Clean Water Act      The 1972 Clean Water Act [33 U.S. Code sec. 1251 et. seq.] gives EPA the authority to set effluent standards on an industry-by-industry basis.

     Clean Water Act discharge permits. The Act prohibits discharge of pollutants into U.S. waters unless a National Pollution Discharge Elimination System (NPDES) permit has been obtained.

     The discharge permit relates to "discharges into the navigable waters."  33 U.S. Code sec. 1342. Navigable waters include "all waters of the United States." 40 CFR sec. 122.2.  That term has been given the broadest possible interpretation to include most intrastate waters. Most states have been given authority to issue the NPDES permits. The primary purpose of each permit is to establish enforceable effluent limitations, which are technology-based and are rather complicated. Compliance depends largely upon self-monitoring.

     Water quality standards and policy.   Water quality standards are established by the states and consist of use classifications and criteria that, if not exceeded, will protect those uses.  For example, water uses are pubic drinking water, propagation of fish and wildlife, recreation, industrial, and swimmable waters.  In October 2000 the federal EPA proposed modifying the 1980 Ambient Water Quality Criteria National Guidelines. Those guidelines aim to get states to adopt numeric values limiting chemicals harmful to us humans.

      Each state adopts an anti-degradation policy [see below] designed to maintain both current uses and uses designated in the state water quality standards.  40 CFR sec. 131.12.  

     Water quality standards and anti-degradation policy are complementary regulatory devices. The first limits the concentration of pollutants and below those limits streams are not safe for specified uses. The second says that current water quality may not be lowered (degraded), even if additional pollution would not violate water quality standards.

     Impaired streams. For some streams effluent limitations are not stringent enough to implement water quality standards.  The CleanWater Act requires states to identify such waters, often portions of well-known streams.  Commonly this mandate spotlights streams where there are multiple dischargers. 

     Two federal strategies have emerged to deal with heavily polluted streams.  The first approach, TMDL, involves calculating the total load of pollutants that a segment of a stream can receive without exceeding water quality criteria.  The second tactic, from the Water Quality Act of 1987, requires states to make lists of "impaired" streams and to identify point sources of toxic pollutants and to develop "individual control strategies" (ICSs).

     TMDL. The first strategy, TMDL (Total Maximum Daily Load), is a winner. Environmental advocates ask U.S. district courts to require the federal EPA to intervene when state governments have not acted. This is exactly what has happened in West Virginia in a lawsuit in which OVEC participated.

      The successful result was a consent decree, signed by the district court judge, memorializing a settlement agreement with the federal EPA. The TMDL approach is holistic in that it covers all pollution sources in any watershed -- point, nonpoint, natural background sources, and regardless of whether a point source of pollution is using the best available technology. 

     The federal EPA is required by the consent decree in the West Virginia lawsuit to draft TMDLs for 46 rivers and lakes and for over 500 acid mine drainage (AMD) impacted stream segments. EPA is to draft TMDLs for the 46 "section 303(d)" streams at a rate of about seven per year from 1997 through 2002 and all TMDLs are subject to public comment.

     The first seven streams were:  Blackwater River, Potomac River (South Branch; South Branch, North Fork; South Branch, South Fork), Lunice Creek, Mill Creek, and Anderson Run. The 500 AMD streams will have TMDLs by 2006.  The TMDL process is explained at two web sites: http://www.epa.gov/... and http://www.dep.state.wv.us/... The 303(d) list of streams and methodology:  http://www.dep.state.wv.us/...

     Anti-TMDL sentiments have been expressed by some businesses. They stress infringement of property rights and invite fear among farmers and landowners concerning imposed costs for clean-up of streams affected by runoff from farms.

     Nationally, the invigorated TMDL process caught many states off guard. TMDL largely was overlooked in the 1980s and 1990s as states focused on bringing point sources into compliance. Suggestions for reforming the TMDL process were made in a June 2001 report in the National Research Council TMDL Study. The report bolstered resistance by opponents of TMDL.

