Clean Water Act
Water quality is of the utmost importance to the beach-going public, and maintaining or improving it is one of the major goals of the Surfrider Foundation. The Clean Water Act is the national law most applicable to water quality, and was created by Congress to help maintain and protect the nation’s waters for drinking, swimming, fishing, and surfing.
2012 was the 40th Anniversary of the Clean Water Act. Several environmental organizations held various events and conducted campaigns to remind people of the importance of the Clean Water Act and the gains in water quality that have occurred because of it. A My Clean Water Act website and Facebook page were set up to publicize some of these events and issues. Learn more on Surfrider's Coastal Blog.
The Clean Water Act (“CWA”) is one of the most important environmental laws in the country, and one that Surfrider deals with on an almost daily basis. The CWA establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. The basis of the CWA was enacted in 1948 and was called the Federal Water Pollution Control Act, but growing public awareness and concern for controlling water pollution led to sweeping amendments in 1972. "Clean Water Act" became the Act's common name with amendments in 1977.
The 1977 amendments:
- Established the basic structure for regulating pollutants discharges into the waters of the United States.
- Gave EPA the authority to implement pollution control programs such as setting wastewater standards for industry.
- Maintained existing requirements to set water quality standards for all contaminants in surface waters.
- Made it unlawful for any person to discharge any pollutant from a point source into navigable waters, unless a permit was obtained under its provisions.
- Funded the construction of sewage treatment plants under the construction grants program.
- Recognized the need for planning to address the critical problems posed by nonpoint source pollution.
Subsequent amendments modified some of the earlier CWA provisions. Revisions in 1981 streamlined the municipal construction grants process, improving the capabilities of treatment plants built under the program. Changes in 1987 phased out the construction grants program, replacing it with the State Water Pollution Control Revolving Fund, more commonly known as the Clean Water State Revolving Fund. This new funding strategy addressed water quality needs by building on EPA-state partnerships.
Over the years, many other laws have changed parts of the Clean Water Act. Title I of the Great Lakes Critical Programs Act of 1990, for example, put into place parts of the Great Lakes Water Quality Agreement of 1978, signed by the U.S. and Canada, where the two nations agreed to reduce certain toxic pollutants in the Great Lakes. That law required EPA to establish water quality criteria for the Great Lakes addressing 29 toxic pollutants with maximum levels that are safe for humans, wildlife, and aquatic life. It also required EPA to help the States implement the criteria on a specific schedule.
Former Congressman Jim Oberstar briefly discusses the history of the Clean Water Act on its 40th anniversary.
What It Does
The Act was passed in order to protect, “restore, and maintain the chemical, physical, and biological integrity” of the United States’ surface waters. By placing regulations on sources of water pollution, the Clean Water Act attains and maintains a level of water quality that supports the “protection and propagation of fish, shellfish, and wildlife” and “recreation in and on the [United States’] waters.” In an effort to control water pollution, the CWA outlaws discharge of pollutants from any “point source” without a permit. (CWA Section 402). This requirement is the basis of the National Pollutant Discharge Elimination System (NPDES).
“Point source” refers to any “discrete conveyance” which includes but is not limited to any pipe, ditch, channel, tunnel, landfill leachate collection system, concentrated animal feeding operation (“CAFO”), or spillway that can transport pollutants into waterways.
“Nonpoint source” (including “urban runoff”) is water that drains over land and reaches waterways from diffuse surface areas. Urban runoff is water that drains off of any urban area during both dry weather and wet weather.
Non Point Source Pollution has been shown to be a leading cause of water pollution in rivers and oceans and is a frequent cause of beach health warnings and closures. In response to this problem, the CWA was amended in 1987 to require medium and large municipalities to obtain NPDES: National Pollutant Discharge Elimination System permits for storm water discharges. The stormwater discharges are actually considered point sources because the water is collected and discharged via a "discrete conveyance". Although fertilizers, herbicides, and insecticides are known to be major sources of pollution, agricultural stormwater discharges are specifically exempted from Clean Water Act permit requirements.
Section 404 and 401
Section 404 of the Clean Water Act requires a permit from the Army Corps of Engineers for activities that would result in the discharge of fill into waterways and wetlands. The Corps’ 404 jurisdiction includes all waters which are used in interstate or foreign commerce; all interstate waters (including wetlands, lakes, rivers); and wetlands connected to navigable bodies of water. Section 401 of the CWA allows states to determine whether a Section 404 permit issued by the Corps complies with state water quality standards. Farming, forestry, and ranching activities are exempted from the section 404 permit requirement, unless the purpose of the activity in question is specifically to convert wetlands to uses they were not previously subject to (such as filling wetlands to farm on the newly filled land).
Section 401(a) of the Clean Water Act states that for any applicant for a Federal permit to conduct any regulated activity (e.g. construction, discharge, etc.) within navigable waters shall provide the permitting agency (U.S. Army Corps of Engineers, a Coast Guard permit or license from the Federal Energy Regulatory Commission) with a certification from the State in which the project is located that any such discharge will comply with the applicable provisions of Sections 301, 302, 303, 306, and 307 of the Clean Water Act. This State certification is referred to as "Section 401 Water Quality Certification."
Applicants receiving a section 404 permit are required to obtain a section 401 water quality certification from the local state agency that oversees 401 certifications. Issuance of a certification means that the state anticipates that the applicant's project will comply with state water quality standards and other aquatic resource protection requirements under the state’s authority. The 401 Certification can cover both the construction and operation of the proposed project.
For Section 404 permitting the Corps has developed general permits to streamline the permitting process for specific activities. The Corps reviews a proposed project to determine if an individual 404 permit is required, or if the project can be authorized under a general permit. The general permits may also need 401 Certification from states. Some states have already approved, denied or partially denied specific general permits.
The trigger for 401 Certification is applying for a federal permit or license to conduct any activity that might result in a discharge of dredge or fill material into water or non-isolated wetlands or excavation in water or non-isolated wetlands as defined in the CWA.
An article "Trickle Down" Environmentalism appeared in the March-April 2003 issue of Surfrider Foundation's publication Making Waves. This article discusses how Federal legislation such as the Clean Water Act "trickles down" to the states and local communities and how such legislation translates into local activism.
Clean Water Act Case Study: Surfrider Foundation’s Early Victory against Humboldt Pulp Mills documents one of Surfrider's most significant victories that utilized the power of the Clean Water Act.
Also see EPA summary of the Clean Water Act
The River Network has provided an online course to learn the basics of the Clean Water Act.
- 33 U.S.C. § 1251 et seq.
- 33 U.S.C. § 1251(a)(2).
- 33 U.S.C. 1342.
- 33 U.S.C. § 1362(14).
- 33 U.S.C. §§ 1342(p), 1362(14); 40 C.F.R. § 122.26.
- 33 U.S.C. § 1362(14).
- 33 U.S.C. § 1344(f).