Subchapter VI—State Water Pollution Control Revolving Funds

Grants to states for establishment of revolving funds, Sec. 601

Capitalization grant agreements, Sec. 602

Water pollution control revolving loan funds, Sec. 603

Allotment of funds, Sec. 604

Corrective actions, Sec. 605

Audits, reports, fiscal controls, intended use plan, Sec. 606 Authorization of appropriations, Sec. 607

from urban and rural areas, and habitat destruction. For example, the Clean Water Act requires:

• Establishment of water quality standards by the states and tribes for their waters and development of pollution control programs to achieve them

• Establishment of a minimum level of wastewater treatment for all publicly owned facilities

• Meeting of performance standards by major industries to ensure pollution control

• Funding by the Federal government to states and communities to help meet their wastewater infrastructure needs

• Protection of wetlands and other aquatic habitats through a permitting process that ensures environmentally sound development

The 1972 Clean Water Act declared as its objective the restoration and maintenance of the chemical, physical, and biological integrity of the nation's waters. Two goals were established: (1) zero discharge of pollutants by 1985; and (2) as an interim goal, water quality that is fishable and swimmable by the middle of 1983. These goals were, of course, not being met.

Aside from research and related programs provision, essentially, the Clean Water Act consists of three major parts:

1. Regulatory requirements under the title of Subchapter III

2. Provisions that authorize federal financial assistance for municipal sewage treatment plant construction under the titles of Subchapters II and VI

3. Permits and enforcement under the titles of Subchapters IV and III, respectively.

In terms of historical perspective, these parts are discussed in sequence next.

Regulatory Requirements

As mentioned previously, the act requires each state and tribe to establish water quality standards for all bodies of water in their jurisdictions (Section 303). The Clean Water Act utilizes both water-quality- and technology-based effluent limitations to meet these standards (Sections 301 and 302). Technology-based effluent limitations are normally specified in discharge permits for industries, while water-quality-based effluent limitations are normally specified in discharge permits for publicly owned treatment works (POTWs), although the requirement of secondary treatment in publicly owned treatment works is also technology-based. Water-quality-based effluent limitations are derived by a water quality modeling which, for simple discharges, uses the Streeter-Phelps equation.

Because of strict demands imposed on those who are regulated to achieve higher and higher levels of pollution abatement, the act is a technology-forcing statute. For example, the act started with only requiring the implementation of the secondary and best practicable treatment (BPT) levels of treatment. The requirements, however, gradually increased to requiring the use of the best available technology (BAT) economically achievable, control of toxics, and control of nonpoint pollution sources.

The following scenario depicts the technology-forcing nature of the Clean Water Act. Publicly owned treatment works were once required to meet the secondary treatment level of treatment by July 1, 1977. By this date, industries were also required the equivalent BPT level of treatment. Municipalities that were unable to achieve the secondary treatment by the deadline were allowed to apply for extensions on a case-by-case basis up to July 1, 1988. According to an estimate by the EPA, 86% of all cities met the 1988 deadline with the remainder being put under judicial or administrative schedules requiring compliance as soon as possible.

By no later than March 31, 1989, the act required greater pollutant removal than BPT, generally forcing that industry use BAT technology. Toxic pollutants are generally the target of BAT levels of control. For industrial sources utilizing innovative or alternative technology, compliance extensions of as long as two years were available.

Control of toxic pollutant discharges has now become a key focus in water pollution abatement programs. For waters expected to remain polluted by toxic chemicals even after industrial dischargers have installed the best available cleanup technologies required under the law, the states are required to implement control strategies, in addition to the BAT national standards. In the 1987 Clean Water Act amendments, development of management programs for these post-BAT pollutant problems was a prominent element. This would likely be a key continuing aspect of any Clean Water Act amendments.

It should be realized that all these extensions for compliance are in the nature of forcing the development of technology to achieve compliance. Thus, it is no longer sufficient that the rule of thumb that has been traditionally used in environmental engineering be used in an effort to meet requirements. Instead, the design of unit operations and processes to achieve compliance should be instituted in a more rational and analytical approach.

