17 ELR 10311 | Environmental Law Reporter | copyright © 1987 | All rights reserved

The Water Quality Act of 1987: A Major Step in Assuring the Quality of the Nation's Waters

Mr. Liebesman is an attorney with the Harker law firm in Washington, D.C. He was formerly a senior trial attorney in the Environmental Defense Section of the Justice Department's Land and Natural Resources Division. Mr. Laws is a trial attorney in the Environmental Defense section. They have been actively involved in litigation under the Clean Water Act and were co-counsel in Natural Resources Defense Council v. EPA (No. 80-1607) involving challenges to EPA's National Pollutant Discharge Elimination System regulations pending in the Court of Appeals for the District of Columbia Circuit. The views expressed in this Article are solely those of the authors and do not reflect the views of EPA, the Justice Department, the Corps, or any other federal agency.

[17 ELR 10312]

Introduction

In the most dramatic fashion possible, the centenary Congress of the United States made the Water Quality Act of 1987 (WQA)¹ its inaugural piece of legislation. The law was enacted on February 4, 1987, after being vetoed by President Reagan on January 30, 1987.² The law represents the first major revision to the Clean Water Act (CWA)³ since 1977 by clarifying certain areas of the law as well as granting new powers and responsibilities to the U.S. Environmental Protection Agency (EPA) and states.

The current framework for the Clean Water Act was established in the 1972 Federal Water Pollution Control Act Amendments. In response to the difficulties experienced with the water quality standard approach in effect since 1948, Congress created a technology-based program that is enforced through a permit program called the National Pollutant Discharge Elimination System (NPDES). The Act was amended significantly in 1977 to, inter alia, increase the emphasis on the control of toxic pollutants.⁴

The 1987 amendments contain many new authorities that address both large and small segments of the regulated community, including a handful of provisions that will have a major impact on virtually all regulated entities. These provisions range from such substantive programs as antibacksliding and nonpoint source production management to legal changes such as administrative penalties and an expanded judicial review program. This Article will attempt to highlight a few of the more broad-based provisions of the WQA and some of their impacts on the Clean Water Act's ultimate goal to "restore and maintain the chemical, physical and biological integrity of the nation's waters."⁵

Construction Grants

Undoubtedly the most controversial area in the passage of the WQA were the amendments to the construction grants program.⁶ Arguably the sole rationale for the President's veto, Title II of the WQA provides for $18 billion in grants and loans for construction of wastewater treatment plants over the next nine years.⁷ In a major concession to the White House, Congress has decided that the grant program will be concluded as of 1990.⁸

Section 203 of the WQA directs the Administration to enter into a written agreement with the grant applicant prior to any final action being taken on plan specifications and estimates.⁹ The agreement must specify and finalize which items of the project are eligible for federal payments.¹⁰ The Administrator is then prohibited from modifying that determination unless it was made in violation of laws or regulations.¹¹

The bill permits the federal share of the projects to be 75 percent of the total cost where the federal grant was made prior to October 1, 1984, and the state obligation occurs prior to Otober 1, 1990.¹² Also eligible to receive 75 percent funding are projects for which a grant application was submitted to the Administrator prior to October 1, 1984, and which are currently under a judicial injunction prohibiting their construction.¹³ For post-October 1, 1984, grants, the federal percentage remains at 55 percent.¹⁴ A total of $9.6 billion dollars is authorized for these direct project grants.¹⁵

The remainder of the $18 billion, $8.4 billion, will be used to capitalize state loan programs. This is part of the congressional scheme to phase out the grant programs and have local communities assume a greater share of the cost of these projects.¹⁶ The loan program, officially called State Water Pollution Control Revolving Funds, is established in § 212 of the Act. A new Title VI is added to the Clean Water Act whereby states and EPA will agree to enter into "capitalization grant agreements."¹⁷ The purpose of the loan fund is to provide assistance:

(1) for construction of treatment works … which are publicly owned, (2) for implementing a management program under section 319, and (3) for developing and implementing a conservation and management plan under section 320.¹⁸

The agreement will cover the schedule for federal payments to the states and the state commitment for matching funds.¹⁹ The Administrator will make payments to the states in quarterly installments that must be completed not later than 8 quarters after the funds are obligated to the [17 ELR 10313] state or 12 quarters after the funds are allotted to the state, whichever is earlier.²⁰ In return, the states must agree to make cash contributions that total 20 percent of the federal contribution.²¹ The state must then enter into binding commitments to provide assistance within one year of receipt of federal grant payments in an amount to equal the entire cash contribution, i.e., 120 percent (100 percent federal plus 20 percent state matching funds).²² These federal capitalization grants are authorized until fiscal year 1994.²³

Treatment works that are constructed in whole or in part prior to fiscal year 1995 that utilize grant funds are subject to the following requirements:²⁴

1. application of best practicable waste treatment technology;²⁵

2. grant funding is available only for projects for secondary treatment or more stringent treatment, or any cost effective alternative, new interceptors and appurtenances, and infiltration-inflow correction. Funds are also available for other types of treatment works that otherwise would be ineligible for grant funding up to a maximum limit of 20 percent of the state's allotment, to be determined by the Governor;²⁶

3. consideration of alternative waste management techniques, and the project must provide for reclamation or recycling of water at a later date to the extent practicable;²⁷

4. the project must establish that its sewer collection system is not subject to excessive infiltration;²⁸

5. a complete study and evaluation of innovative and alternative treatment technologies must be made;²⁹

6. the planning of the treatment works must analyze the potential recreation and open space opportunities;³⁰

7. funds are available (under new Title VI and CWA § 205) to address water quality problems caused by discharges from combined storm water and sanitary sewer overflows which otherwise would not be eligible for grant funding, if the correction of the discharges is a major priority of the state;³¹

8. a capital financing plan that projects waste treatment services for the area to be serviced for the next 10 years, discusses aspects of future expansion and reconstruction and how such expansion and reconstruction will be financed must be filed;³²

9. the project must be included in an applicable areawide waste treatment management plan under CWA § 208;³³

10. the project must conform with the applicable state continuing planning process under CWA § 303(e);³⁴

11. the applicant must develop a user charge system and have the legal, institutional, managerial, and financial capability to insure adequate construction, operation, and maintenance of the project;³⁵

12. one year after completion of construction and initial operation of the treatment works, the owner must certify whether or not the project meets the design specifications and effluent limitations contained in the grant agreement and permit. Failures to meet the specifications or permit limits must be corrected at nonfederal expense in a timely manner;³⁶

13. sewage collection systems are ineligible unless the grant is for replacement or major rehabilitation of an existing system that is necessary to the total integrity and performance of the treatment works, or is a new system in an existing community with sufficient capacity to treat the collected sewage;³⁷

14. treatment systems must be the most economical and cost effective to meet requirements of the Act, and projects in excess of $10 million must include a value-engineering review;³⁸

15. the National Environmental Policy Act applies to grant funded projects;³⁹

16. the provisions of the Davis-Bacon Act apply to grant funded projects.⁴⁰

Generally, publicly owned treatment works as defined by CWA § 212, nonpoint source management programs under CWA § 319, and estuary conservation and management plans under § 320 are the types of projects eligible for loans.⁴¹ The amendments specify the types of loans that can be made under the revolving fund of a state and specifically prohibit direct grants.⁴² The legislative history makes clear that certain types of innovative financing arrangements where there is private ownership and/or operation of municipal treatment works are not prohibited by the Act, and that states may use revolving loan funds to support the publicly owned portion of the treatment system in those situations.⁴³

Treatment works projects must be on the states' priorities list in order to receive assistance from the fund.⁴⁴ Other eligible projects need not be on the priorities list.⁴⁵ Treatment works projects may receive funding regardless of their ranking on the priorities list.⁴⁶

If EPA determines that a state has not complied with the capitalization agreement, the Administrator must notify the state of the noncompliance and the need to take corrective action.⁴⁷ The state then has 60 days to take the appropriate corrective action.⁴⁸ Failure to do so within 60 [17 ELR 10314] days will result in withholding of additional payments until appropriate corrective action is completed.⁴⁹ If after 12 months of notification of noncompliance, the state still has not taken corrective action satisfactory to EPA, the withheld funds are available for reallotment in accordance with the most recent allotment formula.⁵⁰

The Construction Grants program was a major piece of compromise legislation. It did authorize direct grants at a much higher level than President Reagan desired, but, as Senator Durenberger stated, "it also gives President Reagan a great victory in that it does definitely phase out and finally terminate the Federal role in the Municipal Construction Grants Program."⁵¹ In 1984, EPA told Congress that $108 billion would be needed by the year 2000 for sewage plant construction.⁵² In the face of a $174 billion deficit, total funding would of course be impracticable.⁵³ Still, Congress provided a significant amount of money for the program and stood its ground in the face of President Reagan's second veto of this important legislation.

