationwide zoning scheme for the land near waterbodies? And in a similar sense, EPA's program for issuing permits for stormwater, including the new general permit for stormwater runoff from construction sites, is regulation of land use as well.

In an even larger sense, land-use regulation is the essence of EPA's promotion of "smart growth," which is not limited to water programs. In her last week in office, former EPA Administrator Christie Whitman issued a memorandum telling EPA program offices to incorporate smart growth principles into their decisions.⁸ Showing no sense of any limits by subject matter at all, smart growth is apparently linked to air and water pollution and to children's health issues, including asthma and childhood obesity.

The Clean Water Act as Air Pollution Statute
Increasingly, the pollution of waterbodies is seen as a problem of air pollution, which is to say "air deposition" of water pollutants. This is especially a concern for the pollutants mercury and nutrients (nitrogen in particular). Impairment of waterbodies by mercury is a widespread problem, and apparently related to mercury in air emissions from all over the globe. Oftentimes a waterbody will be found to be impaired by mercury when the source of mercury is 99 percent from the air. Serious issues exist about whether there is legal authority, under either the Clean Water Act or the Clean Air Act, to impose requirements on sources of air pollution to address problems of water pollution.

The Clean Water Act as Superfund
As the Clean Water Act creeps into water rights and air pollution, it also starts to resemble statutes for cleaning up contamination, like the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), or "Superfund." In one case, a federal district court in Indiana allowed the government to go forward with a claim that an NPDES permittee should have to pay to clean up contaminated sediments downstream from its discharge, which was regulated by an NPDES permit Memorandum and Order, United States v. Alcoa, Inc. (District Court for the Northern District of Indiana 2000). Ordinarily an NPDES permit limits ongoing discharges of pollutants as they occur. Using the permit as a vehicle to require cleanup of past contamination is quite unconventional. For one thing, it may implicate EPA's "permit shield" policy, which holds that compliance with an NPDES permit is compliance with the Clean Water Act generally.

In addition, EPA is soliciting comments on draft CERCLA guidance, entitled "Contaminated Sediment Remediation Guidance for Hazardous Waste Sites" (Draft November 2002). Several sections of this guidance are devoted to "watershed considerations" and specifically identify NPDES permits, TMDLs and water-related best management practices as potential source control measures. Meanwhile there is a new EPA pilot program on TMDL-Superfund coordination. EPA's Science Advisory Board has a forthcoming contaminated sediments science plan. And an internal EPA paper on the costs of the Superfund program has prompted some observers to argue that contaminated sediment sites would be better addressed under the Clean Water Act than Superfund.

The Clean Water Act as Civil Rights Law
Under the name "environmental justice" EPA has long been concerned about disparate environmental impacts on racial groups, ethnic groups (like American Indians), age groups (children and elderly people), economic groups (the poor) and people with certain health conditions such as asthma. We are not aware that EPA has a program especially for sexual preference groups or civil rights for animals, but perhaps it is only a matter of time.

"Environmental justice" applies to all environmental programs. Under the Clean Water Act, it is most likely to arise in the form of claims that water quality criteria should be more stringent to protect particular groups, such as Native Americans who eat more fish than average. It might also arise with claims that a discharge of water pollutants or changes in flow from a dam have an inordinate impact on some ethnic or economic group.

Conclusion
Thus the Clean Water Act, like a river at flood stage, seems to be overtopping its banks. It starts to look like a law that has no bounds, like the Blob or The Monster that Devoured Cleveland from the old Dobie Gillis television show.

It is tempting to blame EPA or the courts for "interpreting" a statute far beyond what its drafters intended. But Congress makes the law and Congress can correct misinterpretations whenever it wants. Either Congress approves of what EPA and the courts have done with the Clean Water Act or else Congress lacks the political will to change it.

In fact, Congress has largely handed over environmental law to the Executive Branch, which is represented by EPA. And the courts have done likewise, "deferring" to EPA on both matters of law and matters of fact.

Whether EPA, mediated only by other Executive Branch agencies like the U.S. Office of Management and Budget (OMB) and the U.S. Department of Energy, will strike the right balance between environmental protection and other national interests is one of the great unanswered questions of our time. With rising energy costs and rising environmental compliance costs, industry is under increasing pressure to relocate abroad. We are perhaps engaged in a great social experiment to see whether an economy can survive based on service industries and intellectual products rather than manufacturing.

References
1. BNA Daily Environment, no. 137, pg. A-12, July 17, 2003.

2. 63 Federal Register 36,774 (1998); M. Pifher, "Old Battles -- New Weapons: The Establishment of Flow Criteria," Natural Resources & Environment, vol. 14, no. 11, pg. 11, Summer 1999.

3. Memorandum, G. Tracy Mehan, III to regional administrators, "Interim Statement and Guidance on Application of Pesticides to Waters of the United States in Compliance with FIFRA," July 11, 2003.

4. Inside EPA's Water Policy Report, vol. 12, no. 11, pg. 1, 6, June 2, 2003.

5. K. Beaton, "Regulating Dams Through TMDLs," Water Quality and Wetlands Committee Newsletter, vol. 5, no. 1 (ABA Section of Environment, Energy and Natural Resources March 2003) pg. 27.

6. 68 Federal Register 1991, Jan. 15, 2003.

7. Inside EPA Weekly Report, vol. 24, no. 15, pg. 20, April 11, 2003.

8. Inside EPA Weekly Report, vol. 24, no. 27, pg. 3, July 4, 2003.

This article originally appeared in the 11/01/2003 issue of Environmental Protection.