Appendixes



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--> Appendix A Water Quality Management in the United States: Major Related Legislation The following is an historical overview of the evolution of the institutions and legislation for water quality in the nation.1 This institutional framework is complex, given that many agencies, and many programs within agencies, have some responsibilities related to water quality. Rivers and Harbors Act of 1899 This act, also referred to as the ''Refuse Act," is the first statute that addressed water quality conditions in the United States, if only originally for purposes of navigation. The act states that "It shall not be lawful to throw . . . any refuse matter of any kind or description whatever, other than that flowing from the streets and sewers and passing there from in a liquid state, into any navigable water of the United States" [33 U.S.C. 401, Section 13]. Any activities that could impact the navigable waterways, by obstructing excavations, filling navigable waters, discharging of refuse matter, or causing injury to harbor or river improvements or flood control devices required a permit from the Chief of Engineers of the Army Corps of Engineers. The act had only an indirect relationship to water quality. It is apparent from the materials excluded from the act—"matter . . . other than that flowing from the streets and sewers and passing therefrom in a liquid state"—that urban runoff and municipal sewage 1.   The committee would like to acknowledge Katherine O'Connor, Orange County Water District, California, for contributing this overview. It is adapted from her masters thesis, Watershed Management Planning: Bring the Pieces Together (O'Connor, 1995).

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--> discharges were not yet an issue. The so-called "Refuse Act" was not really directed at regulating industrial or municipal sources of water pollution. Most of the water pollution control permits issues under Section 10 of the Act were U.S. Army Corps of Engineers (USACE) permits for physical alterations such as channelization (Portney, 1990). Water Pollution Control Act of 1948 This Act, enacted 50 years after the Refuse Act, dealt explicitly with water pollution control [P.L. 80-845]. It authorized the federal government to conduct research on water pollution problems. It also authorized the federal government for the first time to make loans to municipalities for the construction of sewage treatment facilities, although no actual funds were appropriated (Portney, 1990), At this time, the responsibility for compliance and enforcement of water pollution control was left entirely to the state and local governments. There were no federal requirements in the form of goals, limits, or guidelines. The Act stated that it was the policy of Congress to "recognize, preserve, and protect the primary responsibilities and rights of the states in controlling water pollution" (WEF and Kovalic, 1993). Water Pollution Control Act—Amendments of 1956 In this Act, federal involvement was still limited to the investigation of water pollution problems and intervention in cases dealing with interstate water quality issues [P.L. 89-660]. The federal government entered into cost-sharing agreements with local municipalities and supplied up to 55 percent of the cost of constructing municipal wastewater treatment plants (WEF and Kovalic, 1993). Primary responsibility for water pollution control was still left to the states. This Act initiated a goal-oriented approach, and each state was authorized to establish its own criteria for desirable levels of water quality (Portney, 1990). The role of the states was increased by this legislation, which allowed them to take abatement action against polluters (WEF and Kovalic, 1993). Water Quality Act of 1965 This Act increased federal intervention in water quality control [P.L. 89-234]. For the first time, the states were mandated by the federal government to establish ambient water quality standards and develop implementation plans for controlling pollution from individual sources to meet those standards (Portney, 1990). This Act also created the "Federal Water Pollution Control Administration," which set general guidelines for the state's standards and had oversight authority to approve the standards and the implementation plans set by the states (WEF and Kovalic, 1993; Water Quality 2000, 1992). Under the Act, the water

