V Water Pollution Control, with a Focus on the Clean Water Act, National Pollutant Discharge Elimination System (npdes) Permit Program

• Library: Illinois Environmental Law for Non-Environmental Lawyers (2017 Ed.)

V. Water Pollution Control, With a Focus on the Clean Water Act, National Pollutant Discharge Elimination System (NPDES) Permit Program¹ Aimee Davenport Evans & Dixon, Columbia, MO Robert E. Schmittgens The Cagle Law Firm - St. Louis, MO Michael White J.D. Candidate - University of Missouri - Columbia, MO

The Illinois Environmental Protection Act (the "Act") prohibits pollution or threatened pollution of waters of the State. The water pollution prohibitions contained in the Act are meant to address any number of situations that might result in the discharge of contamination. The discharge can be direct, such as through a pipe or other discrete source, or indirect. Examples of indirect discharge would include precipitation that comes into contact with a deposit upon the land or contaminated runoff from a piece of equipment.

The practitioner needs to address each of these situations with his or her client. This Thumbnail provides the non-environmental lawyer with a very general description of the State's water pollution control program. What follows provides the lawyer with sufficient direction so that he or she may advise the client generally. As such, this Thumbnail cannot, and does not, create any attorney/client or consultant/client relationship. On specific questions, and with regard to specific cases, we suggest that the help of a competent environmental counsel be sought.

A. Definitions

The definitions of "water," "contaminant," and "water pollution" contained in the Act will quickly give you an idea of the breadth of Illinois water pollution prohibitions.

The definition of "waters" can be found at Section 3.550 of the Act, 415 ILCS 5/3.550:

"WATERS" means all accumulations of water, surface and underground, natural, and artificial, public and private, or parts thereof, which are wholly or partially within, flow through, or border upon this State.

The State definition is broader than the federal definition found in the Clean Water Act ("CWA"). The jurisdictional scope of the CWA is "navigable waters," defined as "waters of the United States, including the territorial seas." The federal definition generally covers only surface "waters of the United States," while the state definition includes all surface water, tributaries to such waters, and groundwater. While states can adopt definitions, laws and regulations that are more stringent than federal law, all state water pollution law is essentially guided by the federal Clean Water and Safe Drinking Waters Acts, respectively.

The definition of "contaminant" can be found at Section 3.165 of the Act, 415 ILCS 5/3.165:

"CONTAMINANT" is any solid, liquid, or gaseous matter, any odor, or any form of energy, from whatever source.

The definition of "water pollution" can be found at Section 3.545 of the Act, 415 ILCS 5/3.545:

"WATER POLLUTION" is such alteration of the physical, thermal, chemical, biological or radioactive properties of any waters of the State, or such discharge of any contaminant into any waters of the State, as will or is likely to create a nuisance or render such waters harmful or detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate uses, or to livestock, wild animals, birds, fish, or other aquatic life.

The Act's definition of "PERSON" is relevant for purposes of liability for pollution. That definition, found at Section 3.315 of the Act, 415 ILCS 5/3.315, is also broad:

limited liability company, corporation, association, joint stock company, trust, estate, political subdivision, state agency, or any legal entity, or their legal representative, agent or assigns.

The practicing lawyer needs to understand that liability for pollution under the Act can be much stricter than liability in other legal contexts. For example, liability under the Act is generally joint and several. Further, the state enforcement agencies take the position that liability for corporate action can personally reach the chief corporate officer if he or she has exercised sufficient control and decision-making power in actions directly related to the pollution.

Federal jurisdiction under the CWA is evolving. On May 27, 2015, the United States Environmental Protection Agency (U.S. EPA) and the United States Army Corps of Engineers issued a final rule defining "waters of the United States." For purposes of the CWA and its implementing regulations (subject to certain exclusions described below) the rule defines "waters of the United States" as follows:

. . . All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; . . . All interstate waters, including interstate wetlands;
. . . The territorial seas;
. . . All impoundments of waters identified as waters of the United States . . . ;
. . . All tributaries . . . of waters identified [in certain portions of the rule];
. . . All waters adjacent to [certain waters identified in the rule] . . . , including wetlands, ponds, lakes,

...