§12.2 - Statutory and Regulatory Framework

• Jurisdiction: Washington

§ 12.2 STATUTORY AND REGULATORY FRAMEWORK

To achieve its objectives, the CWA embodies the concept that all discharges into the nation's waters are unlawful unless specifically authorized by a permit, which is the Act's principal enforcement tool. The law has civil, criminal, and administrative enforcement provisions and also permits citizen suit enforcement.

(1) §301: Prohibition of discharges, 33 U.S.C. §1311

Section 301 of the CWA prohibits the discharge of pollutants except in compliance with permitted effluent limitations and other provisions of the Act. 33 U.S.C. §§ 1311(a), 1362(12). Effluent from point sources other than publicly owned treatment works (POTWs) must be treated using best practicable control technology (BPCT). Toxic pollutants, defined and otherwise described in the Act, require treatment using the best available technology (BAT) that is economically achievable.

If the source discharges into a POTW, it must comply with applicable pretreatment requirements. Notwithstanding any other provisions, the Act makes it unlawful to discharge into navigable waters any radiological, chemical, or biological warfare agent, any high-level radioactive waste, or any medical waste.

(2) §303: Water quality standards, 33 U.S.C. §1313

Section 303 of the CWA provides for state adoption of water quality standards that are at least as stringent as federal water quality standards, and for the EPA to adopt standards for the states that do not adopt their own. 33 U.S.C. §1313. States also are required to develop strategies for cleanup of toxic pollutants in waters where the application of BAT discharge standards is not sufficient to meet state water quality standards.

Section 303(d)(1) requires each state to identify water bodies, or segments of water bodies, that are "impaired," or not meeting one or more of the water quality standards established by the state in spite of existing effluent limits. 33 U.S.C § 1313(d)(1). Water quality standards include the beneficial uses designated by the state for the water body as well as the numeric and narrative criteria set out to protect those uses. Support of fish and wildlife habitat is commonly designated as a beneficial use of water.

Once a water body segment is designated as impaired, the state is required to establish a total maximum daily load (TMDL) for the pollutant or pollutants causing the conditions of impairment. A TMDL determines the amount of a specific pollutant that a particular water body can assimilate on a daily basis without violating the applicable water quality standard. That total load is then allocated among the various sources of the pollutant in the watershed.

The EPAs regulations call for "waste load allocations" to point sources (confined, discrete conveyances such as pipes or ditches) and "load allocations" to nonpoint sources (storm water, erosion, and runoff from unconfined sources) and naturally occurring pollutants. In practical application, a TMDL identifies reductions in loading under the current "impaired" conditions that must be made to achieve the applicable water quality standards.

TMDLs for different water bodies must be prepared pursuant to a priority ranking based on the severity of the pollution and the waters' uses. The state's list of impaired waters and the TMDLs are subject to EPA review and approval. When a state fails to complete these tasks or the EPA disapproves a state's submittal, the EPA adopts its own list of impaired waters or establishes TMDLs for such waters as applicable. States must report to EPA on their water quality biennially. 33 U.S.C. §1315.

Washington's surface water quality standards were established to sustain public health, public enjoyment of the waters, and the propagation and protection of fish, shellfish, and wildlife. WAC 173-201A-010. This three-part approach sets limits on pollution in lakes, rivers, and marine waters to protect beneficial uses such as aquatic life, swimming, and fishing and support other CWA water protection processes (such as TMDLs and the biannual water quality assessment). See Ch. 173-201A WAC. The three-part approach covers

(1)	designated uses, such as fishing, swimming, and aquatic life habitat;
(2)	numeric and narrative water quality criteria limits to protect the uses; and
(3)	policies, such as antidegradation, to protect higher quality waters from being further degraded.

(3) §311: Preventing, reporting, and responding to spills, 33 U.S.C. §1321

Section 311 of the CWA addresses pollution from oil and hazardous substance releases, providing the EPA and the U.S. Coast Guard with the authority to establish a program for preventing, preparing for, and responding to oil...