CHAPTER 12 CLEAN WATER ACT PERMITTING OVERVIEW: SECTIONS 402 AND 404
| Jurisdiction | United States |
(Apr 2012)
CLEAN WATER ACT PERMITTING OVERVIEW: SECTIONS 402 AND 404
Davis Graham & Stubbs LLP
Denver, Colorado
ZACH C. MILLER is with the firm of Davis Graham & Stubbs LLP in Denver, Colorado. He has practiced environmental, water and natural resources law since 1980. He has broad experience before numerous state and federal agencies in disputes over, and permitting for, oil & gas operations, public land uses, NEPA compliance, water rights, water quality, air quality, hazardous substances, wetlands, pesticides, mining, mineral processing, ski areas, power projects, and related issues. He has litigated a number of complex cases in state and federal courts relating to these and other natural resource-related matters. Building on his government experience, Mr. Miller has dealt with various resource-related matters on Indian lands and with several tribal entities. He has handled numerous judicial and administrative enforcement and civil penalty actions relating to these areas. Mr. Miller's practice also includes title review and complex transactional work for water rights, mineral interests, and other real property, with an emphasis on brownfield projects and environmental audits and related transactions for mineral properties and processing facilities. He has represented clients in several of the largest water rights acquisitions and change cases in Colorado history. He has also represented developers and lenders in connection with permitting and other regulatory matters for major electric generation and wind energy projects. He has served as an expert witness in state and federal courts on wetlands regulation and Colorado water rights matters. Mr. Miller has also acted as special counsel to the Cities of Boulder, Loveland, Aurora, and Greeley in various water and environmental matters and is a former member and chairman of the Environmental Advisory Board for the City of Boulder. Prior to joining Davis Graham & Stubbs in 1981, Mr. Miller served as Special Counsel to the Assistant Secretary for Indian Affairs and as an attorney in the Honors Program of the Solicitor, United States Department of the Interior, in Washington, D.C. Mr. Miller is listed in the Guide to the World's Leading Environmental Lawyers, is identified as a leading environmental lawyer in Colorado in Chambers USA: America's Leading Lawyers for Business, The Client's Guide, and in Colorado Super Lawyers, and is listed in the Best Lawyers in America in the fields of both water law and environmental law. In 2011, he was inducted into the American College of Environmental Lawyers, which is an invitation-only membership for lawyers who are preeminent in their field and who have practiced environmental law for at least 15 years.
OVERVIEW OF CLEAN WATER ACT SECTION 402 AND 404 PERMITTING PROGRAMS
April 2012
Zach C. Miller
Davis Graham & Stubbs LLP
Denver, Colorado
I. INTRODUCTION
The federal Clean Water Act, 33 U.S.C. § 1251 et seq. ("CWA"), is one of the cornerstones of American environmental law and is the central program for regulating water quality and wetlands in the United States. Two of the central features of the CWA are its Section 404 and 402 permitting programs, which respectively regulate the discharge of "fill material" (under 404) and all other "pollutants" (under 402) from a "point source" to any regulated "water of the United States."
This paper provides an overview of these Section 402 and 404 permitting programs by briefly describing: (1) the historical evolution of the CWA; (2) the key programs and structure of the CWA; (3) the basic requirements and restrictions of the Section 402 and 404 Permit Programs; (4) related CWA programs setting water quality standards used in Section 402 permitting; (5) the related CWA compliance and enforcement mechanisms; (6) the relationship of EPA, the States, and U.S. Army Corps of Engineers ("Corps") in implementing and enforcing these programs; (7) current hot topics related to the 402 and 404 Programs; and (8) recommendations for staying out of hot water in this area.
II. HISTORICAL EVOLUTION OF CLEAN WATER ACT
The CWA in its modern form was adopted in 1972, after previous ineffective attempts to regulate water quality.
A. 1899 Rivers and Harbors Act (aka "Refuse Act"): prohibited discharge of "refuse" into traditionally "navigable" waters. Regulated by U.S. Army Corps of Engineers ("Corps"), but its primary goal was to protect navigation on major navigable waterways.
B. Pre-1948: Diverse, ineffective state water quality programs.
C. 1948: Federal Water Pollution Control Act ("FWPCA") of 1948 was the first, minor involvement of the federal government directly in water quality. Focus was on federal assistance to municipal water treatment and discharges.
