Clean Water Act
The Clean Water Act is the principal federal statute regulating water pollution and protecting the nation’s “navigable waters.” The 1948 Federal Water Pollution Control Act serves as the basis of the Clean Water Act, and, in 1972, as public concerns grew regarding pollution, water pollution, and environmental protection, it underwent comprehensive amendment, providing the basic structure and elements of the Clean Water Act that we are familiar with today.
Except as permitted under the Clean Water Act, “the discharge of any pollutant by any person shall be unlawful,” and “discharge of a pollutant” is defined broadly to mean “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1311(a); 33 U.S.C. § 1362(12)(A). “Navigable waters” is then defined to mean “waters of the United States, including territorial seas.” 33 U.S.C. § 1362(7). Waterbodies that fall within the scope of that term are jurisdictional waters and subject to the Clean Water Act’s regulatory scheme. Waterbodies that fall outside of the scope of that term are not subject to the Clean Water Act and states may apply their own regulatory scheme. The Clean Water Act, does not, however, define ‘waters of the United States.’ Consequently, several rulemakings and agency guidance documents have been issued attempting to articulate and clarify the scope of the term, often spurring corresponding litigation [1].
To accomplish its objective of restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters, the Clean Water Act established several regulatory programs, including, for example, the National Pollutant Discharge Elimination System (NPDES) program—established pursuant to Section 402 of the Clean Water Act; the Dredge or Fill Discharge Permit program—established pursuant to Section 404; and the Certification of Water Quality—established pursuant to Section 401. Each of these programs can impose direct obligations on different aspects of the power system and each is described at a high-level below.
Section 402 establishes an effluent limitation permit system for discharges from point sources into waters of the United States—the National Pollutant Discharge Elimination System (NPDES) permit program. Point sources are defined under the Act as any discernible, confined and discrete conveyance from which pollutants are or may be discharged, including but not limited to, pipes, ditches, and tunnels. 33 U.S.C. § 1362(14). [2]NPDES permits specify numerical effluent limitations established in consideration of both technology-based effluent limits and water quality-based effluent limits. For specific industrial and commercial sources, including steam electric power generating facilities, EPA develops and issues national wastewater discharge standards (effluent guidelines), which are technology-based standards representing the greatest level of reduction attainable through the application of the best available pollutant control technologies economically achievable for that industry. For direct dischargers, these standards are then incorporated into their NPDES permits. NPDES Permits may be issued for up to five years, with renewal required thereafter for the discharges to continue permissibly. Stormwater is also a component of the NPDES program and industrial, municipal, construction, and transportation sources of stormwater point source discharges must be covered by an NPDES permit. EPA, or state’s authorized by the EPA, are responsible for issuing NPDES permits. In the Pacific Northwest, Oregon, Washington, Idaho, and Montana have all been authorized to carry out the NPDES program.
Nonpoint sources are not subject to any Clean Water Act permits or other federal regulatory requirements. However, per Section 319 of the Clean Water Act, states are directed to develop and implement nonpoint pollution management programs and have been encouraged to pursue nonpoint pollution control efforts; nonetheless, state regulation remains mixed. The Clean Water Act’s application to groundwater, a nonpoint source, and specifically the NPDES permit program’s applicability to groundwater has been a continuously contested and litigated question. However, in April 2020, the U.S. Supreme Court concluded that the Clean Water Act may be used to regulate pollution that originates from a point source and conveyed to navigable waters through groundwater.[3] Specifically, the Supreme Court found that an NPDES permit may be required if the pollutant discharged through groundwater is the “functional equivalent” of a direct discharge from the point source into navigable waters. What discharges satisfy the ‘functional equivalent’ test will be fact-specific; however, this ruling could have future implications for the energy sector, including coal ash ponds and natural gas pipelines. Another section of the CWA that is implemented through the NPDES program and specific to the electric sector is Section 316(b), which addresses existing power generating facilities and requires that the cooling water intake structures of power plants reflect the best technology available to minimize adverse environmental impact.
Section 404, the dredge or fill discharge permit program, regulates the discharge of dredged or fill material into waters of the United States, including wetlands. Pursuant to Section 404, a permit is required before dredged or fill material may be discharged into waters of the United States, unless the activity is specifically exempt from regulation. Section 404 regulates activities such as fill for development (e.g. buildings, structures, highways), utility line construction, dam or levee projects, and mining. If the discharge could result in a significant impact to waters of the United States, an individual permit is required, and individual permits are reviewed and issued by the U.S. Army Corps of Engineers (or states and tribes that have assumed the permitting process for certain waters), relying on guidelines developed by the EPA pursuant to Section 401(b)(1). If the discharge will have only minimal adverse effects, a general permit may be permissible.[4]
Lastly, Section 401—the water quality certification process, which has become somewhat of a flashpoint over the past several years for development, including energy facility development. Under Section 401, federal agencies may not permit any activity that may result in any discharge into waters of the United States unless a Section 401 water quality certification has been issued or the certification has been waived. Specifically, pursuant to Section 401, applicants for a federal license (such as a FERC license for a hydro facility) or permit (e.g. an NPDES permit) for activities that may result in any discharge into navigable waters of the United States must first receive a water quality certification, and states and authorized tribes where the discharge would originate are responsible for issuing the water quality certifications, verifying compliance with state, tribal, and federal water quality requirements. In issuing a certification, the certifying authority may approve the certification, approve the certification with conditions, or deny a certification. A certifying authority may also waive certification or waive by default by failing or refusing to act on the request for certification within a reasonable period of time (which shall not exceed a year) after receipt of the request. 33 U.S.C. § 1341(1)(a)(1). A federal agency may not issue the license or permit for the activity unless a water quality certification has been issued or waived.[5] Thus, Section 401 provides for a direct and significant grant of authority to states and authorized tribes as the water quality review essentially operates as a precondition for federal authorizations of such activities.
