The CWA in relation to other laws

AuthorJeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
The Clean Water Ac t (CWA), 33 U.S.C. §§1251-1387, may be the pri-
mar y statute dea ling w ith wate r pollution, but it is not the only one; ma ny
other statutes that the U.S. Environmental Protect ion Ag ency ( EPA)
admi niste rs de al d irectly or indirect ly with it. T he most obv ious include
the Marine Protection, Research, and Sanc tuaries Act (MPR SA), 33 U.S.C.
§§1401-1445, and the Safe Drinking Water Act (SDWA), 42 U.S.C. §§300f
to 300j-26, both of which have permit programs for discharges to water. e
rst reg ulates d ischarges to ocean water and the second regulates both the
safety of drinking water and discharges from wells to groundwater. To the
extent that water pollution control facilities treat hazardous wastes, as many
do, they are potentially reg ulated by the Resource Conservation and Recov-
ery Act (RCR A), 42 U.S.C. §§6901-6992k. Of course air emissions from
water pollution treatment facilities may be regulated by the Clean Air Act
(CAA), §§7401-7671q, and air pollution itself can result in water pollution.
Finally, the pollution of surface or groundwater by hazardous substances dis-
posed of in the past may be abated under the authority of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), 42
U.S.C. §§9601-9675.
is chapter explores how the CWA rel ates to these ve statutes. It
should be noted that these are not t he only federal statutes impact ing
water pollution control. Ot hers come into play with regard to particul ar
sources of water pollution, e.g., the Surf ace Mining Control a nd Recla ma-
tion Act (SMCRA ), 30 U.S.C. §§1201-1328, for discharges from current
and abandoned coal mi nes. And there are a var iety of statutes govern ing
activities in or adjacent to water that at times impact water pollution, e.g.,
the Refus e Ac t of 1899, 33 U.S.C. § 407 (2006), and the Federal Power
Act, 16 U.S.C. §§791a-828c (20 06). Similarly, the emergency response
planning a spects of the Emergenc y Planning and Com munity Right-To-
Know Act (EPCRA), 42 U.S.C. §§11001-11050, may involve th reats to
water. Ex amining how t he rst ve statutes are related to the C WA, how-
ever, will suce to demonstr ate the t ypes of substantive and structural
connect ions betwe en t he CWA a nd ot her statute s a nd the potentia l dif-
1064 Water Pollution Control, 2d Edition
cultie s of rec onciling the e ects of dierent statutes when the y overlap
on the same activity.
You w ill recall that the C WA regulates the discharge of pollutants from
point sources into navigable waters, dened as “the waters of the United States,
including the territorial seas.” §502(7). “Territorial seas,” in turn, are dened
as the belt of ocean water extending t hree miles beyond the coast. Section
502(8), and for the most part the C WA program extends no further, even
though under international law the United States now claims a 12-mile ter-
ritorial sea. Discharges, however, to the ocean from xed structures, such as
drilling platforms, are covered by the Act, §502(12), and §403 mandates
the establishment of ocean discharge criteria. But discharges from vessels are
the province of the MPRSA, 33 U.S.C. §§1401-1445. It prohibits the trans-
port of materia l, without a permit issued by EPA (1) from the United States
for the purpose of dumping it into ocean waters, (2) from anywhere by vessels
of the United States for the purpose of dumping it into ocean waters, or
(3)from anywhere for the purpose of dumping them into a band extending
nine miles beyond the territorial seas. 33 U.S.C. §1411. EPA develops envi-
ronmentally protective criteria, which are used in determining whether to
issue permits and for imposing conditions on permits it issues.
Permits issued by EPA under the MPRSA resemble the national pollutant
discharge elimination system (NPDES) permits under the CWA, 33 U.S.C.
§§1412 and 1414, but there is no provision for approving state permit pro-
grams. W hy not? EPA is given authority to designate dump sites, consistent
with the same criteria. Id. §1412(c). e U.S. Army Corps of Engineers (the
Corps) is authorized to issue permits for dumping dredged spoil, subject to
veto by EPA. Id. §1413. is division of responsibility is akin to that between
EPA and the Corps in issuing §§402 and 404 permits. at shouldn’t be sur-
prising, since §404 was originally conceived as a measure for permitting the
disposal of dredged spoil in navigable waters. EPA has much the same array of
enforcement authorities under the MPRSA that it has under the CWA, and the
MPRSA has a citizen suit provision that is modeled on that in the CWA. Id.
§1415. Since most ocean dumping violations occur at sea, the MPRSA vests
the U.S. Coast Guard with surveillance and other enforcement authorities.
In theory there should be no overlap between the C WA and the MPRSA,
since the CWA regulates discharges into inland waters and the territorial seas,
The CWA in Relation to Other Laws 1065
while the MPRSA regulates dumping beyond the territorial seas. To assure that
this is the case, the MPRSA denes “dumping,” the prohibited act, to exclude
discharges regulated under the CWA. Id. §1402(f).
e decisions that follow illustrate the MPRSA’s regulatory scheme. e rst
two, Town of Huntington v. Marsh, 859 F.2d 1134, 19 ELR 20192 (2d Cir.
1988) (Huntington I), and 884 F.2d 648, 19 ELR 21350 (2d Cir. 1989) (Hun-
tington II ), concern challenges to the designation by the Corps of a dredge
spoil dump site in Long Island Sound and the agency’s issuance of the MPRSA
permits to dump dredge spoil. Remember that §404 of t he CWA authorizes
the Corps to designate dredge spoil disposal sites in inland waters and to issue
permits to dispose of dredge spoil there. One of the issues in Huntington I was
whether the MPRSA, or §404 governs the Corps’ actions here. Why did the
court hold that the MPRSA governed? If it had held that §404 governed,
would it have decided t he case d ierently? Huntington II includes a consid-
erable discussion of equitable considerations in granting injunctive relief.
Would it have been decided dierently under §§309 and 404 of the CWA? e
third decision, United States v. Reilly, 827 F. Supp. 1076, 24 ELR 20097 (D.
Del. 1993), is a motion to dismiss crimina l charges for ocean disposal without
a permit. It turns on the meaning of “knowingly” in the criminal provision.
Would the same issue arise in a similar context under the CWA? Would it be
decided the same?
United States Cour t of Appeals for the Second Circuit, 1988
859 F.2d 1134 [19 ELR 20192]
Before A LTIM ARI and M AHONEY, Circuit Judges and CEDAR-
BAUM, District Judge.
ALTIMARI, Circuit Judge:
* * *
e United States Army Corps of Engineers, et al. (the “Corps”) appeal from
a judgment entered in the United States Dist rict Court for the E astern Dis-
trict of New York denying their cross-motion for summary judgment, and
granting plaintis’ motions for summary judgment and a permanent injunc-
tion. e district court held that a 1980 amendment to the Ma rine Protec-
tion, Research and Sanctuaries Act of 1972, 33 U.S.C. §§1401 et seq. (1982)
(“Ocean Dumping Act” or “Act”), applies to initial designation of an open

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