Clean Water Act

The Clear Water Act (CWA) "establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters," according to the U.S. Environmental Protection Agency (EPA). Its basis is the 1948 Federal Water Pollution Control Act, which was expanded in 1972 and became known as the "Clean Water Act" in 1977, after the passage of amendments. ^[1]

"The CWA made it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained," explains the EPA website. "EPA's National Pollutant Discharge Elimination System (NPDES) permit program controls discharges. Point sources are discrete conveyances such as pipes or man-made ditches. Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters." ^[1]

Cooling Water Intake Structure Regulations

Section 316(b) of the Clean Water Act (CWA) requires the EPA to ensure that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available (BTA) for minimizing adverse environmental impacts, including thermal pollution from coal plants. The EPA has been in the process of developing a rule that will define how States will establish standards for cooling water intake structures at large power plants, and is expected to be published in the Federal Register in September 2010. The rule will apply to large existing power plants that withdraw 50 million gallons per day or more and that use at least 25 percent of their withdrawn water for cooling purposes only: an estimated 422 fossil-fueled and 38 nuclear power plants representing over 308 and 52 GW of existing capacity, respectively.^[2] The rule has been repeatedly challenged by industry lawsuits^[2], prompting states like CA to move forward with their own regulations.^[3]

Application to power plants

On April 1, 2009, the U.S. Supreme Court ruled in a series of cases -- Entergy v. EPA (07-588), PSEG Fossil LLC v. Riverkeeper Inc. (07-589) and Utility Water Act Group v. Riverkeeper Inc. (07-597) -- that the EPA may rely on "cost-benefit analysis in setting the national performance standards," when applying the CWA to power plant cooling systems. ^[4]

The CWA requires "power plants that use at least 50 million gallons of water a day to generate steam for electricity" to use the "best technology available for minimizing adverse environmental impact" cooling water intake structures. Justice Antonin Scalia wrote in the majority opinion that the CWA wording "'best technology available,' even with the added specification 'for minimizing adverse environmental impact,' does not unambiguously preclude cost-benefit analysis." ^[5] Legal Times called the ruling a "pro-business decision," ^[6] but environmental groups pointed out that the ruling allowed, but did not mandate, that the EPA include a cost-benefit analysis. The ruling stated that, under the CWA, the EPA may require power plants to use "the technology that achieves the greatest reduction in adverse environmental impacts at a cost that can reasonably be borne by the industry." ^[5]

The issue was relevant to older power plants. Newer plants are designed with closed-cooling systems that reduce the rate of killing small aquatic creatures by 98 percent, but "it is extremely costly to implement such systems at older plants" -- on the order of $3.5 billion annually. Less expensive cooling-system upgrades "would reduce the loss [of aquatic life] by 80 to 95 percent," reported the Washington Post. ^[7]

In July 2010, the U.S. Court of Appeals for the Fifth Circuit granted EPA's request to take back part of a rule on cooling water intake structures relating to existing facilities so it can consider what might be appropriate requirements (ConocoPhillips v. EPA, 5th Cir., No. 06-60662, 7/23/10). Industries are particularly concerned about the requirements because of the high costs associated with retrofitting cooling towers. According to a 2010 report, "Special Reliability Scenario Assessment: Resource Adequacy Impacts of Potential U.S. Environmental Regulations" by the North American Electric Reliability Corp., an estimated 33 gigawatts to 36 gigawatts of generating capacity could be forced to be retired, depending on how stringent the cooling tower rule might be.^[8] A 2010 study by The Brattle Group, "Potential Coal Plant Retirements Under Emerging Environmental Regulations" found that 11,000 to 12,000 MW of coal power could retire if cooling towers are mandated. According to the report, if scrubbers and cooling towers are required, it could shut down every merchant coal plant (plants that sell power into competitive wholesale markets) in the Texas ERCOT region.^[9]

Application to mountaintop removal mining

On March 4, 2009, Representative Frank Pallone introduced H.R.1310, also known as the Clean Water Protection Act. The bill would amend the CWA, "to clarify that fill material" -- which "replaces portions of the waters of the United States with dry land or which changes the bottom elevation of a water body" -- "cannot be comprised of waste." ^[10] According to a statement from Rep. Pallone's office, the bill "restores the prohibition on using waste as 'fill' that had been included in the U.S. Army Corps of Engineers' regulations since 1977." The bill would restrict the practice of mountaintop removal mining.^[11]

