CHAPTER 4 WETLANDS AND NON-POINT SOURCE CONTROLS UNDER THE WATER QUALITY ACT OF 1987
| Jurisdiction | United States |
(May 1990)
WETLANDS AND NON-POINT SOURCE CONTROLS UNDER THE WATER QUALITY ACT OF 1987
Baker & McKenzie
San Francisco and Los Angeles, California
All the rivers run into the sea, Yet the sea is not full. From whence the rivers come Thither they return again.
-Ecclesiastes 1:7
The Water Quality Act of 1987 (Clean Water Act), 33 USC § 1251, et seq., Public Law 100-4, 101 stat. 7 et seq., was intended to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." To this end, the Clean Water Act1 imposes legal obligations, and substantial penalties for failure to comply, on those persons or entities who (1) discharge wastewater into lakes or streams; (2) discharge non-domestic wastewater into public sewers or sewage treatment plants; (3) place dredged or fill material in or on the banks of lakes, streams and wetlands; (4) spill oil or hazardous substances into surface waters (or store significant quantities of oil which could be spilled into surface waters); (5) or handle domestic sewage sludge. This paper will address the Act's coverage of issues involving permitted controls of point and non-point source discharges, and the recently
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politicized area of wetlands regulation, including the dredge and fill provisions under the Clean Water Act.
I. INTRODUCTION
When Congress first enacted the Clean Water Act in 1972,2 it provided basic elements and areas of coverage. To realize the congressional goals, the Act's primary contribution was a permit system to regulate the point discharge of pollutants to the navigable waters of the United States. At their inception, the permit requirements were subject to some significant judicial interpretation, including the attempted determination of which waters would require a permit before accepting a discharge. Eventually, the Act's meaning and purpose developed, and such important issues as the waters covered by the Act were resolved. Thus, "navigable water" was defined as any surface body of water.3 Furthermore, the Environmental Protection Agency (EPA) was charged with implementing the Act and enforcing the permit system to ensure that all such bodies of water were protected. The regulated community began to feel the effects of these discharge permits, as well as the bureaucratic stronghold EPA had on them.
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As strict as these requirements appeared to be, however, the Clean Water Act provided that states could be even more stringent in their regulations than the Federal Clean Water Act requires. The Act thus allows a state, if authorized,4 to implement its own permit system in lieu of the system developed by the EPA.5
In developing their own permit systems, the states, like EPA, must seek to achieve the specific goals of the Act, namely:
(1) Achieving a level of water quality which "provides for the protection and propagation of fish, shellfish, and wildlife" and "for recreation in and on the water;" and
(2) Eliminating the discharge of pollutants into United States waters.
The Clean Water Act, although designed to protect the "chemical, physical and biological integrity of the Nation's
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waters," has had only a minimal impact on the prevention of groundwater pollution and loss of wetlands. Instead, most regulatory attention under the Act has been focused on protection of surface water and control of point source discharges, such as industrial effluents and municipal treatment plants.6 However, the Act, as amended by the Water Quality Act of 1987, provides some legal bases for more effective regulation, control, and protection of groundwater and wetlands, including protection of wetlands from continued destruction by the U.S. Army Corps of Engineers.
To fully understand the means of protecting the nation's waters, as it is essential first to understand the importance of two of the significant resources the Clean Water Act is attempting to protect, wetlands and groundwater.