     Anti-TMDL lawsuits ensued. In July 2001 the Bush II administration urged a delay in consideration of a federal appeals court lawsuit challenging a TMDL program. It was thought that the delay was sought to pursue weakening of the TMDL process.

      Clean-up plans. Around the country EPA has heightened pressure on states to produce acceptable clean-up plans so that states can enforce Clean Water Act provisions. There are, of course, practical difficulties in enforcing limits for runoffs in rural farming areas. Nonetheless, the watershed-by-watershed approach to stream clean-up has gained political favor at the federal EPA. The EPA has made separate agreements with the state of West Virginia to improve its rivers and streams as part of its ongoing watershed assessment program. If the state fails to meet certain interim deadlines, EPA has agreed to step in and accomplish the task. 

      Impaired streams. In September 1998 West Virginia's DEP produced its biennial list of impaired streams, that is, those not meeting federal and state water quality limits.  On the list were 488 streams tainted by acid mine drainage, 60 streams polluted by acid rain, and 99 streams impaired by pollutants of unknown sources. The list is updated annually and you can access the current 303(d) list of impaired streams at http://www.dep.state.wv.us/...  The impaired streams list for Kentucky can be accessed at http://water.nr.state.ky.us/...

     A 303(d) stream can be delisted. The Upper Blackwater River through Canaan Valley was delisted in a lawsuit in Kanawha County in May 2001.

      Standards. In West Virginia water quality standards are set by the Environmental Quality Board [WV Code sec.22B-3-4].  The standards are rules and appear at 46 CSR 1. Per a federal district court ruling the federal EPA reviews and approves state water quality standards. In June 1999 EPA disapproved West Virginia's standards for background pollution levels, measurements of minute amounts of chemicals, fish toxic limits, and standards for iron and chromium. 

      West Virginia's 1981 anti-degradation policy, as modified in 1995, is a rule and appears at 46 CSR 1-4. "It is the policy of the State of West Virginia [that] the waters of the state shall be maintained and protected...." "High quality waters" are to be maintained unless the Board concludes, after public comment and hearing, that "allowing lower water quality is necessary to accomodate important economic or social development...." Unfortunately, West Virginia lacks a plan to implement the policy acceptable to the EPA.

     In June 1999 EPA told the Environmental Quality Board (EQB) to adopt adequate methods to support its anti-degradation policy or else EPA would select those methods. A month before, the West Virginia Rivers Coalition had filed a notice of intent to sue EPA for not compelling the state board to write an implementation policy.

     From then on there was a running battle between the Clinton-era EPA and this state's EQB. However, once the Bush II administration took office, EPA backed down from its strong stance on anti-degradation. The 2001 edition of the West Virginia Legislature passed an egregious anti-degradation bill. It has more loopholes than a piece of federal tax legislation. The EQB moved on its proposed anti-degradation rule in May through July 2001.

     This swiss cheese legislative regulatory approach removed all non-point sources from anti-degradation review -- including logging, oil and gas, coal (valley fills), highways. Existing NPDES permit holders are exempt unless there is significant increase of discharges. The trigger for review no longer is baseline quality but assimilative capacity, thus allowing higher levels of pollution before review kicks in.    

     One of the central issues in water quality policymaking is the degree of protection streams receive. The federal approach is to divide steams into two tiers of protection. Tier 2 streams meet water quality standards and are supposed to be maintained as such. The quality of Tier 1 streams may be lowered until water quality standards are met. Many in the West Virginia business community want to designate most of the state's streams as Tier 1 streams.

    3 Techniques. So far this discussion has focused on chemical-specific limitations.  Because of the difficulty in setting individual water-quality based permit limitations, states are relying more on whole effluent toxicity (WET). This involves laboratory testing of of effluent on selected species of aquatic life.   A third technique for limiting water polution is using biological assessments.   That is, comparing in-stream characteristics, such as species diversity and number, with the same characteristics of clean water.  All three techniques are necessary for limiting water pollution.
Last updated on Wednesday, July 25, 2001