Compliance Dates

Another major focus of the WQA was the need to address the deadlines in existing law that many direct dischargers had been unable to meet. The Federal Water Pollution Control Act Amendments of 1972, as amended by the Clean Water Act of 1977, set forth very strict schedules for achieving the technology-based limitations of the Act. Under §§ 301 and 304, existing industrial discharges were required to achieve, by July 1, 1987, effluent limitations based on the application of the "best practicable control technology currently achievable" (BPT).⁵⁴ Similarly, by July 1, 1984, existing discharges were required to comply with limitations on the discharge of toxic pollutants based on application of "best available control technology economically achievable" (BAT).⁵⁵ Further, by July 1, 1984, direct discharges had to achieve effluent limitations based on "best conventional pollutant control technology" for conventional pollutants such as suspended solids, biological oxygen demand, and fecal coliform.⁵⁶ For nontoxic, nonconventional pollutants, direct discharges were required to achieve BAT within three years after the promulgation of applicable regulations but in no case after July 1, 1987.⁵⁷ This scheme of imposing increasingly more stringent levels of control was designed to further the Act's goal of encouraging increasing progress towards the elimination of all pollutant discharges.⁵⁸

During consideration of the Water Quality Act, Congress recognized that many direct dischargers were unable to achieve these deadlines due, in large part, to EPA's delay in promulgating effluent guidelines for particular industrial categories.⁵⁹ During debate on the Conference report, it was noted that "at least 3 years from promulgation is needed for most plants to comply."⁶⁰ Thus, Congress was concerned about the inequities suffered by plants as a result of delay in guidelines promulgation.⁶¹ In order to remedy these inequities, Congress set forth new compliance deadlines and reaffirmed EPA's enforcement discretion to issue administrative orders for compliance beyond the new dates due to EPA's delay in issuing guidelines. Section 301(b)(2) was amended to extend the compliance date for meeting effluent limitations for priority toxic pollutants to no later than three years after the date that the limitations are promulgated, and in no case later than March 31, 1989.⁶² Congress also extended the compliance date to meet effluent limitations for conventional pollutants to no later than three years after the date the limitations are promulgated and in no case later than March 31, 1989.⁶³ Effluent limitations for all other pollutants must be complied with as expeditiously as practicable but no later than March 31, 1989, including effluent limitations established after enactment of the Water Quality Act of 1987.⁶⁴

Congress also strongly recognized the need for prompt EPA action in issuing guidelines. The Act directs the Administrator to establish effluent limitations for certain toxic pollutants no later than December 31, 1986.⁶⁵ The Conferees also noted that "the prompt promulgation of the relevant effluent limitations will be essential to allow dischargers sufficient time to come into compliance" with the March 31, 1989, deadline and directed the Administrator "to promulgate such limitations as expeditiously as possible."⁶⁶

The Conferees, however, recognized that entire categories of industries may be unable to meet the March 31, 1989, deadline if "the Administrator does not promulgate effluent limitations in sufficient time to allow for compliance" by that date.⁶⁷ Therefore, they specifically endorsed continued use of EPA's post-1984 deadline enforcement policy. That policy allows the Agency "at the same time a permit containing the statutory deadline is issued, to issue an administrative order to the noncomplying company which specifies a schedule of compliance as expeditiously as practicable, but not later than three years after permit issuance."⁶⁸ The Conferees also noted that EPA and the states should consider the issuance of permits based upon best professional judgment (BPJ) limitations to achieve the statutory deadline if effluent guidelines [17 ELR 10315] are delayed.⁶⁹ In floor debates on the conference report, it was made clear that the effect of such an administrative order was "that the plant should not thereafter be subject to suit — by EPA, a state, or a citizen — on the basis of its failure to adhere to the statutory compliance date."⁷⁰

Permit Modifications

Sections 302 through 306 of the WQA affect the ability of permittees to obtain modifications to their permits. In some instances it will be more difficult to obtain modifications, in others, the process is simplified. These sections will be discussed seriatim.

Modification for Nonconventional Pollutants

Section 302 of the WQA provides a major amendment to CWA § 301(g).⁷¹ The provision specifies five pollutants for which modifications from the BAT requirements of CWA § 301 may be sought.⁷² The five pollutants are ammonia, chlorine, color, iron, and certain specific total phenols.⁷³ Based on modification applications pending from the iron and steel and steam electric industries, Congress determined that adequate information existed to qualify these pollutants for modifications.⁷⁴ The section also allows for additional listings of pollutants.⁷⁵ The procedure for actually obtaining a § 301(g) modification remains the same.

Additional pollutants may be listed in response to a petition that contains sufficient information to allow the Administrator to make certain determinations.⁷⁶ Prior to listing, the Administrator must determine whether the pollutant meets the criteria for listing as a toxic pollutant under § 307(a)(1) of the CWA.⁷⁷ If the Administrator determines that the pollutant meets the criteria for listing as a toxic pollutant, then it shall be listed as such.⁷⁸ If the pollutant does not meet the toxic pollutant characteristics but the Administrator determines that adequate information exists to make the determination required by CWA § 301(g)(2), the pollutant shall be listed and eligible for modifications.⁷⁹ The burden of proof for providing information sufficient to make the necessary determinations is on the petitioner.⁸⁰

A petition to add a pollutant to the § 301(g) list must be filed not later than 270 days after promulgation of an effluent guideline under § 304.⁸¹ Petitions may be filed before an effluent guideline is promulgated and may also be filed with an application for a modification under § 301(g).⁸²

An application for modification and petition for listing stays the petitioners' duty to comply with the effluent limitation for the pollutant that is the subject of the application or petition, but not for other pollutants.⁸³ Upon disapproval of an application for modification, the stay as to the subject pollutant is lifted and compliance with the effluent limitation is mandated.⁸⁴ Applications for modifications must be approved or disapproved within one year after the date of filing, except when a petition for listing is approved, then the application must be approved or disapproved within one year of the date of approval of the petition.⁸⁵ These provisions apply to all § 301(g) applications pending on the date of enactment of the WQA except those applications that request modifications for the five listed pollutants.⁸⁶ The Administrator must approve or disapprove the applications in the latter categories within one year of the date of enactment of the WQA.⁸⁷

Discharges Into Marine Waters

WQA § 303, addressing modifications to discharges of pollutants to marine waters, expands the coverage of the section and apparently lessens the possibility of obtaining a modification under this section. The amended § 303 requires the applicant to prove to the Administrator that the requested modification, "alone or in combination with pollutants from other sources" will not interfere with marine waters and resources.⁸⁸ Preamendment § 301(h)(2) only required the applicant to establish that the modified requirements alone would not interfere with marine waters.

In what could be viewed as a trade-off, the requirement to monitor the impact of the discharge on a representative sample of biota is limited "to include only those scientific investigations which are necessary to study the effects of the proposed discharge."⁸⁹ This provision, however, is further restricted to modifications and renewals of modifications that are tentatively or finally approved after the enactment of the WQA.⁹⁰

Section 301(h) is amended to include an urban area pretreatment program that allows primary treatment.⁹¹ The new provision requires that for any treatment works serving a population of 50,000 or more the applicant must have in effect a pretreatment program for toxic pollutants with no applicable pretreatment requirement. The program, in combination with the treatment of discharges from the facility, must remove the same amount of the pollutant [17 ELR 10316] as would be removed if secondary treatment were employed without a pretreatment program.⁹²

To receive a modification, an applicant must further demonstrate, as a general matter, that it will achieve at least primary treatment of all discharges into marine waters.⁹³ The section, by definition, then requires "primary or equivalent treatment" to achieve, by specific methods, 30 percent removal."⁹⁴

The section is further amended to limit the issuance of permits only in situations where specific characteristics, both water and biota related, are present in the receiving waters.⁹⁵ Finally, the large ocean dumping area known as the New York Bight is precluded from receiving a permit.⁹⁶

The substantive amendments do not apply to applications that were tentatively or finally approved by the Administrator prior to the enactment of the WQA, but will apply to renewals of such permits.⁹⁷

Filing Deadlines

Section 304 of the WQA extends the filing deadline for applications for extensions of the date by which secondary treatment must be achieved to 180 days after enactment of the WQA.⁹⁸ This provision does not apply to treatment works that are subject to a court order or a final administrative order of EPA or a state.⁹⁹ Congress intended for this provision to be exercised judiciously so as not to unduly interfere with any existing compliance schedules or the July 1, 1988, compliance deadline.¹⁰⁰

Innovative Technology Compliance Deadlines For Direct Dischargers

Under preamendment CWA § 301(k), a facility that proposed to comply with BAT technology by use of an "innovative production process," "innovative control technique," or "innovative system"could request the establishment of a compliance date to achieve BAT not later than July 1, 1987, if it was also determined that the innovative technology had the potential for industry-wide application. WQA § 305 changes the July 1, 1987, date to a date two years after the date of compliance with the effluent limitation that is otherwise applicable.¹⁰¹ This provision takes into account changes to compliance dates contained in WQA § 301.¹⁰² The ability to develop innovative technologies is also extended to conventional pollutants.¹⁰³

Finally, Congress states its intention that the "industry-wide application" of the innovative technology must mean that such is

technically feasible at a significant portion of the facilities in an industrial category or subcategory and will be made commercially available by the applicant, unless the applicant is the only facility in the subcategory.¹⁰⁴

It is possible that Congress' attempt to tighten the controls on the issuance of innovative technology modifications by this definition of "industry-wide application" will have the negative result of scaring potential applicants away.

Fundamentally Different Factors

WQA § 306 is a new provision that codifies an administrative program developed by EPA. The authority to grant variances or modifications based on "fundamentally different factors" is for the first time granted to EPA by specific statutory language. The authority given is to allow:

the EPA Administrator to modify a minimum, national treatment requirement for an individual facility within an industry if the facility is found to be fundamentally different from other facilities within the industry on the basis of certain factors considered by the Administrator in establishing the guidelines or standards applicable to the facility's industrial category.¹⁰⁵

The issue of the availability of fundamentally different factor (FDF) variances has twice reached the Supreme Court.¹⁰⁶ In both instances, its use was upheld. Through WQA § 306, Congress jumps on the bandwagon and "gives the full support for this administratively created FDF mechanism."¹⁰⁷ Whether the provision is ultimately viewed as tightening or loosening the procedure is yet to be seen.