II. WETLANDS AND GROUNDWATER: THEIR PURPOSE AND IMPORTANCE
A. Wetlands As A Misunderstood National Resource.
Long regarded as sources of pestilence that should simply be filled, swamps and wetlands are now seen increasingly not as nuisances but as invaluable resources. Scientific
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evidence indicates that they protect shorelines from erosion by ocean waves and storms and reduce the severity of inland floods by slowing and storing floodwaters. They remove pollution from waters that flow through them and recharge underground aquifers. They also store water in the wetest parts of the year and release it at a constant rate to maintain regular stream flows. They also are important in providing critical breeding and nesting habitats for a wide array of fish and wildlife, including migratory water fowl. Wetlands support many commercial fisheries, provide an array of commercial products from cranberries and timber to fish and shellfish, and offer widespread opportunities for hunting, fishing, boating, nature study and photography. And because of the gases they emit and absorb, like methane, nitrogen and carbon dioxide, they help maintain the planet's atmospheric balance.7
As discussed elsewhere in this paper, the Bush administration's announcement of its no-net-loss policy is only one indication of a new and contentious phase in the struggle over the future of millions of acres of marshes, swamps, bogs, prairie potholes and bottom lands that not only provide an irreplaceable habitat for wildlife, but also help replenish the nation's watersupplies and control its floods. Both states and
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the federal government will play major roles in this struggle, despite their longtime and somewhat embarrassing efforts to arrest the steady shrinkage of wetlands. Indeed, even with the recent effort that has been expended by federal and state governments, an estimated 200,000 to 400,000 acres of wetlands continue to vanish each year, most in freshwater drainages in inland areas, where 95% of all wetlands are found. While agriculture has sometimes incurred the unjustified wrath of environmental groups, and certainly agriculture is to blame for many of the non-point source discharges of pollutants,8 it is agriculture that has converted millions of acres of freshwater wetlands into cropland since the mid-1950s. In this conversion process, farmers have gone largely untouched by federal and state regulatory efforts.
Historically, efforts to preserve wetlands have focused mainly on coastal areas. But now environmentalists, politicians and regulators are engaged in a campaign to control the attrition of inland wetlands for the first time and, hopefully, to ultimately reverse the trend. In the short run, at least, all of these groups have declared unitedly their objective to be no-net-loss of wetlands. That is, the principle would allow the conversion of wetlands only if the
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converting user restored previously converted wetlands or created new ones.
B. The Groundwater Resource.
Groundwater is an integral part of the hydrologic cycle, as well as a major source of the nation's domestic, industrial and agricultural water supply. Groundwater can be defined as sub-surface water that occurs beneath the water table in saturated soils in geologic formations known as aquifers.9 Aquifers are permeable strata of rock, sand, or gravel through which water can move with relative ease and may extend up to hundreds of miles.10 Aquifers are generally classified as either confined of unconfined. Unconfined aquifers occur near the earth's surface and exist at atmospheric pressure. Their upper surface forms the water table, which rises or falls in accordance with seasonal fluctuations and rainfall. In contrast, confined (or artesian) aquifers are generally deeper, with their confining characteristic being confinement between two layers of relatively impermeable rock. Thus the water in confined aquifers is under greater than atmospheric pressure and flows between the two confining layers.
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Groundwater is replenished by the percolation of surface water and rainfall through porous overlying soil into the aquifer. Unconfined aquifers are usually recharged over most of their surface area, whereas artesian aquifers are recharged only in those localized areas where the permeable strata rises to the surface, known as recharge zones. Pollution of groundwater can occur when contaminants are leached through the aerated soil and non-saturated zone into the underlying aquifer by the recharging water. Thus, protection of critical recharge zones from pollution generating activity such as non-point source discharges is an extremely important component of any effective control strategy.
The importance of groundwater is beyond compare. Although it comprises only 4% of all water in the hydrologic cycle, it accounts for approximately 96% of all fresh water on the planet (including glaciers)11 and currently supplies one fourth of all fresh water used in the United States.12 It is estimated that nearly 50% of the nation's population relies upon groundwater as its primary source of drinking water and approximately 75% of major American cities derives some part of
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their municipal water supply from groundwater. Overall, approximately 36% of the total municipal drinking water supply and 95% of the rural drinking water supply are dependent on groundwater.13 In some parts of the country, especially in isolated rural or arid regions, groundwater is the only source of reliable drinking water.14 It is sadly ironic, as will be discussed momentarily, that it is in these rural areas where groundwater pollution from agricultural, non-point source discharges, are posing the greatest environmental and health threat.
III. THE CLEAN WATER ACT: NATIONAL POLLUTION DISCHARGE ELIMINATION SYSTEM...
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