The Clean Water Act

• Author: Valerie Ann Lee/P.J. Bridgen
• Pages: 77-86

Page 77

Chapter 6

The Clean Water Act

6.1 Introduction

On April 23, 1988, a year before the Ex xon Valdez oil spill led to a major reformation and strengthening

of America’s oil pollution laws, a worker at the Shell Company’s Martinez, California, renery left open a

valve designed to allow draina ge of storm water from a berm-protecting spill from a large oil storage tank.

Unfortunately, the tank leaked a nd the berm lled with oil. Before the mistake wa s rectied, more than

432,000 gallons of crude oil leaked from the open valve into Suisun Bay, near San Francisco, killing birds

and mammals. e Shell Mart inez spill also fouled hundreds of acres of wetlands and miles of shorelines

and impacted water quality up to 52 miles from the site of the spill.1 e spill led to a pitched outcry from

those living in and around San Francisco.

e headlines of disaster and outcry, 14 years later, were replaced by ones of restoration success and

public acclaim. e San Francisco Chronicle termed the spill a “blessing in disguise” and w rote that “the

spill has played a key role in salvaging the northern Bay Area’s remaining wetlands”—a testament to the

attorneys and natural resource damage assessment (NR DA) experts for Shell and three levels of govern-

ment who resolved cla ims s wiftly without litigation to begin implementation of an eective restoration

package.2 With settlement funds provided by Shell, trustees spent $7.5 million to buy and protect 10,000

acres of salt ponds near the mouth of t he Napa R iver, $1.8 million to prevent development of 168 acres

of waterfront property along the Point Pinole Regional Shoreline, and $4 million to preserve 198 acres of

marsh and hillsides alongside Interstate 680.3 Praise was well deserved for the responsible parties and the

trustees alike. e key federal statutory provision in this high ly successful settlement and restoration pro-

gram was §311 of the Clean Water Act (CWA).

Section 311 of the CWA provides a right-of-action for natural resource damages (NRDs) for spills of

oil and haza rdous substa nces. A lthough t he CWA was a central statute in the government’s arsenal for

NRDs, it has decreased in importance since the enactment of the Oil Pollution Act (OPA) of 1990 and

the more frequent use of the Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA). Nonetheless, the CWA is still pled as part of many NRDA complaints with claims focusing

on OPA or CERCLA.4

is chapter examines liability under the NRD provisions of C WA §311. Given the dwindling impor-

tance of the CWA in NRDA cases, however, the examination is brief.

1. See California Department of Fish and Wildlife, Shell/Martinez Oil Spill, http://www.dfg.ca.gov/ospr/NRDA/shell-martinez.aspx (last visited

Jan. 14, 2013).

2. See John King, Oil Spill Is a Blessing in Disguise: Bay Reaps Benets From Cleanup Check, S.F. C., Apr. 3, 2001, at A13.

3. See id.

4. See, e.g., Complaint, United States v. BP Exploration & Prod. Inc., No. 2:10-cv-04536 at ¶¶70-76 (E.D. La. Dec. 15, 2010) (rst claim for

relief seeking civil penalties under CWA §1321(b)). e United States sought civil penalties under CWA in its initial complaint against BP

and the other defendants. As of this writing, the U.S. government is continuing the NRDA process and has yet to le a claim, which may

include NRDA claims under CWA.