Senator Chafee, one of the prime architects of the WQA, took the position that § 306 limits the opportunity dischargers have to obtain an FDF variance.¹⁰⁸ In support of that position is the clearly stated elimination of costs as the basis for the granting of an FDF variance.¹⁰⁹ The only factors that can properly be taken into account to support the issuance of an FDF variance are those found in CWA §§ 304(b)(2) and (g).¹¹⁰ Those factors include the age of the equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact, and such other factors as the Administrator deems appropriate.¹¹¹

While costs are precluded from consideration as the sole basis, Congress has stated that where an eligible factor (e.g. age of facility) would result in a reduction of costs to the [17 ELR 10317] facility, EPA can consider the costs associated with that factor.¹¹² However, the actual finding of a fundamental difference must be justified on the basis of other, appropriate factors.¹¹³

The information necessary to support the FDF request must be based solely on information and supporting data that was submitted to EPA during the development or revision of the applicable effluent guidelines or upon information that the applicant did not have a reasonable opportunity to present to EPA during the rulemaking.¹¹⁴ Applicants with new information retain the right to petition the Administrator to reopen the rulemaking, with the decision on such a petition being subject to judicial review under CWA § 509(b).¹¹⁵

The application must be submitted within 180 days after the date the limitation or standard is established or revised.¹¹⁶ The Administrator then has 180 days after the filing of the application to either approve or deny it "by final agency action."¹¹⁷ A facility's obligation to comply with the applicable effluent limitation guideline or pretreatment standard is not stayed during the pendency of the application process.¹¹⁸ Any alternative requirement that will be imposed cannot be less stringent than justified by the applicant's fundamental difference from the rest of its category or subcategory.¹¹⁹ Also, any alternative limitation cannot result in a non-water quality environmental impact that is "markedly" more adverse than the impact considered by the Agency in establishing the effluent limitation guideline or categorical pretreatment standard.¹²⁰

The section also requires the Administrator to establish and collect fees from applicants applying for an FDF variance as well as modifications under CWA §§ 301(c), (g), (i), (k), (m), 304(d)(4), and 316(a).¹²¹ These funds are to be deposited into a special "Water Permits and Other Services" fund in the Treasury and are to be available to carry out activities for which the fee was charged.¹²²

Finally, in a special provision applicable to several phosphate fertilizer plants in Louisiana that commenced construction on or before April 8, 1979, the Administrator is directed to withdraw the effluent guidelines as they apply to the affected plants.¹²³ This provision is even more unique in that the provision was apparently opposed by the entire Louisiana congressional delegation.¹²⁴ EPA is directed to issue BPJ permits to the affected facilities within 180 days of enactment of the WQA, which are to remain in effect until new effluent guidelines are developed.¹²⁵

Penalty Authority

An increased emphasis on penalties as an enforcement tool was a major focus of Congress in the Water Quality Act of 1987. Congress beefed up the enforcement provisions of the Act by adding new authority for assessment of administrative penalties and by increasing penalties for civil and criminal violations.

Administrative Penalties

Section 314 of the Water Quality Act of 1987 gives EPA and the Secretary of the Army new authority to assess administrative penalties under the Clean Water Act.¹²⁶ The Administrator may assess penalties where he finds that any person "has violated" §§ 301, 302, 306, 307, 318, or 405 as well as NPDES permit conditions under § 402. The Secretary of the Army is given similar authority for violations of permits issued under § 404.¹²⁷

The Act also creates two "classes" of penalties. These classes differ with respect to procedure and maximum assessment. Class I penalties may not exceed $10,000 per violation and a maximum amount of $25,000.¹²⁸ EPA must give written notice to the person to be assessed a penalty and the opportunity to request, within 30 days of receipt of the notice, a hearing regarding the proposed assessment.¹²⁹ A Class I penalty hearing is not subject to the formal administrative requirements of §§ 554 and 556 of the Administrative Procedure Act (APA).¹³⁰

A Class II penalty is more serious and requires more formal procedures. Such a penalty may not exceed $10,000 per day of violations with a maximum amount of [17 ELR 10318] $125,000.¹³¹ A Class II penalty must be assessed and collected after notice and opportunity for a hearing on the record in accordance with § 554 of the APA.¹³²

Before assessing a penalty, EPA must give public notice and a reasonable opportunity to comment on the proposed assessment.¹³³ Persons who comment on a proposed assessment must be given notice of any hearing, and a reasonable opportunity to be heard and to present evidence if a hearing is held.¹³⁴ Persons who comment on a proposed assessment must also be given notice of the issuance of the order that actually assesses the penalty. If no hearing is held before the order is issued (e.g., if the violator consents to a penalty without hearing), any person who commented on the proposed assessment may petition the Administrator to set aside the order and to provide a hearing. The person must petition within 30 days after the order is issued.¹³⁵ If evidence presented by the petitioner is material and was not considered when the order was issued, the Administrator must set aside the order and provide a hearing.¹³⁶ If the Administrator denies the petition for hearing, the Administrator shall publish in the Federal Register the reasons for the denial.¹³⁷

In determining the amount of an administrative civil penalty, the Administrator or Secretary must address very specific factors. These include the nature, circumstances, extent, and gravity of the violation or violations, the violator's ability to pay, the effect on the violator's ability to continue to do business, any history of prior violations, the degree of culpability, economic savings (if any) resulting from the violation, and such other matters as justice may require.¹³⁸ Further, "a single operational upset which leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation."¹³⁹

Congress also specifically addressed the interface between judicial and administrative actions for penalties at the federal and state level in order to avoid the potential for redundant enforcement activity.¹⁴⁰ No violation for which EPA is "diligently prosecuting" an administrative penalty action may be the subject of a civil penalty suit under § 309(d) (regarding civil judicial penalty assessments), § 311 (spills), or § 505 (citizen suits).¹⁴¹ Similarly, no violation for which an administrative penalty has been paid under the Act may be the subject of suit for further penalties under §§ 309, 311, or 505.¹⁴²

Further, no violation for which a state is diligently prosecuting an administrative penalty action (or has received an administrative penalty) under comparable state law may be the subject of suit for additional penalties under §§ 309, 311, or 505.¹⁴³ In addition, the floor debates support the position that the limitation on federal civil penalty actions applies only where a state has approval to administer an NPDES program, and only where the opportunity for public participation, penalty assessment factors, and other standards are analogous to a federal proceeding.¹⁴⁴ Citizen suits for penalties are not barred by an administrative assessment if the citizen suit is filed before the administrative proceeding begins, or if notice of intent to sue is given before the administrative proceeding begins and suit is filed within 120 days of the notice.¹⁴⁵ Thus, the Water Quality Act somewhat clarifies the issue of when a pending federal or state administrative action would bar a citizen suit for the same violations.¹⁴⁶

[17 ELR 10319]

Congress also expressed concern about the lack of vigorous enforcement by the Corps with respect to violations of § 404 dealing with the discharge of dredged and fill material.¹⁴⁷ Thus, Congress gave EPA and the Corps shared administrative penalty authority. EPA is given new authority to assess administrative penalties for unpermitted discharge of dredged and fill material and for violations of state-issued § 404 permits, which Congress intended EPA to use "aggressively."¹⁴⁸ The Corps is given authority to assess penalties only for violations of § 404 permits including any conditions.¹⁴⁹ The Conferees also made clear their intention "that the Secretary of the Army and the Administrator develop a memorandum of agreement concerning the implementation of this new administrative penalty authority relating to unpermitted § 404 violations" and that they "expect" execution of such a memorandum "as soon as possible but in no event later than six months after the date of enactment."¹⁵⁰

The administrative penalty also has very defined avenues of judicial review. A person who has been assessed a penalty, or who has commented upon the assessment, may seek judicial review.¹⁵¹ District courts review class I penalties.¹⁵² Courts of appeals review class II penalties.¹⁵³ Notice of appeal must be filed within 30 days of the issuance of the penalty order.¹⁵⁴ A reviewing court cannot set aside the order unless there is not substantial evidence in the record to support the finding of violation or unless the assessment is an abuse of discretion, nor can a court increase the penalty unless there has been an abuse of discretion.¹⁵⁵

Finally, Congress gave EPA authority to enforce and collect administrative penalties. EPA may issue subpoenas for the testimony of witnesses and production of documents in connection with administrative penalty hearings.¹⁵⁶ District courts have jurisdiction to enforce the subpoenas. Civil penalties can only be collected in a suit brought in federal district court.¹⁵⁷ However, in collection suits, the "validity, amount and appropriateness" of the penalty is not subject to judicial review.¹⁵⁸

Judicial Penalties

Civil Penalties. Section 313(b) of the Water Quality Act raises the maximum civil penalty of $10,000 per day for each violation to $25,000.¹⁵⁹ The increased penalty amounts cover violations of § 404 permits as well as violations of NPDES permits and discharges without permits, including violations of pretreatment requirements.¹⁶⁰ This section specifically addresses the authority of states to assess maximum civil penalties in amounts equivalent to what can be assessed in federal court. The Conferees specifically adopted the House's language, which states that the Act "shall not be construed as requiring a state to have a civil penalty for violations described in section 309(d) which has the same monetary amount as the civil penalty established by this section."¹⁶¹ Thus, the Conferees expressly preserved the Administrator's authority to establish, for the purpose of program delegation, minimum acceptable levels of state civil penalty authority.¹⁶² The Conferees also provided that no state shall be required, before July 1, 1988, to modify a § 402 program as a result of the civil penalty amendments in the Conference substitute.¹⁶³

As with the new administrative penalty authority, WQA § 313(c) specifically identifies factors to be considered in assessing penalties. These include the seriousness of the violation, any economic benefit resulting from the violation, the violator's compliance history and good faith efforts to comply, the economic impact of the penalty on the violator, and such other matters as justice may require.¹⁶⁴ Also, when determining the amount of the penalty, the Act makes clear that the court must treat "a single operational upset which leads to simultaneous violations of more than one pollutant parameter as a single violation."¹⁶⁵ Finally, the Conferees specifically endorsed and encouraged the use of civil penalties collected as part of settlement and other enforcement action "to fund research, [17 ELR 10320] development and other related projects which further the purposes of the Act."¹⁶⁶

Criminal Penalties. Section 312 of the WQA amends § 309(c) of the Clean Water Act to provide for increased criminal penalties.¹⁶⁷ Section 309(c) now provides that persons who knowingly violate certain Clean Water Act requirements are subject to increased criminal penalties of not less than $5,000 or more than $50,000 per day of violation and/or imprisonment for up to three years.¹⁶⁸ The maximum punishment with respect to both fine and imprisonment for second convictions continues to be doubled.¹⁶⁹ These felony level penalties are more closely comparable with the levels of penalties provided for in the 1984 amendments to the Resource Conservation and Recovery Act (RCRA).¹⁷⁰ Existing misdemeanor penalties are retained to address those negligent violations that merit lesser punishment.¹⁷¹