As summarized above, provisions of the Clean Water Act touch and regulate the energy industry and the various stages of electricity generation and production, from mining and extraction, to construction, to the operation of a generating facility whether it be a hydroelectric facility or a steam electric power generating unit. See the Environmental Effects of Generating Resources for some of the primary environmental effects of generating resources. For an in-depth description of the lifecycle impacts associated with electricity generation as well as additional information regarding the Clean Water Act, see of the Seventh Power Plan.
Recent Clean Water Act Regulatory Updates
Defining Waters of the United States
In April 2020, the Environmental Protection Agency (EPA) along with the U.S. Department of Army issued a final rule, the Navigable Waters Protection Rule, which redefined ‘waters of the United States.’ Specifically, under the April 2020 rule, ephemeral streams and wetlands that are not adjacent to and have something other than a direct surface hydrological connection to jurisdictional surface waters are no longer included within the scope of the term ‘waters of the United States’, and, therefore, those waterbodies are no longer subject to the Clean Water Act’s requirements and the protections afforded by the Act. The April 2020 rule went into effect in June 2020, and several states, tribes, and environmental groups immediately filed suit challenging the rule; as of April 7, 2021, most cases were stayed pending review of the rule by the new administration.[6] More specifically, on January 20, 2021, President Biden issued Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” which directed all executive departments and agencies to immediately review, and, as appropriate, take action to address the promulgation of federal regulations and actions during the last four years that conflict with the priorities outlined in the executive order. In June 2021, after finding the Navigable Waters Protection Rule is leading to significant environmental degradation, EPA and the Army Corps of Engineers announced their intention to commence a new rulemaking process to redefine “waters of the United States” and restore the protections in place prior to the 2015 Clean Water Rule.[7] As of November 4, 2021, EPA and the Corps have halted implementation of the Navigable Waters Protection Rule and are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime until further notice.[9] The EPA and Corps took this step after an order was issued by the U.S. District Court for the District of Arizona vacating and remanding the rule.[10] And November 18 ,2021, EPA and the Department of Army officially announced a signing of a proposed rule to revise the definition of “waters of the United States,” and, specifically, the agencies propose to restore the pre-2015 definition. Upon publishing in the federal register, the proposal will be open to public comment for 60 days..
Section 401 Water Quality Certification
As noted above, Section 401 provides a significant grant of authority to the states and authorized tribes to issue water quality certifications, and in recent years, states’ decisions, including denial of certifications, have resulted in litigation challenging the scope of the state authority and the timelines for review. In April 2019, then-President Trump issued Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” which, among other things, identified EPA’s Section 401 regulations and guidance as a source of confusion and uncertainty hindering development of energy infrastructure, and, specifically directed EPA to consult with states, tribes, and agencies in review of its Section 401 regulations and guidance.[11] In response, in July 2020, EPA issued a final rule, Clean Water Act Section 401 Certification Rule, which purported to update and clarify the substantive and procedural water quality certification process under Section 401, aiming to increase the predictability and timeliness of Section 401 review. Several groups filed suit challenging the rule,[12] and in June 2021, after reviewing the rule pursuant to President Biden’s Executive Order 13990, EPA issued a Notice of Intention to Reconsider and Revise the Clean Water Act Section 401 Certification Rule, noting it had identified significant concerns with a number of provisions relating to and potentially eroding the fundamental cooperative federalism principals of Section 401. It is expected a proposed rule will be issued in Spring 2022. However, on October 21, 2021, the U.S. District Court for the Northern District of California vacated and remanded EPA's 2020 certification rule.[13] As provided in the court’s order, the effect of this ruling is to temporarily reinstate EPA’s previous 1971 rule until a new certification rule is issued.
[2] Summary of Clean Water Act
[3] County of Maui, Hawaii v. Hawaii Wildlife Fund et al, 140 S. Ct. 1462 (2020).
[4] Permit Program under CWA Section 404
[5] CWA Section 401 Certification
[6] See State of California v. Andrew Wheeler et al., No. 3:20-cv-03005 (N.D. Cal); Conservation Law Foundation et al., v. U.S. Environmental Protection Agency et al., No. 1:20-cv-10820-DPW (Mass.); Puget Soundkeeper Alliance v. EPA, No. 2:20-cv-00907 (W.D. Wash); State of Washington v. EPA, No. 2:19-cv-00884 (W.D. Wash).
[7] EPA, Army Announce Intent to Revise Definition of WOTUS
[9] Current Implementation of “Waters of the United States”, last visited on November 4, 2021
[10] Pascua Yaqui Tribe, et al. v U.S. Environmental Protection Agency, Case No. 4:20-cv-00266-RM (Aug. 30, 2021)
[11] Executive Order 13868 was revoked pursuant to President Biden’s Executive Order 13990.
[12] See Del. Riverkeeper Network v. EPA, No. 2:20-cv-3412 (E.D Pa.); American Rivers v. Wheeler, No 3:20-cv-04636 (N.D. Cal); California v. Wheeler, No. 3:20-cv-04869 (N.D. Cal); S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-03062 (D.S.C.); Suquamish Tribe v. Wheeler, No. 3:20-cv-06137 (N.D. Cal).
[13] In re Clean Water Act Rulemaking, No. 20-cv-4636, et al. (Oct. 21, 2021)