In early May 2002, the US Environmental Protection Agency and the Corps of Engineers finalized changes to the definition of “fill material” that the corps can legally authorize to be dumped into streams, redefining mountaintop removal waste as “fill material” that the corps can permit to be dumped. The change came after federal Judge Charles H. Haden II of the Southern District of West Virginia's May 2 ruling that EPA and the corps don’t have authority to redefine mining waste as fill, thus undoing Haden's ruling.^[12]

"It is unacceptable to allow the excess spoil from this type of mining to be dumped in mountain streams where it can pollute waterways, and in some cases potentially endanger the lives of area residents," Pallone was quoted as saying, in the statement. "The federal government should not continue to give massive mining companies a free pass to dump their waste into nearby streams, and should instead protect residents who have been negatively impacted by this activity for too long."^[11]

At the beginning of April 2010, the EPA's Lisa Jackson laid out new mountaintop removal guidelines, which may put the breaks on the practice in Appalachia and elsewhere, where valleys are filled with mining debris. Jackson stated that valley fills likely violate Clean Water Act requirements in most cases.^[13]

In late June 2010, however, the U.S. EPA gave the Army Corps of Engineers a green light for the Pine Creek Mine permit, a mountaintop removal mining site located in Logan County, W.Va. The permit was the first decision the EPA issued under its new mountaintop mining guidelines. Environmentalists argued that the new MTR guidelines were understood to provide greater protection for headwater streams by curbing the practice of dumping waste in neighboring valleys to create what is known as valley fills.^[14]

Application to various bodies of water

On April 2, 2009, Senator Russell Feingold introduced S.787, also known as the "Clean Water Restoration Act." The bill would amend the CWA, to "clarify the jurisdiction of the United States" and establish the CWA's application to U.S. waters, including interstate wetlands, tributaries, territorial seas, "intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds." The bill is in reaction to two U.S. Supreme Court decisions, Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (531 U.S. 159, 2001) and Rapanos v. United States (547 U.S. 715, 2006), which the bill blames for "confusion, permitting delays, increased costs, litigation, and reduced protections for waters of the United States." ^[15]

A press release from Sen. Feingold's office states that "rivers, streams and wetlands, which were long protected under the Clean Water Act (CWA) ... are now in jeopardy of losing protections," because of the two Supreme Court decisions. "Every day Congress fails to reaffirm Clean Water Act protections, more and more waters are stripped of their protections, jeopardizing the drinking water of millions of Americans, as well as our nation's wildlife habitats, recreational pursuits, agricultural and industrial uses, and public health," Feingold is quoted in the statement as saying. ^[16]

Application to Maine dams

In 2005, Hunton & Williams filed a "friend of the court" (amici curiae) brief, on behalf of the National Association of Home Builders and the Foundation for Environmental and Economic Progress. The brief was filed in the U.S. Supreme Court case of S. D. Warren Co. v. Maine Board of Environmental Protection (547 U.S. 370, 2006), in support of the S. D. Warren Company. The company, which operates hydroelectric dams in Maine, argued that the Clean Water Act did not require it to seek water quality certifications from the state government, when renewing its federal licenses with the Federal Energy Regulatory Commission. The Supreme Court disagreed. Maine's Board of Environmental Protection had required the company to maintain a "minimum stream flow and to allow passage for certain fish and eels." ^[17]

The brief -- co-authored by Hunton's Virginia S. Albrect, Karma B. Brown and Kathy Robb, the director of the firm's Water Policy Institute -- supported S. D. Warren Company, arguing that requiring the company to obtain water quality certifications from the Maine government "improperly expands the CWA," or Clean Water Act. The brief compared water passing through a dam to water "stirred by a spoon, pushed by an oar, or splashed by a hand," arguing that "such movements of water" should not trigger application of the Clean Water Act. ^[18]

Effort to close loopholes in Clean Air Act and Clean Water Act

On March 14, 2013 Congressman Matt Cartwright (PA) and Congressman Jared Polis (CO) introduced two bills in the U.S. House of Representatives to close loopholes in the Clean Air Act and Clean Water Act for fracking operations. he two bills introduced today—titled the “Bringing Reductions to Energy’s Airborne Toxic Health Effects”, or BREATHE Act, and the “Focused Reduction of Effluence and Stormwater runoff through Hydrofracking Environmental Regulation,” or FRESHER Act.

Specifically, the BREATHE Act, introduced by the two Congressmen and at least 32 co-sponsors, would close a loophole in the Clean Air Act that currently allows the oil and gas industry to release large amounts of pollution into the air, and lists hydrogen sulfide as a hazardous air pollutant. The FRESHER Act, introduced by Congressmen Cartwright and Polis and at least 37 co-sponsors, would close a loophole in the Clean Water Act that exempts the oil and gas industry from permitting requirements for industrial stormwater runoff.^[19]

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