The Act also adds to § 309(c) enhanced felony penalties for certain life-threatening conduct.¹⁷² The concept of a knowing endangerment crime is found, as well, in § 3008(e) of RCRA.¹⁷³ This new offense under the Clean Water Act is based upon violation of certain predicates in the Act. Anyone "who knows at that time that he thereby placed another person in imminent danger of death or serious bodily injury" is subject to severe punishment.¹⁷⁴ The criminal penalties that apply upon conviction (up to 15 years imprisonment plus a fine of up to $250,000 for individuals, a fine of up to $1,000,000 for organizations) are equivalent to the RCRA knowing endangerment provision.¹⁷⁵

The maximum term of imprisonment for the knowing making of false statements, representations, and certifications, or tampering with monitoring equipment required under the Act, is increased from six months (a petty offense) to two years (a felony).¹⁷⁶ The provision doubling the maximum punishment with respect to both fine and imprisonment for second convictions under the same paragraph of the Act is extended to cover this provision, as well as the knowing endangerment provision.¹⁷⁷

Section 309(c) is extended to apply criminal sanctions to violations of §§ 318 and 405 of the Act, as well as of requirements imposed in pretreatment programs or in permits issued under § 404 by the Secretary of the Army.¹⁷⁸ It is also made to apply to anyone who introduces into a sewer system or publicly owned treatment works (except in compliance with all applicable governmental requirements and permits) any pollutant or hazardous substance that such person knew or reasonably should have known could cause personal injury or property damage or causes such treatment works to violate effluent limitations or permit conditions.¹⁷⁹

Control Strategies For Toxic Pollutants

Section 308 of the Water Quality Act of 1987 establishes a very progressive program of toxics control. Existing § 301(b)(1)(C) requires that all NPDES permits comply with water quality standards developed by the states pursuant to § 303, or where approvable state standards have not been established by EPA.¹⁸⁰ Water quality standards consist of the designated use of the navigable water (e.g., agriculture, drinking water supply, fish and wildlife management) and water quality criteria established to attain such uses. These standards are set to "protect public health and welfare and to enhance the quality of water."¹⁸¹ Unlike technology-based limitations, water quality standards are not developed based on an evaluation of the capability of pollution control technologies, but rather on the physical attributes of a stream to support the designated use. Such criteria may be narrative rather than numerical.¹⁸² Once standards have been set, permit limitations must be established to assure compliance with them, regardless of the availability or effectiveness of treatment technologies.¹⁸³

Despite these requirements in existing law, Congress had become particularly concerned that certain waters could not meet water quality standards even with the imposition of BAT and noted that there were numerous toxic "hotspots" that required special controls.¹⁸⁴ Therefore, § 308 establishes a comprehensive program for toxics control, requiring the development of individual toxic control strategies.¹⁸⁵ States are required within two years of enactment to identify specific "toxic hotspots" — waters where technology-based control and existing water quality-based controls are not adequate to meet water quality standards because of toxic pollutants, even after the implementation of BAT, new source performance standards, and pretreatment standards.¹⁸⁶ The states must also identify the specific point sources discharging toxic pollutants that are believed to be preventing attainment of standards and the amount of each toxic pollutant discharged within an individual control strategy to achieve standards through the establishment of numerical effluent limitations and water quality standards.¹⁸⁷ The state's proposed reduction of toxic discharges along with nonpoint source controls must [17 ELR 10321] achieve the applicable water quality standard as soon as possible, but no later than three years after the date of establishment of the strategy.¹⁸⁸

EPA is under tight deadlines for acting on state control strategies. Within 120 days of the submittal date, the Administrator must approve or disapprove the control strategies submitted by a state.¹⁸⁹ If a state fails to timely submit a strategy or if EPA does not approve the strategy, then EPA, within one year of the last day for EPA to act on a submittal, must develop an individual control strategy after notice and public comment that meets the requirement applicable to the state.¹⁹⁰ Further, any person may submit a petition to list a waterbody to be subject to a control strategy within 120 days after the last day of the submittal period.¹⁹¹

The Water Quality Act gives EPA important rulemaking responsibilities in assisting states in this area. The Administrator must develop and publish guidance to be used by states in identifying waters subject to individual control strategies and information on methods for establishing and measuring water quality criteria for toxic pollutants.¹⁹² States also must adopt criteria for all priority toxic pollutants for which EPA has published water quality criteria under § 304(a) when a state establishes or revises its own water quality standards.¹⁹³ Where numerical criteria are not available the state shall use biological monitoring or assessment methods.¹⁹⁴

Section 308 also requires EPA to undertake a study of water quality improvements achieved through the application of technology based effluent limitations under § 301(b)(1) and to report on the results of the study within two years.¹⁹⁵ Also, EPA must develop a plan for periodically reviewing and revising promulgated effluent guidelines and categorization of toxic and nonconventional pollutant sources.¹⁹⁶

Finally, the Act amends § 509 to allow interested persons to bring a legal action for review of the Administrator's promulgation of individual control strategies.¹⁹⁷

Nonpoint Source Pollution Management

Closely related to the requirement for individual toxics control strategies are the strengthened requirements for nonpoint source pollution management. During floor debate on the Conference Report, it was noted that "the problem of nonpoint source pollution is a national problem requiring a national solution."¹⁹⁸ Congress also noted that "as much as 50 percent of the pollution is estimated to be caused by nonpoint source pollution [and] it is imperative that [nonpoint source] pollution be addressed promptly."¹⁹⁹

Section 316 of the Act establishes a national policy and programs for control of nonpoint sources of pollution as expeditiously as possible.²⁰⁰ The Act provides $400 million over four years to states or combinations of adjacent states to implement nonpoint source management programs including groundwater protection activities as part of a "comprehensive nonpoint source pollution control program."²⁰¹

Within 18 months of enactment, each state must prepare and submit a report identifying (1) those waters that "cannot reasonably be expected to attain or maintain applicable water quality standards or goals to comply with water quality standards without additional action to control nonpoint sources of pollution," and (2) the "categories and subcategories" of nonpoint sources "significantly" contributing to the pollution in those waters.²⁰² Each state must prepare a four-year management program that includes: (1) identification of "best management practices and measures" to control the nonpoint pollution identified in the assessment report; (2) identification of programs to "achieve implementation" of those measures; (3) certification by the state Attorney General that the state laws have adequate authority to implement the program; (4) identification of sources of all funding for nonpoint source pollution control that will be available in each fiscal year, and (5) a schedule for expeditious implementation of the program, including annual milestones. These programs are to be developed and implemented, to the maximum extent practicable, with the involvement of local and other entities with expertise and experience in control of nonpoint sources of pollution.²⁰³

The Administrator must approve or disapprove a state submission within 180 days or they are deemed approved.²⁰⁴ The criteria for disapproval are very specific. The [17 ELR 10322] Administrator may disapprove a program or portion thereof, if he determines that the plan is not likely to satisfy the goals and requirements of the Act, that adequate authority or resources do not exist to implement the program and that the plan is not adequate to reduce nonpoint source pollution and to improve water quality.²⁰⁵ If a plan is disapproved, the state has three months to revise the plan and the Administrator then has three months to approve or disapprove the revised program. If a state fails to submit a report or if it is not approved, a local public agency or organization with expertise in water pollution control may, with the approval of the state, submit a program for its area.²⁰⁶

This section also addresses the problem of interstate nonpoint source pollution. Where waters in a state with an approved program are not meeting applicable water quality standards and goals of the Act due to pollution from another state, the affected state may petition EPA to convene, and EPA shall convene, an interstate management conference to develop an agreement.²⁰⁷ To the extent that states reach agreement through the conference, their management programs will be revised accordingly and the agreements will be incorporated in the revised state programs.²⁰⁸ Nothing in this section was intended to supersede or abrogate water rights established by interstate water compacts, Supreme Court decisions, or state water laws.²⁰⁹

Finally, WQA § 316 has significant reporting and monitoring requirements. Each state shall submit progress reports to the Administrator who will then transmit to the Office of Management and Budget and appropriate federal agencies a list of federal programs and projects identified by each state for a determination of whether such federal projects would be consistent with the approved plan.²¹⁰ Each federal agency must modify its regulations and accommodate the concerns of the state.²¹¹ In addition, the Administrator shall report annually to Congress on the progress made the preceding year in the area of nonpoint source pollution.²¹²

Partial NPDES Program Delegation

When Congress enacted the Federal Water Pollution Control Amendments in 1972, a major focus was to encourage state administration of the NPDES program.²¹³ Under § 402(b), the Administrator was required to approve any state program that demonstrated that the state has adequate authority to administer the program in accordance with specific requirements. These included the authority to issue permits that ensure compliance with all applicable requirements of the Act, as well as authority to abate permit violations, including the ability to seek civil and criminal penalties.²¹⁴ As of 1986, 37 states had assumed the NPDES program.²¹⁵

A significant limitation in the program delegation scheme, however, was that states could not assume partial administration of the program. This limitation was remedied by the addition of subsection (n) to CWA § 402 in the Water Quality Act of 1987.²¹⁶ Under this provision, the governor of any state may submit and the Administrator may approve a partial permit program for point source discharges.²¹⁷ As a minimum, the state's partial permit program must cover either administration of a major category of the discharge into the state's navigable waters or a major component of the state's NPDES permit program.²¹⁸