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--> quality standards established by the states could vary for different bodies of water throughout the state depending on the benefits and costs of attaining certain levels of water quality. The states still bore the primary responsibility for issuing discharge permits to individual sources of pollution, and could impose fines and take enforcement action against violators (Portney, 1990). Federal Water Pollution Control Act of 1972 The Federal Water Pollution Control Act (the Clean Water Act or CWA) adopted in 1972 was, to date, the most extensive piece of federal legislation regulating water quality. It instituted a national program for cleaning up the nation's water. The set of guidelines in the act was to be administered by the recently formed Environmental Protection Agency (EPA). The requirements of the Clean Water Act signified that the federal government was assuming primary direction of water pollution control for the nation (Portney, 1990). The Clean Water Act developed an objective, goals, and policies for the nation, and required state programs to be put in place to achieve them. In Title I, The Declaration of Goals and Policy, the CWA established the overall objective to restore and maintain the chemical, physical, and biological integrity of the nation's waters (P.L. 92500, Section 101 (a)]. Title I continues by setting two national goals to meet this objective: (1) eliminate the "discharge of pollutants into the navigable waters" of the nation by 1985 (often called the "zero discharge" Goal) and (2) achieve an "interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water" by 1983 (the "fishable and swimmable" goal) [Section 101(a)(1) and (2)]. Additionally, Title I sets four national policies for reaching these goals and objectives, which are: (1) prohibit discharge of toxic pollutants in toxic amounts, (2) provide federal grants for the construction of Publicly Owned Treatment Works (POTWs), (3) develop area-wide wastewater treatment management planning, and (4) research and develop technology to eliminate the discharge of pollutants into the nation's waters [Section 101(a)(3) through (6)]. States were responsible for meeting these goals and for developing programs to "prevent, reduce, and eliminate pollution'' [Section 101(b)]. The basis for the enforcement of the programs of the Clean Water Act was the "National Pollutant Discharge Elimination System" (NPDES), which created a national system for issuing permits to dischargers [Section 402(a)(1)]. This permitting program is central to the Clean Water Act. The NPDES permits set effluent limitations for point source dischargers. All municipal dischargers were required to achieve secondary wastewater treatment by the year 1977 [Section 301 (b)(1)(B)]. Industrial dischargers of toxic pollutants had strict discharge standards using the best available technology [Section 301(b)(2)(B)]. The states could take over responsibility for administering the permitting program, with EPA oversight and approval.

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--> In addition to the NPDES permits, the states were also granted permitting authority under Section 401 of the Clean Water Act. Section 401 requires that in order for a discharger to obtain a federal permit or license for any activity "including construction or operation of facilities" that would result in a discharge to navigable water, a "water quality certification" must by received from the state in which the discharge is to occur [Section 401(a)(1)]. The 401 permit certifies that the discharge complies with the state's water quality standards, and must be obtained from or waived by the state before the issuance of any permit, including: NPDES permit, a permit for dredged and fill material by the U.S. Army Corps of Engineers, a Section 9 &10 permit under Rivers and Harbors Act, or a license for hydroelectric power from the Federal Energy Regulatory Commission (RWQCB 1994). From the point of view of watershed management, perhaps the most relevant portion of the CWA is section 303(d), which defines an approach known as Total Maximum Daily Load (TMDL). This method, which was refined in later regulations, is a water quality-based standard. It strives to assure water quality through a series of steps that, in effect, require a watershed approach. Under federal oversight, states: (1) identify water bodies with impaired water-quality, (2) establish a priority ranking of these sites, (3) allocate maximum total loadings of various contaminants among point and nonpoint sources (waste load allocation, or WLA, and load allocation, or LA, respectively), (4) implement control measures, and (5) assess the results. In most cases, step 3 of this process virtually mandates a watershed approach, since waters are impaired by multiple dischargers and pollutants, and these derive, to a considerable extent, from nonpoint sources distributed over broad regions. EPA even recommends that TMDLs be developed on a geographical basis, e.g., by watershed. A virtue of the TMDL approach is that it is flexible and considers water quality to be a function of an extensive range of sources distributed across the landscape. It is so flexible that physical and biological stressors, like water temperature and habitat alteration, can be considered within the same management framework. A disadvantage is that enforcement options are limited, mainly to restricting point sources through the NPDES permitting process. The Clean Water Act of 1977 These 1977 amendments were the first major revision of the CWA of 1972 [Public Law 95-217]. The amendments encouraged states to manage the construction grants program for POTWs under Section 205, as well as the standards and enforcement responsibility of the NPDES permit program under Section 402 (Portney, 1990; WEF and Kovalic, 1993). The 1977 amendments made quite a few changes to Section 301 of the CWA, the Standards and Enforcement section. The restrictions of municipal wastewater treatment discharges under Section 301 were weakened to allow for waivers from full secondary treatment of wastewater

