The CWA in relation to other laws

• Author: Jeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
• Pages: 1063-1111

1063

CHAPTER XV:

THE CWA IN RELATION TO OTHER LAWS

A. INTRODUCTION

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.

B. THE MARINE P ROTECTION, RESEARCH,

AND SANCTUARIES ACT

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?

TOWN OF HUNTINGTON v. MARSH

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