With respect to the "major category of discharges" criteria for partial delegation, the Conferees' understanding was that it must cover, in a complete fashion, all of the discharges under the jurisdiction of a department or agency of the state and the Administrator must determine that the partial program represents a significant and identifiable part of the state's NPDES program.²¹⁹ With respect to the "major component" criteria, the partial program must represent a significant and identifiable part of the state's NPDES program, such as all major industrial discharges, and the Administrator must also approve a plan for the state to assume administration of the remainder of the state's NPDES program in phases within five years.²²⁰ Congress was very clear that complete assumption of the entire program must occur within the five-year period.²²¹

[17 ELR 10323]

Finally, amended § 402(c) allows a state to return and the Administrator to withdraw approval of delegated NPDES program responsibilities, even where partial delegation has occurred.²²² In the case of an approved permit program covering administration of a major category of a state's point source discharges, the entire permit program covering that category must be returned or withdrawn.²²³

Sewage Sludge

The Water Quality Act amends § 405(d) to incorporate a very stringent program for the control of sewage sludge. Congress recognized that many toxic pollutants are present in sewage sludge that may adversely affect public health, welfare, or the environment.²²⁴ Thus, the Administrator was directed to identify such toxic pollutants and to specify numerical limitations for each pollutant with final regulations to be issued by August 31, 1987.²²⁵ Management practice and numerical criteria must be adequate to protect the public health and environment as expeditiously as practicable, but no later than 12 months after publication, unless new pollution control facilities must be constructed.²²⁶ In such a case, compliance must be achieved within two years of publication.²²⁷

The Act also imposes important new requirements to be included in NPDES permits governing the management and disposal of sludge. The Administrator must impose conditions in permits issued to publicly owned treatment works to protect the public from the adverse effects of sewage sludge.²²⁸ While WQA § 406(b) amends CWA § 405(e) to provide that the manner of disposal of sewage sludge is a local determination, disposal of sludge must still meet all regulations established under the section.²²⁹ The only way NPDES permits issued under § 402 may not be required to meet the sludge management regulations is if those requirements have been included in a permit issued under the Solid Waste Disposal Act, the Safe Drinking Water Act, the Marine Protection Research and Sanctuaries Act, or the Clean Air Act, or under state permit programs approved by the Administrator.²³⁰

Congress also addressed the relationship between sewage sludge management and the issuance of "removal credits" under the Clean Water Act. Under § 307(b)(1) of the Act, an indirect discharger into a publicly owned treatment work (POTW) could receive a "removal credit" from the POTW for the amount of waste removed from the stream of waste water by the POTW itself.²³¹ This provision was designed to avoid redundant treatment. However, Congress imposed one very important criteria. A removal credit could not be granted to an indirect discharger if the removal of toxics from the liquid waste stream and consequent transfer of toxics to the POTW sludge would make the sludge itself toxic, in violation of regulations under § 405.²³² The sewage sludge-removal credit issue recently became very important with the decision of the Third Circuit in National Resources Defense Council, Inc. v. U.S. Environmental Protection Agency, which struck down EPA's removal credits regulatory scheme in the absence of full § 405 sludge regulations by EPA.²³³

The Conferees specifically addressed the effect of the NRDC decision in the context of the new sludge management requirements.²³⁴ Noting that twelve POTWs had obtained EPA removal credit approval under the vacated removal credit regulations, the Conferees recognized that these plants would suffer great inequities as a result of the decision since they had relied on EPA's approval in planning their pollution control systems.²³⁵ Thus, the Conferees provided temporary relief to these 12 POTWs by staying the effect of the court's decision that barred issuance of removal credits pending full promulgation of sludge regulations under § 405(d). The stay, however, will expire on August 31, 1987, the date established in the Act for the promulgation of sludge regulations.²³⁶ A similar stay was granted to 14 other POTWs whose credit applications were pending as of the date of enactment and for which EPA approves a program to issue removal credits before August 31, 1987.²³⁷ The Conferees also clearly stated that all other bases relied on by the NRDC court for invalidating the removal credit program "are not affected by this subsection."²³⁸

Finally, Congress addressed technological issues related to sludge management. The Administrator was directed to revise the § 301(h) test procedure guidelines for analyzing pollutants to include procedures for testing for regulated pollutants in sewage sludge.²³⁹ Congress also stated that evaporation into the air of toxic volatile organic chemicals was an unacceptable treatment technique. Therefore, removal credits could not be issued for such pollutants on the basis of their evaporation from treatment works.²⁴⁰

Municipal and Industrial Stormwater Discharges

The Water Quality Act of 1987 reflects Congress' concerns over the extensive contamination of our nation's waters resulting from discharges of stormwater from municipal and industrial point sources as well as the need to bring these sources within the NPDES permit program. While EPA had been concerned about the appropriate means of regulating stormwater for over 10 years, the Agency had made little progress in requiring most stormwater point sources to apply for permits.²⁴¹ Thus, Congress recognized [17 ELR 10324] the need to establish a reasonable program noting that "runoff from municipal separate storm sewers and industrial sites contains significant volumes of both toxic and conventional pollutants."²⁴²

Section 405 amends § 402 of the CWA by establishing priorities, deadlines, and permit requirements for stormwater point sources, and affords municipal and nonindustrial dischargers some relief from the 1972 permit application requirements.²⁴³ The Act establishes that as a general rule no permit will be required prior to October 1, 1992, for stormwater discharges except in five specific instances: (1) a discharge already subject to a permit issued before the date of enactment; (2) a discharge associated with industrial activity; (3) a discharge from a municipal separate storm sewer system serving a population of 250,000 or more; (4) a discharge from a municipal separate storm sewer system serving a population of 100,000 or more but less than 250,000; and (5) a discharge that contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States.²⁴⁴ Interestingly, the legislative history indicates that discharges "associated with industrial activity" include those "directly related to manufacturing, processing or raw materials storage areas" and would not include "discharges associated with parking lots and administrative and employee buildings."²⁴⁵

If a stormwater discharge is associated with an industrial activity or is from a storm sewer system serving a population of 250,000 or more, EPA or the state, where the state administers the program, must require the source to apply for a permit within three years of enactment of the WQA.²⁴⁶ Where a source is required to apply for a permit within such a three-year period, EPA or the state must also act to issue or deny the permit application within four years after the date of enactment.²⁴⁷ Thus, the Act appears to require expedited EPA processing of a permit application.²⁴⁸

A permit for a municipal separate storm sewer may, where appropriate, be issued on a systemwide or jurisdictionwide basis.²⁴⁹ In writing any permit for a municipal separate storm sewer, EPA or the state should pay particular attention to the nature and uses of the drainage area and the location of any industrial facility, open dump, landfill, or hazardous waste treatment, storage, or disposal facility that may contribute pollutants to the discharge.²⁵⁰ Storm water permits shall include requirements to effectively prohibit non-storm-water discharges to municipal separate storm sewers.²⁵¹

Permits issued under this section will provide for compliance as expeditiously as practicable, but in no event later than three years from the date the permit is issued and shall require controls to reduce the discharge of pollutants to the maximum extent practicable.²⁵² Such controls include management practices, control techniques and systems, design and engineering methods, and such other provisions, as the Administrator determines appropriate for the control of pollutants in the storm water discharge.²⁵³

Within four years of enactment, EPA must commence a control program for storm sewer systems servicing communities with populations between 100,000 and 250,000.²⁵⁴ This schedule reflects the continuing need to control storm water runoff, but gives EPA flexibility, in the first four years after enactment, to order its permitting priorities around those sources that are believed to be the most significant.²⁵⁵ Thus, Congress allowed EPA to establish regulations for permitting requirements for this category of sources within four years of enactment, with permits to be filed within five years and EPA action on the applications within six years.²⁵⁶

After October 1, 1992, all remaining, unpermitted storm water point sources will return to current law status and [17 ELR 10325] will be required to obtain permits under § 402 of the Clean Water Act.²⁵⁷ Congress indicated that it would be taking another look at this whole question before that date and will use the experience with storm water controls that has been established for larger communities under theprovisions in determining whether any changes in this deadline are warranted.²⁵⁸

EPA and the states should provide adequate opportunity for public participation in the development of any permit for a storm water point source.²⁵⁹ EPA also must conduct a study of any storm water discharge or class of discharges that are not required to obtain a permit within the first six years of enactment. This study is to determine the nature and extent of pollutants in such discharges and procedures and methods to control such discharges. The results of the study must be submitted to Congress by specified dates.²⁶⁰ This study will enable Congress to determine whether permitting of the remaining storm water point sources should be expedited beyond the schedule provided in the WQA.²⁶¹

Finally, the Water Quality Act exempts certain types of stormwater runoff and discharge from the Act's permit requirements. Section 401 amends § 402(l) of the CWA in providing that permits are not required where stormwater runoff is diverted around mining operations for oil and gas operations, and does not come into contact with overburden, raw material, product, or process waters.²⁶² Further, when stormwater runoff is not contaminated by contact with such material, as determined by the Administrator, permits are not required.²⁶³ However, Congress gave minimal guidance to the Administrator in deciding whether "contamination by contact" has occurred.²⁶⁴ In addition, Congress also amended the definition of point source to specifically exclude "agricultural stormwater discharges" just as irrigation return flows had been exempted in 1977.²⁶⁵ One commentator speculates that this exemption may cause confusion because "a good portion of the water which drainage systems deliver to water courses is not water which would flow there as the result of a rain storm …. Thus, the proposed exemption for agricultural drainage may have only partial application, particularly if the exemption is construed narrowly under standard rules of interpretation."²⁶⁶ In any event, the precise scope of this exemption will only become clearer upon interpretation by EPA and the courts.

