1. Introduction to the Clean Water Act And Water Quality Regulation
Tracy Hester
Environmental Law
Fall 2019
September 9, 2019

2. Cuyahoga River Fire – 1969
United States v. Jones & Laughlin Steel Corp.  The complaint was very basic and did not seek to play up the fire--just the fact that the company had discharged "refuse matter" to the river in violation of the Rivers & Harbor Act of  The facts relating to the river fire were these:  The fire occurred just downstream from J&L's discharges.  It happened where a timber railfoad trestle crossed the river.  Oil and grease (probably from steel mill discharges) had collected in the river around the trestle bents.  Someone reportedly dropped a lighted cigarette butt into the collected oil and grease and it caught fire.  I saw the charred trestle bents when I visited the J&L site. The U.S. attorney in Cleveland actually filed the case, but I was the trial attorney assigned.  The case was filed on the day that US EPA was formed in December  Two pollution cases were filed by DOJ that day--the J&L case and a water pollution case against Armco Steel for discharging refuse matter into the Houston Ship Canal.  The Armco was ultimately tried in Houston; Armco was found to have violated the law and paid some minimal penalties.  (The max fine under Section 13 of the R&H Act was $2500 per violation.) At the time the J&L case was filed, I had been with the DOJ for about three months.  I clerked on the 9th Circuit for a judge officed in Los Angeles before coming to DOJ.  The "Pollution Control Section" in the Land & Natural Resources Division was officially started two days after I arrived for work.  I believe we had about 8 or 9 attorneys originally--almost all without real litigation experience.  The two attorneys with the most experience were Martin Green, the section chief, and Al Ghiorizi, dep sec chief.  John Hills, one of the trial attorneys, also had some trial experience and was assigned the Armco Steel case.  I'm not sure why I was fortunate enough to be assigned the J&L case--my clerkship experience may have infludenced the decision. I believe all of the current DOJ environmental law sections within what is now called the Environmental and Natural Resources Division (except for the General Litigation Section of the Division) were spin-offs from the original Pollution Control Section.

3. Clean Water Act – some history
Deteriorating water conditions until nadir during early 20th century and World War II
Viewed as a public health concern (chorination)
State regulation by 1930s, but weak
Dramatic water pollution problems in urban rivers and lakes
1965 – federal Water Quality Act
Reliance on states for water quality standards and enforcement
Failed on both counts (less than 1/3 of industrial facilities treated wastes before discharges)
Recall descriptions of Illinois River from Missouri v. Illinois
Rivers used as sewage basins as matter of course. Passaic River.

4. Legislative Response Rivers & Harbors Act of 1899
Originally targeted impediments to navigation
Criminalized “any refuse matter of any kind or description whatever” over than street flow
Required permit from U.S. Army
Qui tam provision
Sparked federal Clean Water Act in Still in force.
Rep. Henry Reuss (Wisconsin) – qui tam actions allowed him to prosecute crimes and keep half of fines. Listed 270 companies, sued four of them. Ultimately resulted in several hundred suits.
Money contributed for sewage plant construction

5. Federal Clean Water Act
Passed in 1972, and amended in 1977
Key concepts:
Set an ambitious national goal: elimination of pollutant discharges into navigable waters by 1985
Primary tools:
Water Quality Standards
Wastewater Treatment Standards + Permits for Discharges
Wastewater Treatment Financing
Water quality, not supply.

6. Sources of Pollution
Direct – discharge from pipe, outfall or ditch at facility
Indirect – routed to a centralized wastewater treatment facility
Storm water and sewer discharges
Non-point source pollution

7. Federal Clean Water Act – Key concepts
NPDES permit system (sections 301, 402)
Required for any discharge of a pollutant from a point source into navigable waters
Indirect discharges – pretreatment orders
Discharge standards set by technology limits provided for entire industry sector (sections 301, 306, 307) (NSPS, toxics)
Total Maximum Daily Load standards for water quality attainment (section 303d)
Dredge and Fill (section 404) (wetlands)

8. Federal Clean Water Act - implementation
State delegation for implementation and enforcement, with EPA oversight
Citizen suits (section 505)
Nonpoint source pollution planning requirements

9. Federal Clean Water Act – other laws
Other federal laws:
Oil Pollution Act of 1990
Ocean Dumping Act
Coastal Zone Management Act
State laws – extremely important additional source of pollution control obligations

10. Federal Clean Water Act - results
Much cleaner waterways in the United States
Discharge of organic wastes from POTWs reduced by almost half
Industry discharges of organic wastes down 98 percent
Rate of wetlands loss declined by 90 percent since 1970s
But many water quality issues remain

11. Federal Clean Water Act - Jurisdiction
The term “navigable waters” means the waters of the United States, including the territorial seas.
(CWA section 502(7))
So what does this term include? Wetlands, groundwater, in-state lakes, ditches, arroyos, manmade reservoirs…?

12. Katy Prairie
1,000 sq miles
Major migratory bird flyway
“Prairie Potholes”

13. Rapanos v. U.S. (2006)

14. 2015 Clean Water Rule

15. Proposed Clean Waters Rule (2018)
EPA and Corps jointly proposed new rule on Dec. 11, 2018
No “significant nexus” query required
No ephemeral streams as WOTUS
Ditches excluded if ephemeral or upland
Wetlands – bermed wetlands excluded

16. UH Medical School proposed site

17. UH Medical School

18. Thoughts or reactions? Professor Tracy Hester
University of Houston Law Center
(office)