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--> to coastal dischargers [Section 301(h)]. In addition, extensions for reaching the treatment limitations were granted to industrial discharges. The EPA reclassified and revised the toxic pollutant list to arrange toxins in three Groups: (1) "conventional pollutants" such as biological oxygen demand (BOD) and suspended solids, (2) "nonconventional pollutants" such as phosphorus and nitrogen, and (3) priority pollutants, or toxic pollutants, such as synthetic organic chemicals [Section 301(b)(7 (C)]. Municipal Wastewater Treatment Construction Grant Amendment of 1981 The primary goal of these amendments (Public Law 97-117) was to reform the federal construction grant program for municipal wastewater treatment plants, which had been creating major reductions in federal financial assistance to the local governments for the construction of wastewater treatment facilities. The amendments also extended the national deadline for meeting full secondary treatment deadlines to 1988 (Portney, 1990; WEF and Kovalic, 1993). Water Quality Act Of 1987 This final set of major amendments to the federal Clean Water Act brought the policies for water quality programs full circle to the policies before 1972. The amendments reaffirmed the states' primary authority and responsibility for developing and implementing programs to meet federal water quality goals [Section 101(b)]. In addition, the discharge requirements for many water bodies went back to being based on water quality, instead of uniform technology-based standards for the nation. Previous technology-based limits and standards for municipal and industrial DPES permits had been issued without regard to the quality of the receiving water. The move back to water-quality-based standards based the discharge limits on the designated use of the water and the standards required to sustain that use. States were also granted the authority to decide themselves on the programs for meeting water quality based standards (WEF and Kovalic, 1993). The major responsibilities, including financial ones, for wastewater treatment facilities were also handed down to the states. A schedule was developed to gradually eliminate federal grants for POTW construction and replace the program with state revolving fund loans (Portney, 1990; Water Quality 2000, 1992; WEF and Kovalic, 1993). One of the most significant amendments to the Clean Water Act was the addition of a fifth national policy in Title 1, the national policy for control of nonpoint sources (NPS) of pollution [Section 101(a)(7)]. Under Section 304, EPA sets the guidelines for controlling NPS pollution, and the regulation of activities that cause "diffuse and intermittent flows of pollutants." This section also identifies the programs of other federal agencies that may be affected by the

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--> provisions of the national NPS policy, such as the U.S. Army Corps of Engineers, the U.S. Department of Agriculture, and the U.S. Department of the Interior [Section 304(k)(L)]. The NPS policy requires each state to assess its water pollution and determine which water bodies fail to meet the water quality objectives because of NPS pollution [Section 319(a)]. The state is then to develop a state management plan and implementation measures to reduce the pollutants [Section 319(b)]. The states have primary control over the NPS program and are authorized under Section 3 19(h) to use funds from state revolving fund loans for statewide NPS management plans, and for programs to protect ground water from NPS pollution as well [Section 3 19(1)] (WEF and Kovalic, 1993). References Portney, P. R., ed. 1990. Public Policies for Environmental Protection. Washington D.C.: Resources for the Future. Regional Water Quality Control Board, California (RWQCB). 1994. Water Quality Control Plan: Santa Aria River Basin M. Riverside: Santa Ana Region VIE. Water Environment Federation (WEF) and J. M. Kovalic. 1993. The Clean Water Act of 1987. 2nd ed. Washington, D.C.: The Bureau of National Affairs, Inc. Water Quality 2000. 1992. A National Water Agenda for the 21st Century. Final Report. Alexandria, Va.: Water Environment Federation.