Antibacksliding

In a major statutory clarification of an EPA regulatory program, Congress enacted § 404 of the Water Quality Act, which amends § 402 of the CWA by adding the antibacksliding provision. The regulatory program had its genesis in EPA's August 21, 1978, proposed Clean Water Act rulemaking.²⁶⁷ As the Clean Water Act regulatory process progressed, the antibacksliding regulation did also. The regulation was published in final form on September 26, 1984.²⁶⁸ The regulation generally prohibits EPA from reissuing an NPDES permit that contains effluent limitations, standards, or conditions that are less stringent than those contained in the previous permit.²⁶⁹ Limited exceptions are provided if the circumstances upon which the previous permit was based have materially and substantially changed since the time of permit issuance and constitute cause for permit modifications.²⁷⁰ The antibacksliding regulations were challenged both by industry petitioners and the Natural Resources Defense Council in the consolidated NPDES challenge in the U.S. Court of Appeals for the District of Columbia Circuit.²⁷¹

Section 404 of the WQA clarifies the basic premise of EPA's antibacksliding regulation by prohibiting the renewal, reissuance, or modification of best professional judgment (BPJ) and water-quality-based permits containing less stringent effluent limitations, except where specifically provided.²⁷² Backsliding for BPJ permits is allowed:

(1) where material and substantial alterations or additions to the facility occurred after issuance of the permit that justify the application of a less stringent effluent limit;²⁷³

(2) where information is available that was not available at the time the permit was issued (other than revised regulations, guidance, or test methods) and that would have justified the application of a less stringent effluent limitation at the time;²⁷⁴

(3) where the Administrator determines that technical mistakes or mistaken interpretation of law was made in issuing the permit;²⁷⁵

[17 ELR 10326]

(4) where a less stringent effluent limitation is necessary because of events over which the permittee has no control and for which there is no reasonable available remedy;²⁷⁶

(5) where the permittee has received a permit modification pursuant to §§ 301(c), 301(g), 301(h), 301(i), 301(k), 301(n), or 316(a) of the CWA;²⁷⁷ and

(6) where the permittee has installed the treatment facilities required to meet the effluent limitations in the previous permit, and has properly operated and maintained the facilities but has nevertheless been unable to achieve the previous effluent limits. The adjusted permit limitations under this exception may never be revised to a level less stringent than the level of pollution control actually achieved and never to a level less stringent than required by any applicable guideline.²⁷⁸

The exceptions are the same for water-quality-based permits, except the technical mistake and mistaken interpretations of law exceptions are not available.²⁷⁹ The exceptions allowed by the statute are, in some instances, somewhat broader than those allowed under EPA's regulations.²⁸⁰ However, the statutory exceptions have further limitations built in. CWA § 402(o)(2)(B) will not allow permits to be adjusted to require less stringent effluent limitations with respect to any revised waste load allocations or any alternative grounds for translating water quality standards into effluent limitations. However, where the cumulative effect of the revised waste load allocation results in a decrease of the amount of pollutants being discharged and the revised allocation is not the result of a discharger reducing or eliminating its discharge due to compliance with the Act or other non-water-quality-related reason, then the exception provided in § 402(o)(2)(B) can apply.

A general limitation established with respect to both BPJ and water-quality-based permits is that no permit may be renewed, reissued, or modified to contain an effluent limitation that is less stringent than required by effluent guidelines in effect at the time it is renewed, reissued, or modified.²⁸¹ Further, the renewed, reissued, or modified permit cannot contain a less stringent effluent limitation if such a limit would result in violation of water quality standards.²⁸²

Section 404 also limits revisions of CWA § 303 water-quality-related effluent limitations. Where the applicable water quality standard has not been attained, the total maximum daily load of pollutants (TMDL) or other alternative waste load allocation (WLA) may be revised only if the cumulative effect of the revised effluent limitations based on the TMDL or WLA will assure attainment of the water quality standard, or the designated use of the receiving waters that is not being attained is removed in accordance with regulations promulgated under § 303.²⁸³

Where the water quality standard has been attained, effluent limitations based on a TMDL or WLA, § 303 water quality standards, or any other permitting standard may be revised only if the revision is subject to and consistent with § 303's antidegradation policy.²⁸⁴ This provision applies where the water quality exceeds or equals either that required by applicable standards or the levels needed to protect actual or designated uses of the receiving waters.

EPA will undoubtedly be required to revise its current antibacksliding regulations in light of the WQA, especially the regulatory provisions that Congress did not adopt in enacting this section. However, its major hurdle, the question of whether the Clean Water Act prohibits backsliding, has been answered by Congress through this "clarifying" amendment.

Judicial Review

Section 505 of the WQA substantially modifies the "race to the courthouse" provisions of CWA § 509. First, it provides that proper venue for Court of Appeals review under § 509 shall be the circuit court for the judicial district in which the applicant resides or transacts business which is directly affected by the action in question.²⁸⁵ When two or more petitions for review are filed in different circuit courts, a random selection procedure to be administered by the Administrative Office of the United States Courts will take effect. When the EPA Administrator has received written notice of the filing of one or more petitions in different circuits within 30 days of receiving notice of the filing of the first petition for review, the Administrator shall notify the Administrative Office of the United States courts in writing, identifying the courts where the petitions were filed.²⁸⁶ Pursuant to the random selection process, which will be developed by the Administrative Office for this purpose, that Office shall, within three business days, select the court that the record shall be filed in from among those identified by the Administrator's communication.²⁸⁷ Once such a selection has been made, the other petitions shall be transferred to the selected court.²⁸⁸

The provision states that upon notification by the Administrative Office, the Administrator "shall promptly file the record in such Court."²⁸⁹ The direction to other circuits to transfer their cases is also qualified by the words "in which the record has been filed."²⁹⁰ This provision would appear to supersede Rule 17 of the Federal Rules of Appellate Procedure, which provides for filing 40 days after service of the petition for review. Thus, EPA must be prepared to file the record in as short a time as 33 days after the filing of the initial petition for review. The fact that petitions are filed in more than one circuit can no longer justify the position that filing of the record be stayed [17 ELR 10327] until consolidation and/or transfer motions are ruled upon since this provision eliminates the need for those motions. In light of the further amendment to CWA § 509(b)(1), which now provides for 120 days in which to challenge final agency action rather than 90, the new court selection process should result in reduced delays in obtaining ultimate resolution of petitions for review.²⁹¹

Any court where a petition for review is filed is also given the authority to stay, for 15 days, the effective date of any final agency action pending selection by the Administrative Office of the circuit court where the action will be reviewed.²⁹²

Finally, §§ 509 and 505(d) are amended to provide that costs of litigation, including attorneys and expert witness fees, are available to any prevailing or substantially prevailing party whenever the court determines that such an award is appropriate.²⁹³ This provision removes any doubt regarding § 509, which has never contained an attorneys fees provision, while clarifying the standard for fees under the district court jurisdiction of § 505.²⁹⁴

Special Programs

The Water Quality Act sets up several special programs to improve the water quality of important aquatic ecosystems. Most specifically, Congress established aNational Estuary Program and also established programs to deal with the Chesapeake Bay and the Great Lakes. In addition, the Act addresses the problems of Indian Tribes and contains numerous special provisions for other areas around the nation.

Section 317 of the Act establishes the National Estuary Program. In doing so, Congress declared that "the Nation's estuaries are of great national significance for fish and wildlife resources and provide important recreation and economic opportunities" and states that "it is national policy to maintain and enhance the water quality in estuaries and provide for the biological integrity of these waters."²⁹⁵ The definition of estuaries includes associated native ecosystems and was specifically designed to address problems created by the degradation of wetland areas.²⁹⁶

The Governor of a state may nominate an estuary that lies in whole or in part within such state and request a management conference to develop a comprehensive management plan.²⁹⁷ The Administrator's determination as to whether an estuary can be included in the program is based on the estuary's ecological significance among other factors.²⁹⁸

A major purpose of the management conference is to develop comprehensive conservation and management plans that recommend priority corrective actions and compliance schedules addressing point and nonpoint sources of pollution.²⁹⁹ The plans are to restore and maintain water quality, shellfish, fish and wildlife populations, and recreational activities in the estuary as well as to protect designated uses.³⁰⁰ Another important function of the management conference is to review any federal financial assistance program or federal development project subject to Executive Order 12372 to determine whether such assistance programs or projects would be consistent with and further the purposes of the plan.³⁰¹ Members of the management conference include the Administrator, representatives of state and foreign governments, appropriate interstate or regional agencies, and other appropriate federal agencies, local governments, affected industries, public and private educational institutions, and the general public.³⁰² The conferences are to be convened for a period up to five years and may be extended or reconvened by the Administrator.³⁰³

Management conferences must consider any relevant special area management plan under the Coastal Zone Management Act.³⁰⁴ The plan developed by the conference must also include requirements for attainment of water quality in estuaries, including toxicity-based standards and best management practices for nonpoint sources of pollution.³⁰⁵ Plans are to be approved by the Administrator with the concurrence of the affected Governor or Governors and may then be implemented with funds authorized under Titles II and VI and § 319 of the Act.³⁰⁶

The Administrator is also authorized to make grants to appropriate public and private agencies, institutions, or individuals to assist in "research" and other work necessary for the development of conservation and management plans.³⁰⁷ Twelve million dollars is authorized for fiscal [17 ELR 10328] years 1987 through 1991 for this purpose with a portion of this money provided to the Administrator of the National Oceanic and Atmospheric Administration (NOAA) to do water quality monitoring and ecosystem assessment in estuaries.³⁰⁸

Finally, the Administrator in cooperation with the Administrator of NOAA must submit a biennal report to Congress on the results of monitoring and research conducted under the program.³⁰⁹ The report must provide an assessment of the state and health of the Nation's estuarine zones, a discussion of pollution problems and trends in pollutant concentrations and an evaluation of pollution abatement activities and management programs among other issues.³¹⁰