D. 1965: FWPCA of 1965 expanded '48 law by providing for State adoption of water quality standards for receiving waters. It proved to be difficult to enforce because (1) U.S. had no enforcement authority, (2) States had to prove a discharger caused the ambient water quality to exceed the receiving water
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standard, (3) there was no permit requirement for dischargers, and (4) few States even set standards.
E. 1969: Cuyahoga River in Cleveland catches on fire (Randy Newman memorializes in song "Burn On, Big River"); was actually the tenth time (since 1868) the Cuyahoga had caught on fire!
F. 1970: New EPA proposes a program to require "refuse discharge" permits under 1899 Act, to the consternation of affected industries.
G. 1972: Congress overrides presidential veto to enact FWPCA of 1972, which adopted most of the basic features of the modern CWA, including Section 402 and 404. Many industries supported this legislation as preferable to EPA's threatened Refuse Discharge Permit program.
H. 1977: Major amendments to 1972 FWPCA and name change to "Clean Water Act".
I. 1987: Additional major amendments, including adoption of (1) storm water regulation under Section 402, (2) New Source Performance Standards for new source discharges, and (3) new Section 319 Program to address "non-point source" run-off.
III. OVERVIEW OF CLEAN WATER ACT
A. The Objectives of the Clean Water Act
The Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., as it was adopted in 1972, set the following ambitious goals and objectives:
• To restore and maintain the chemical, physical, and biological integrity of the Nation's waters." ( 33 U.S.C. § 1251(a)).
• Eliminate the discharge of all pollutants into navigable waters by 1985. ( 33 U.S.C. § 1251(a)(1)).
• By July 1, 1983, all waters be of a quality that provides for the protection and propagation of fish, shellfish, and wildlife, and provides for recreation in and on the water-the so-called "fishable and swimmable" goal. ( 33 U.S.C. § 1251(a)(2)).
B. The CWA's Regulatory Programs
1. The Clean Water Act controls water pollution through several principal regulatory programs, almost all of which address the discharge of pollutants from point sources into the surface waters of the United States. Ground water pollution is not explicitly addressed by the CWA, and non-point source pollution (i.e., uncollected runoff) is addressed largely
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through management, rather than regulatory, programs. See 33 U.S.C. §§ 1288,1329 .
2. The principal regulatory elements of the CWA's surface water pollution control program are:
• Water Quality Standards
• Effluent Limitations for Point Sources
• Section 402 National Pollutant Discharge Elimination System (NPDES) Permit Program
• Section 404 "Dredged and Fill" Permit Program
• Oil Spill and Hazardous Substance Discharge Prevention and Cleanup Rules
3. With the exception of the Section 404 Dredged and Fill Permit Program, these regulatory programs are administered and/or overseen by the U.S. Environmental Protection Agency (EPA). The Section 404 Permit Program is administered by the U.S. Army Corps of Engineers, although EPA plays a significant role in the administration and enforcement of even this program. The development of Water Quality Standards is primarily the responsibility of the States, under the close supervision, and subject to the approval of, EPA. The responsibility for administering the NPDES Permit Program within a State may be wholly or partly delegated to the State, again under the close supervision, and subject to the approval of, EPA. To date, 46 States have received EPA approval to administer all or a portion of the NPDES program. Although the Section 404 program is also available for administration by States (with respect to all waters within a State except those actually usable for commercial navigation), only Michigan and New Jersey to date have received delegation of authority to administer the Section 404 program.
IV. SECTION 402: NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PERMIT PROGRAM
A. Basic Permit Requirement
The NPDES Permit Program is the central regulatory mechanism of the CWA. Under CWA Section 301, the discharge of any pollutant to navigable waters from any point source by any person is unlawful, unless a permit has been issued for such discharge. 33 U.S.C. §§ 1311, 1342. Section 402 then creates the main permit program that authorizes such discharges:
1. Discharge - means the addition of a pollutant or pollutants to navigable waters from a point source. 33 U.S.C. § 1362(12)(A),(16).
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...2. Pollutant - very broadly includes dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste. It does not include water, gas or other material injected into a well in connection with oil or gas production, so long as such injection
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