The original attention of the Clean Water Act prior to the 1987 amendments was primarily directed at point source pollution, which includes wastes discharged from discrete and identifiable sources such as pipes and other outfalls, and did not specifically address control of nonpoint pollution sources. Yet, nonpoint source pollution is equally damaging to water quality. This type of pollution includes stormwater runoff from agricultural lands, forests, construction sites, and urban areas. It is this type of pollution that was the cause of a Pfiesteria piscicida outbreak in August 1997 in the Chicamacomico River on the Eastern Shore of Maryland. This is a microorganism that releases toxic substances and is widely believed to be responsible for major fish kills and diseases in several mid-Atlantic states.

As the rain runs off, it picks up pollutant including sediments, toxic materials, nutrients, and conventional wastes that can degrade water quality; these form the nonpoint source pollution. Except for general planning activities, little attention had been paid to these new types of pollution, despite estimates that nonpoint source pollution represents more than 50% of the nation's remaining water pollution problems.

In the 1987 amendments, Section 319 was added. This section authorizes measures to address nonpoint source pollution by directing states to develop and implement nonpoint pollution management programs. In these programs, states were encouraged to pursue groundwater protection activities as part of their overall nonpoint pollution control efforts. Federal grants were authorized to support demonstration projects and actual control activities.

Although the act imposes great technological demands, it also recognizes the need for comprehensive research on water quality problems as stipulated in Title I. Funds were provided for research in the Great Lakes (Section 118) and Chesapeake Bay (Section 117), in-place toxic pollutants in harbors and navigable waterways (Section 115), and water pollution resulting from mine drainage (Section 107). In addition, the act also provides support to train personnel who operate and maintain wastewater treatment facilities (Sections 109 and 110).

Federal Financial Assistance

The following treatment traces the history of federal financial assistance to the states. The federal government has been giving grants for planning, design, and construction of municipal sewage treatment facilities since 1956. Beginning with the 1972 amendments, Congress has continued to expand this activity. Since that time, Congress has appropriated $69 billion in funds to aid wastewater treatment plant planning, design, and construction. This appropriation has been made possible through Titles II and VI of the Act. It is estimated that $140 billion more would be required to build and upgrade needed municipal wastewater treatment plants in the United States and for other types of water quality improvement projects that are eligible for funding under the Act.

Under the Title II construction grants program established in 1972, federal grants were made available for several types of projects such as secondary treatment, advanced treatment, and associated sewers. Grants were given based on a priority list established by the states (Section 216). The federal share of the total project cost was generally as much as 55% (Section 202). For projects using innovative or alternative technology such as reuse or recycling of water, as much as 75% federal funds were available. Recipients were not required to repay the federal grants.

Interested parties and policy makers have debated the tension between Title II construction grants program funding needs and the overall federal spending and budget deficits. The 1987 amendments to the Act dealt with this apparent conflict by terminating federal aid for wastewater treatment construction in fiscal year 1994, but providing a transition period toward full state and local government responsibility for financing after this date. Grants under the traditional Title II were continued only through fiscal year 1990.

To allow the states to be self-sustaining in financing their wastewater construction projects, Title VI was created to replace Title II as a federal funding mechanism. This title authorizes grants to capitalize state water pollution control revolving funds or loan programs (Section 603) beginning in fiscal year 1989. States contribute 20% matching funds, and under the revolving loan fund concept, monies used for wastewater treatment construction will be repaid to a state fund, to be available for future construction in other communities. All states now have functioning loan programs, but the shift from grants to loans since fiscal year 1991, after the Title II monies were discontinued in 1990, has not been easy for some. The new financing requirements have been especially a problem for small towns that have difficulty repaying project loans. Because of this problem, however, although statutory authorization for grants to capitalize state loan programs expired in 1994, Congress has continued to provide annual appropriations.

Permits and Enforcement

As mentioned earlier, the 1972 Clean Water Act declared as its objective the restoration and maintenance of the chemical, physical, and biological integrity of the nation's waters. To achieve this objective, the Act assumes that all discharges into the nation's waters are unlawful, except as authorized by a permit. Several sections of the Act require permits and licenses: Sections 402, 404, 405, 403, and 401. Whereas some of these sections will be specifically addressed and explained in the following, the others will not.