Section 103 of the Water Quality Act amends Title I of the Clean Water Act to add new § 117, which formally establishes a federal program for cleaning up the Chesapeake Bay.³¹¹ The Administrator is authorized to establish and maintain an office of Chesapeake Bay Programs within EPA.³¹² The office is to collect and make available information pertaining to environmental quality of the bay, coordinate federal and state efforts to improve water quality of the bay, determine the impact of sediment deposition in the bay, and determine the impact of natural and man induced environmental changes on the resources of the bay with particular emphasis on pollutant loadings of nutrients, chlorine, acid precipitation, dissolved oxygen, and toxic pollutants. Special attention is to be given to the impact of such changes on striped bass.³¹³ Subsection (b) of new § 117 provides for interstate development plan grants up to 50 percent of the cost of implementing the management mechanism contained in the Chesapeake Bay Program.³¹⁴ In reviewing funding proposals submitted under this subsection, the Administrator must consider the need to provide for effective control of nonpoint sources of pollution to the bay.³¹⁵

A new comprehensive program to address pollution problems of the Great Lakes is set up by § 104, which creates a new § 118 of the Clean Water Act.³¹⁶ Subsection (a) contains a congressional finding that the Great Lakes are a valuable national resource and that the United States should seek to attain the goals of the Great Lakes Water Quality Agreement of 1978.³¹⁷ Subsection (b) establishes the Great Lakes National Program Office to be located in a Great Lakes state.³¹⁸ Subsection (c) sets up the office's functions. These include developing and implementing specific action plans to carry out the United States' responsibilities under the Great Lakes Water Quality Agreement of 1978, establishing a systemwide surveillance network to monitor water quality and serving as the liaison with the International Joint Commission, the Canadian counterpart of the agency, and coordinating with EPA and other federal actions aimed at improving Great Lakes water quality.³¹⁹ The program office is to develop, in consultation with the states, a five-year plan and program for reducing the amount of nutrients introduced into the Great Lakes, including any management program for reducing nonpoint source pollution.³²⁰ The office is also required to carry out a five-year study for control and removal of toxic pollutants.³²¹ Further, the section establishes a research office within NOAA to conduct comprehensive environmental research programs.³²² Subsection (h) authorizes $11 million for fiscal year 1987 through 1991 to implement this section.³²³

Section 506 designates a new § 518 of the Clean Water Act to deal with the problems of Indian tribes. Indian tribes are to be treated as states with respect to water quality allocations.³²⁴ Subsection (b) directs the Administrator in cooperation with the Director of Indian Health Services to assess the need for sewage treatment works that serve tribes.³²⁵ The Administrator must report to Congress detailing the needs of tribes and how they will be met through development of waste treatment management plans and construction of treatment works.³²⁶ Indian tribes are also treated as states for the purposes of Title II of the Act and with respect to sections dealing with water quality standards, limitations, permitting, and enforcement.³²⁷ Tribal authority is clearly established and the Administrator is directed to issue regulations specifying how tribes shall be treated as states for the purposes of the Act, including provisions for dispute resolution with affected states sharing common water bodies.³²⁸ Indian tribes are also eligible to receive nonpoint source management planning grants under § 319.³²⁹

Finally, the Act contains numerous other special provisions. These include provisions that limit the volume of raw sewage discharged by the City of New York,³³⁰ a program of grant assistance to develop and implement a management program for improving the water quality of Boston Harbor,³³¹ and a provision to make a grant to the San Diego, California, Water Reclamation Agency to demonstrate and test innovative technologies for the recovery and use of wastewater.³³²

Conclusion

In enacting the Water Quality Act of 1987, Congress provided [17 ELR 10329] important new authority in the effort to improve the quality of the nation's waters in four significant respects. First, Congress recognized that past authorities to address major water quality problems were not adequate. Therefore, the Act targeted specific water pollution problems and mandated strengthened programs to address those problems. This new effort ranges from the requirement for individual toxics control strategies and nonpoint source pollution management to specific programs to deal with stormwater pollution, our national estuaries, and aquatic "treasures" such as the Chesapeake Bay and the Great Lakes. Second, Congress recognized the need to redefine the federal-state partnership in water pollution control management, giving states more flexibility and yet retaining significant federal oversight. Thus, Congress provided for the phase out of the municipal construction grants program while establishing a state loan program to encourage states to assume more of the direct funding responsibility for waste water treatment. In addition, by allowing for partial NPDES programs delegation, Congress hoped to encourage full state assumption of NPDES program administration, a major unfulfilled goal of the original Act. Third, Congress understood that the Act's important goals could not be fully achieved without strengthening the enforcement authorities of the federal and state governments. Hence, Congress increased civil and criminal judicial penalty authority and gave EPA and the Corps important new authority to assess administrative penalties. Finally, Congress recognized the need to provide more definitive guidance to the regulated community and to provide some avenues of relief from the Act's strict guidelines where truly warranted. The Water Quality Act's provisions relating to compliance dates, modifications, and antibacksliding attempt to achieve such a result.

Ultimately, however, the goal of cleaning up our nation's waters will depend on more than just the new authorities and programs in the Water Quality Act of 1987. It will depend on a recognition of all segments of our society, including government, industry, environmental groups, and the public, that only through a concerted and cooperative effort will "the chemical, physical and biological integrity of the nation's waters be restored and maintained."

1. Pub. L. No. 100-4, 101 Stat. 7 (1987). Congress' desire to make theWQA the first piece of legislation of the historic 100th Congress has resulted in a unique legislative situation. In researching the legislative history of the WQA, the traditional major indicators of legislative intent, Conference, Senate, and House reports, are from a Congress (the 99th) that did not pass the legislation. While this will present some problems, the speed with which the WQA was passed and the fact that it is identical (save technical corrections) to the bill passed in 1986, should remove serious concerns as to the legislative intent of the Congress that passed the Act. Nonetheless, it presents an unusual set of circumstances.

2. The House of Representatives overrode the veto on February 3, 1987, by a vote of 401-26; the Senate did likewise on February 4, 1987, by a vote of 86-14.

3. Formally titled the Federal Water Pollution Control Act, the Act is commonly referred to as the Clean Water Act.

4. Stever, History of Water Pollution Control in the United States, in LAW OF ENVIRONMENTAL PROTECTION § 12.01 (S. Novick ed. 1987).

5. CWA § 101(a), 33 U.S.C. § 1251(a).

6. Title II, Water Quality Act of 1987.

7. WQA §§ 211, 212, CWA §§ 207, 601-607, 101 Stat. 21 (1987).

8. See SEN. REP. NO. 50, 99th Cong., 1st Sess. 55 (1985).

9. WQA § 203, CWA § 203(a)(2), 101 Stat. 16 (1987) (to be codified at 33 U.S.C. § 1283(a)(2)).

10. Id.

11. Id.

12. WQA § 202(a), CWA § 202(a)(1), 101 Stat. 15 (1987) (to be codified at 33 U.S.C. § 1283(a)(1)).

13. WQA § 202(b), CWA § 202(a)(1), 101 Stat. 15 (1987) (to be codified at 33 U.S.C. § 1282(a)(1)).

14. CWA § 202(a)(1), 33 U.S.C. § 1282(a)(1).

15. WQA § 211, CWA § 207, 101 Stat. 21 (1987) (to be codified at 33 U.S.C. § 1287).

16. 133 CONG. REC. S19 (daily ed. Jan. 6, 1987) (Sen. Mitchell).

17. WQA § 212(a), CWA § 602, 101 Stat. 22 (1987).

18. WQA § 212(a), CWA § 601(a), 101 Stat. 22 (1987).

19. WQA § 212(a), CWA § 602(b), 101 Stat. 22 (1987).

20. WQA § 212(a), CWA § 601(b), 101 Stat. 22 (1987).

21. WQA § 212(a), CWA § 602(b)(2), 101 Stat. 22 (1987).

22. WQA § 212(a), CWA § 602(b)(3), 101 Stat. 22 (1987).

23. WQA § 212(a), CWA § 607, 101 Stat. 26 (1987).

24. WQA § 212(a), CWA § 602(b)(6), 101 Stat. 23 (1987).

25. CWA § 201(b), 33 U.S.C. § 1281(b).

26. CWA § 201(g)(1), 33 U.S.C. § 1281(g)(1).

27. CWA § 201(g)(2), 33 U.S.C. § 1281(g)(2).

28. CWA § 201(g)(3), 33 U.S.C. § 1281(g)(3).

29. CWA § 201(g)(5), 33 U.S.C. § 1281(g)(5).

30. CWA § 201(g)(6), 33 U.S.C. § 1281(g)(6).

31. CWA § 201(n)(1), 33 U.S.C. § 1281(n)(1).

32. CWA § 201(o), 33 U.S.C. § 1281(o).

33. CWA § 204(a)(1), 33 U.S.C. § 1284(a)(1).

34. CWA § 204(a)(2), 33 U.S.C. § 1284(a)(2).

35. CWA § 204(b)(1), 33 U.S.C. § 1284(b)(1).

36. CWA § 204(d)(2), 33 U.S.C. § 1284(d)(2).

37. CWA § 211, 33 U.S.C. § 1291.

38. CWA § 218, 33 U.S.C. § 1298.

39. CWA § 511(c)(1), 33 U.S.C. § 1371(c)(1).

40. CWA § 513, 33 U.S.C. § 1372.

41. WQA § 212(a), CWA § 603(c), 101 Stat. 23 (1987).

42. WQA § 212(a), CWA § 603(d)(1), 101 Stat. 24 (1987).

43. 133 CONG. REC. H135 (daily ed. Jan. 7, 1987) (Section-by-Section Analysis prepared by Chairman James J. Howard).

44. WQA § 212(a), CWA § 603(g), 101 Stat. 24 (1987).

45. 133 CONG. REC. H135 (daily ed. Jan. 7, 1987) (Section-by-Section Analysis prepared by Chairman James J. Howard).

46. WQA § 212(a), CWA § 603(g), 101 Stat. 24 (1987).

47. WQA § 212(a), CWA § 605(a), 101 Stat. 25 (1987).

48. WQA § 212(a), CWA § 605(b), 101 Stat. 25 (1987).

49. Id.

50. WQA § 212(a), CWA § 605(c), 101 Stat. 25 (1987).

51. 133 CONG. REC. S1015 (daily ed. Jan. 21, 1987) (Sen. Durenberger).

