Lately, I have been asked a lot of questions about the Clean Water Act ("CWA"). This may not come as a surprise, as issues concerning the CWA are frequently in the media.
What is the CWA? The CWA is a federal act that has been around since the 1940s that underwent substantial revision in 1972 and has been periodically revised since then. The full text of the CWA can be found here: http://www.gpo.gov/fdsys/pkg/USCODE-2010-title33/pdf/USCODE-2010-title33-chap26.pdf
In short, the CWA regulates discharges of pollutants into the waters of the United States. In fact, all discharges into the nation's waters are unlawful, unless specifically authorized by permit.
Specifically, the congressional declaration of the goal behind the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." See 33 U.S.C. §1251. Further, the national interim goal has been that all waters be fishable and swimmable wherever possible.
The CWA consists of 2 major parts: one authorizes federal financial assistance for municipal sewage treatment plant construction, while the other provides the regulatory requirements that apply to industrial and municipal discharges. The most common questions appear concerning the latter.
One of the most common questions is whether the CWA applies to surface waters – it does, in fact. The CWA regulates quality standards for surface waters.
While federal jurisdiction remains broad in this area, the CWA is said to reflect a federal-state partnership "where federal guidelines, objectives and limits were to be set under the authority of the U.S. Environmental Protection Agency, while states, territories and authorized tribes would largely administer and enforce the CWA programs, with significant federal technical and financial assistance." The CWA also permits citizen enforcement.
Who implements the CWA? The EPA Office of Water (OW) is the federal agency that is responsible for implementing the CWA and the Safe Drinking Water Act ("SDWA"), and several other statutes.
With regard to hydraulic fracturing operations, the CWA authorizes the National Pollutant Discharge Elimination System ("NPDES") permit program which regulates the disposal of flowback from hydraulic fracturing into surface waters. The SDWA regulates the surface emplacement of fluids through the Underground Injection Control ("UIC") program. The Energy Policy Act of 2005 excluded hydraulic fracturing, except when diesel fuels are used, for oil, gas or geothermal production from regulation under the UIC program.
Although this primer does not address the application of state environmental laws, which are also intricate, it should be noted that the interplay of state and federal environmental regulation is complex and often fact-specific.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