Because of discharge permit requirements, some 65,000 industrial and municipal dischargers must obtain permits from the EPA or qualified states. This is required under the National Pollutant Discharge Elimination System (NPDES) program of Section 402 of the Act. An NPDES permit requires the discharger to attain technology-based effluent limits (BPT or BAT for industry and secondary treatment for municipalities), or more stringent limits for water quality-limited waters. Permits specify the control technology applicable to each pollutant, the effluent limitations a discharger must meet, and the deadline for any compliance that must be met. For POTWs with collection systems that receive discharges from industries, they are required to incorporate a pretreatment program for their industrial contributors. POTWs are required to maintain records and to carry out effluent monitoring activities. Permits are issued for 5-year periods and must be renewed thereafter to allow continued discharge.

The NPDES permit incorporates numerical effluent limitations and best management practices. Whereas the BPT and secondary limitations focus on regulating discharges of conventional pollutants, the more stringent BAT limitations emphasize controlling toxic pollutants such as heavy metals, pesticides, and other organic chemicals. BAT limitations apply to categories of industries. In addition, the EPA has issued water quality criteria for more than 115 pollutants, including 65 named priority pollutants. These criteria recommend ambient, or overall, concentration levels for the pollutants and provide guidance to states for establishing water quality standards that will achieve the goals of the Act.

Disposal of dredge or fill materials into receiving bodies of water, including wetlands, is controlled under a separate type of permit program. Authorized by Section 404 of the Act, the U.S. Army Corps of Engineers administers this program subject to and using environmental guidance developed by EPA. Some types of activities such as certain farming, ranching, and forestry practices that do not alter the use or character of the land, are exempt from permit requirements. In addition, some construction and maintenance activities that are deemed not to affect adversely the environment are exempt from permit requirements. As has been done to Michigan and New Jersey, the EPA may delegate certain Section 404 permitting responsibility to qualified states.

Due to the nature of wetlands, the wetlands permit program is a controversial part of the law. Some of the wetlands are privately owned. If the owner wants to develop the area, the law can intrude and impede private decision of what to do with the property. On the other hand, environmentalists seek more protection for remaining wetlands and want limits on activities that can take place there.

The other sections of the Act requiring permits and licenses include using and disposing of sewage sludge (Section 405), ocean discharge (Section 403), and water quality certification (Section 401). The Section 401 certification, obtainable from the state, will show that the project does not violate state water quality standards.

The NPDES permit is the principal enforcement tool of the act. The EPA may issue a compliance order or bring a civil suit in U.S. district courts against persons violating the terms of a permit. The penalty for violation can be as much as $25,000 per day. Stiffer penalties are rendered for criminal violations such as negligent or knowing violations. Penalties of as much as $50,000 per day or a three-year imprisonment, or both may be rendered. For knowing-endangerment violations, such as knowingly placing another person in imminent danger of death or serious bodily injury, a fine of as much as $250,000 and 15 years in prison may be rendered. Finally, the EPA is authorized to assess civil administrative penalties for certain well-documented violations of the law. Section 309 of the Act contains these civil and criminal enforcement provisions. Working with the Army Corps of Engineers, the EPA also has responsibility for enforcing against entities who engage in activities that destroy or alter wetlands.

Similar to other federal environmental laws, enforcement is shared by the EPA and the states. Because of delegation agreements (to be addressed next), however, the majority of actions taken to enforce the law are undertaken by states. This accords the states the primary responsibility, with the EPA having oversight of state enforcement. The EPA also retains the right to bring a direct action when it believes that a state has failed to take timely and appropriate action or where a state or local agency requests EPA involvement.

Finally, individuals may bring a citizen suit in U.S. district courts against persons who violate a prescribed effluent standard or limitation (Section 505). Individuals may also bring citizen suits against the administrator of the EPA or equivalent state official for failure to carry out a nondiscretionary duty under the Act.

Federal and State Relationships

Under the Clean Water Act, federal jurisdiction is broad, especially regarding the establishment of national standards or effluent limitations. For example, the EPA issues regulations containing the BPT and BAT effluent standards applicable to categories of industrial sources such as iron and steel manufacturing, organic chemical manufacturing, and petroleum refining. Certain responsibilities, however, are delegated to the states, and this act stipulates a federal-state partnership in which the federal government sets the agenda and standards for pollution abatement, while states carry out day-to-day activities of implementation and enforcement (Section 510). Delegation agreements are signed between the governor of a state and the EPA.

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