CHAPTER 1 A CLEAN WATER ACT PRIMER FOR THE MINING INDUSTRY
| Jurisdiction | United States |
(Jan 2002)
A CLEAN WATER ACT PRIMER FOR THE MINING INDUSTRY
Ellen B. Steen
Crowell & Moring LLP
Washington, D.C.
I. INTRODUCTION
After nearly 30 years, the modern Clean Water Act ("CWA") is still evolving. This article will explore its changing jurisdiction and developments in key programs that significantly affect the mining industry. We begin with an overview of the key CWA regulatory programs. We then describe several of the major legal issues that determine whether particular activities may be subject to CWA regulation, including the meaning of "navigable waters" subject to CWA jurisdiction, the activities that can be deemed an "addition" of "fill material" to covered waters, and the various "point sources" that may be found in a mining operation. Finally, we describe the permitting requirements that apply to regulated discharges and identify anticipated changes in those requirements that will affect the mining industry.
II. OVERVIEW OF CLEAN WATER ACT PROGRAMS
[1] The NPDES Program and Nonpoint Source Programs
The Federal Water Pollution Control Act Amendments of 1972 (which enacted what subsequently became known as the Clean Water Act) established as the centerpiece of federal water pollution control a system to regulate all "discharges of pollutants" - the § 402 NPDES program. 1 That program operates through an outright ban on "the discharge of any pollutant by any person" except in compliance with certain conditions.2 "Discharge of a pollutant" means the addition of a pollutant to "navigable waters" from any "point source."3 "Navigable waters" means "the waters of the United States,"4 which has been broadly interpreted to include virtually any surface water. A "point source" is a "discernible, confined and discrete conveyance" such as a pipe, ditch, or channel.5
One condition imposed on the discharge of pollutants from point sources is that they must be authorized by NPDES permits imposing "effluent limitations."6 "Effluent limitations" are restrictions on the quantity, rate, and concentration of the various constituents of a point source discharge.7 . For purposes of regulating certain discharges, such as dis
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charges of storm water, the term effluent limitations has also evolved to encompass restrictions on operational practices that may be incorporated as permit conditions to control the type and volume of pollutants in potential discharges.8 . In any case, "effluent limitation" is a term of art that specifically applies to restrictions on point source discharges subject to permitting requirements under the Act.9
Under the statutory scheme, effluent limitations should in the first instance be technology-based - i.e., they should require a level of pollutant control based on the availability and feasibility of specific pollution control technologies for various industries.10 Where those technology-based limitations prove insufficient to assure the quality of particular receiving waters - such as where many discharges exist on the same waterway - the statute provides for more stringent effluent limitations that might be "required to implement any applicable water quality standard…."11 These more stringent effluent limitations are commonly known as water quality-based effluent limitations.
"Storm water discharges" - i.e., point source discharges of storm water runoff - are regulated through a specific program established in the 1987 Amendments to the statute. Section 402(p) established a two-phase system, requiring immediate NPDES permitting of certain classes of storm water discharge, including storm water discharges "associated with industrial activity."12 For sources not identified for permitting in Phase I, EPA was required to establish a comprehensive Phase II program to regulate storm water discharges only as necessary to protect water quality.13
The statute did not define which activities are "industrial," and it expressly exempted from regulation mining-related storm water that is not contaminated by contact with overburden, raw material, intermediate products, finished product, byproduct, or waste product located on site.14 However, EPA defined "industrial activity" to include runoff from both active and inactive mines (unless the discharge is of exempt non-contact runoff).15 EPA also defined "industrial activity" to include construction activities, including clearing, grading, and excavation, if the project disturbs a total of five acres or more.16 Later, in its Phase II regulations, EPA added NPDES permitting requirements for smaller construction
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activities disturbing one acre or more.17 Other storm water discharges, which are not covered by Phase I and which were not designated for Phase II, are not subject to NPDES permitting unless they are specifically designated by EPA or an authorized state agency.18
Regulated storm water discharges are typically permitted through "general permits" rather than facility-specific individual permits.19 General permits are issued by NPDES authorized states and by EPA regional offices. Just as with individual permits, regulated entities must obtain a general permit from the appropriate agency authorized to issue NPDES permits for the location and the type of operation in question. Therefore, if no applicable general permit is available from a particular state or EPA regional office, dischargers must obtain an individual permit from the appropriate permit-issuing agency.
The CWA imposes no form of permitting or other direct regulation on so-called "non-point" sources of pollution - such as storm water runoff that is not channeled through a point source. Originally, nonpoint source pollution was addressed primarily under CWA § 208, which provided for grants to encourage states to develop areawide waste treatment management plans and identify feasible nonpoint source control methods.20 The 1987 Amendments added § 319 to establish a new program specifically to address nonpoint source pollution. Section 319 required states - as a condition of receiving federal grant funding - to identify nonpoint source pollution problems, to identify "best management practices" to reduce pollution from nonpoint sources causing water quality impairment "to the maximum extent practicable," and to establish nonpoint source management programs.21
[2] Water Quality Standards and the TMDL Program
Section 303 of the CWA establishes requirements for the adoption and revision of water quality standards by states or by EPA.22 In addition, § 303(d) requires states to calculate "total maximum daily loads" ("TMDLs") for certain waters, and § 303(e) requires them to develop a "continuing planning process" to work toward achieving the goals of the statute.
The statute does not define the term "total maximum daily load," nor does it explain what, if anything, is to become of a TMDL once it is established. However, the TMDL must be established "at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of
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knowledge concerning the relationship between effluent limitations and water quality."23 EPA has authority to approve, disapprove, or take over state decision-making as to which waters require TMDLs, as well as the TMDLs themselves.24
[3] The Section 404 "Dredge and Fill" Program
Section 404 of the CWA authorizes the United States Army Corps of Engineers ("the Corps") to issue permits for the discharge of "dredged or fill material" into the navigable waters at specified disposal sites.25 The Corps' authority is subject to EPA's veto power if, after notice and the opportunity for public hearings, EPA determines that the discharge will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas.26
III. KEY ISSUES AFFECTING CLEAN WATER ACT JURISDICTION
[1] "Navigable" Waters
[a] General Breadth of Definition
It is well established that, by defining "navigable waters" as "the waters of the United States,"27 Congress intended to prohibit discharges to at least some waters that are not actually navigable.28 Over the years, many courts have found that the term "navigable waters" encompasses virtually any surface water, including wetlands, intermittent drainages, and other so-called "waters" that are actually more dry than wet.
As discussed below, the Supreme Court recently reinvigorated the significance of the word "navigable", ruling that non-navigable waters must at least be adjacent to navigable waters to be subject to CWA regulation.29 However, the second major limitation on the type of waters covered - the limitation to surface waters - has been weakened by EPA's broad assertion of authority to regulate discharges to groundwater that is "hydrologically connected" to surface water.
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[b] The Link to Navigation: Riverside Bayview and SWANCC.
[i] Adjacent Wetlands - Riverside Bayview
In United States v. Riverside Bayview Homes, Inc., 30 the Supreme Court upheld the authority of EPA and the Corps to regulate discharges to at least certain obviously non-navigable waters. The case originated when the Corps sued to enjoin filling activity being conducted in preparation for a housing development on 80 acres of marshy land near Lake St. Claire, in Michigan.31 In defending against the Corps' claim, the developer challenged the Corps' regulation defining "waters of the United States" to include wetlands that are adjacent to other covered (e.g. navigable) waters.32 Though the Corps' regulations at that time also included certain wetlands that were not adjacent to other waters, those aspects of the regulations were not at issue and were not addressed by the Court.33
The Riverside Bayview Court recognized that...
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