52. 133 CONG. REC. H169 (daily ed. Jan. 8, 1987) (Rep. Howard).

53. 133 CONG. REC. S1003 (daily ed. Jan. 21, 1987) (Sen. Gramm).

54. CWA § 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A), CWA § 304(b)(1), 33 U.S.C. § 1314(b)(1). See also EPA v. National Crushed Stone Association, 449 U.S. 64, 10 ELR 20924 (1981).

55. CWA § 301(b)(2)(A) and (c), 33 U.S.C. § 1311(b)(2)(A), (c), CWA § 304(b)(2), 33 U.S.C. § 1314(b)(2).

56. CWA § 301(b)(2)(E), 33 U.S.C. § 1311(b)(2)(E), CWA § 304(a)(4), 33 U.S.C. § 1314(a)(4).

57. CWA § 304(b)(2)(E), 33 U.S.C. § 1314(b)(2)(E).

58. CWA § 101(1) states that "it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985," 33 U.S.C. § 1251(1).

59. 133 CONG. REC. H10933 (daily ed. Oct. 15, 1986) (remarks of Rep. Snyder).

60. Id. at H10934.

61. Id.

62. WQA § 301(a), (b), CWA § 301(b)(2)(C), (D), 101 Stat. 29 (1987) (to codified at 33 U.S.C. § 1311(b)(2)(C), (D)).

63. WQA § 301(c), CWA § 301(b)(2)(E), 101 Stat. 29 (1987) (to be codified at 33 U.S.C. § 1311(b)(2)(E)).

64. WQA § 301(d), CWA § 301(b)(2)(F), 101 Stat. 30 (1987) (to be codified at 33 U.S.C. § 1311(b)(2)(F)).

65. WQA § 301(f), CWA § 301(f), 101 Stat. 30 (1987) (to be codified at 33 U.S.C. § 1311(f)). These priority toxic pollutants are organic chemicals, plastics, synthetic fibers, and pesticides.

66. H.R. CONF. REP. NO. 1004, 99th Cong., 2d Sess. 115 (1986) [hereinafter CONF. REP.].

67. Id.

68. Id.

69. Id.

70. 133 CONG. REC. H10934 (daily ed. Oct. 15, 1986) (remarks of Rep. Snyder).

71. WQA § 302, 101 Stat. 30 (1987).

72. WQA § 302(a), CWA § 301(g)(i), 101 Stat. 30 (to be codified at 33 U.S.C. § 1311(g)(1)).

73. Id.

74. CONF. REP., supra note 66, at 116.

75. Id.

76. WQA § 302(b), CWA § 301(g)(4)(A), (B)(i), 101 Stat. 31 (1987) (to be codified at 33 U.S.C. § 1311(g)(4)(A), (B)(i)).

77. WQA § 302(b), CWA § 301(g)(4)(B)(ii), 101 Stat. 31 (1987) (to be codified at 33 U.S.C. § 1311(g)(4)(B)(ii)).

78. WQA § 302(b), CWA § 301(g)(4)(B)(iii), 101 Stat. 31 (1987) (to be codified at 33 U.S.C. § 1311(g)(4)(B)(iii)).

79. WQA § 302(b), CWA § 301(g)(4)(B)(iv), 101 Stat. 31 (1987) (to be codified at 33 U.S.C. § 1311(g)(4)(B)(iv)).

80. WQA § 302(b), CWA § 301(g)(4)(E), 101 Stat. 32 (1987) (to be codified at 33 U.S.C. § 1311(g)(4)(E)).

81. WQA § 302(b), CWA § 301(g)(4)(C)(i), 101 Stat. 31 (1987) (to be codified at 33 U.S.C. § 1311(g)(4)(C)(i)).

82. WQA § 302(b), CWA § 301(g)(4)(C)(ii), (iii), 101 Stat. 31 (1987) (to be codified at 33 U.S.C. § 1311(g)(4)(C)(ii), (iii)).

83. WQA § 302(c), CWA § 301(j)(3)(A), 101 Stat. 32 (1987) (to be codified at 33 U.S.C. § 1311(j)(3)(A)).

84. WQA § 302(c), CWA § 301(j)(3)(B), 101 Stat. 32 (1987) (to be codified at 33 U.S.C. § 1311(j)(3)(B)).

85. WQA § 302(c), CWA § 301(j)(4), 101 Stat. 32 (1987) (to be codified at 33 U.S.C. § 1311(j)(4)).

86. WQA §§ 302(e)(1), (2), 101 Stat. 32 (1987).

87. WQA § 302(e)(2), 101 Stat. 32 (1987).

88. WQA § 303(a), CWA § 301(h)(2), 101 Stat. 33 (1987) (to be codified at 33 U.S.C. § 1311(h)(2)).

89. WQA § 303(b)(1), CWA § 301(h)(3), 101 Stat. 33 (1987) (to be codified at 33 U.S.C. § 1311(h)(3)).

90. WQA § 303(b)(2), 101 Stat. 33 (1987).

91. WQA § 303(c), CWA § 301(h)(6), 101 Stat. 33 (1987) (to be codified at 33 U.S.C. § 1311(h)(6)).

92. Id.

93. WQA § 303(d)(1), CWA § 301(h)(9), 101 Stat. 33 (1987) (to be codified at 33 U.S.C. § 1311(h)(9)).

94. WQA § 303(d)(2), CWA § 301(h)(9), 101 Stat. 33 (1987) (to be codified at 33 U.S.C. § 1311(h)(9)).

95. WQA § 303(e), CWA § 301(h), 101 Stat. 34 (1987) (to be codified at 33 U.S.C. § 1311(h)).

96. Id.

97. WQA § 303(g), 101 Stat. 34 (1987).

98. WQA § 304(a), CWA § 301(i)(1), 101 Stat. 34 (1987) (to be codified at 33 U.S.C. § 1311(i)(1)).

99. WQA § 304(b), 101 Stat. 34 (1987).

100. 133 CONG. REC. H136 (daily ed. Jan. 7, 1987) (Section-by-Section Analysis prepared by Chairman James J. Howard).

101. WQA § 305(a), CWA § 301(k).

102. See also, Compliance Dates, supra text accompanying notes 54-70.

103. WQA § 305(b), CWA § 301(k), 101 Stat. 35 (1987) (to be codified at 33 U.S.C. § 1311(k)).

104. CONF. REP., supra note 66, at 120.

105. 133 CONG. REC. H136 (daily ed. Jan. 7, 1987) (Section-by-Section Analysis prepared by Chairman James J. Howard). These regulations appear at 40 C.F.R. § 122.21(l).

106. See E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 7 ELR 20191 (1977); Chemical Manufacturers Ass'n v. NRDC, 470 U.S. 116, 15 ELR 20230 (1985).

107. 133 CONG. REC. H171 (daily ed. Jan. 8, 1987) (Rep. Hammer-schmidt).

108. 133 CONG. REC. S736 (daily ed. Jan. 14, 1987) (Sen. Chafee).

109. WQA § 306(a), CWA § 301(n)(1)(A), 101 Stat. 35 (to be codified at 33 U.S.C. § 1311(n)(1)(A)).

110. Id.

111. CWA § 304(b)(2)(B), 33 U.S.C. § 1314(b)(2)(B).

112. 133 CONG. REC. H137 (daily ed. Jan. 7, 1987) (Section-by-Section Analysis prepared by Chairman James J. Howard).

113. Id.

114. WQA § 306(a), CWA § 301(n)(1)(B)(i), (ii), 101 Stat. 35 (1987) (to be codified at 33 U.S.C. § 1311(n)(1)(B)(i), (ii)).

115. CONF. REP., supra note 66, at 123.

116. WQA § 306(a), CWA § 301(n)(2), 101 Stat. 35 (1987) (to be codified at 33 U.S.C. § 1311(n)(2)).

117. WQA § 306(a), CWA § 301(n)(3), 101 Stat. 35 (1987) (to be codified at 33 U.S.C. § 1311(n)(3)). The specific inclusion of the words "by final agency action" was intended to establish formal procedures including public notice and comment. CONF. REP., supra note 66, at 124.

118. WQA § 306(a), CWA § 301(n)(6), 101 Stat. 36 (1987) (to be codified at 33 U.S.C. § 1311(n)(6)).

119. WQA § 306(a), CWA § 301(n)(1)(C), 101 Stat. 35 (1987) (to be codified at 33 U.S.C. § 1311(n)(1)(C)).

120. WQA § 306(a), CWA § 301(n)(1)(D), 101 Stat. 35 (1987) (to be codified at 33 U.S.C. § 1311(n)(1)(D)).

121. WQA § 306(a), CWA § 301(o), 101 Stat. 36 (1987) (to be codified at 33 U.S.C. § 1311(o)).

122. Id.

123. WQA § 306(c), 101 Stat. 36 (1987).

124. 133 CONG. REC. H162 (daily ed. Jan. 8, 1987) (Reps. Lott and Livingston).

125. WQA § 306(c), 101 Stat. 36 (1987).

126. WQA § 314(a), CWA § 309(g) (to be codified at 33 U.S.C. § 1319(g)).

127. CWA § 404, 33 U.S.C. § 1344. The reference to past violations as a basis for administrative penalties could have implications for the interpretation of § 505(a) of the CWA, which allows a citizen suit to be commenced against persons "alleged to be in violation" of the CWA, including the assessment of penalties. Currently there is a split of authority whether an action may be maintained solely to seek penalties for past violations. Contrast Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 791 F.2d 304, 16 ELR 20636 (4th Cir. 1986) (citizens seeking only penalties for past violations may maintain a suit); Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392, 15 ELR 20385 (5th Cir. 1985) (citizens cannot sue only for penalties for past violations); Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp., 807 F.2d 1089, 17 ELR 20374 (1st Cir. Dec. 18, 1986) (citizens alleging only past violations may maintain suit if they seek an injunction to prevent further violations and violations are of a type likely to continue); and Sierra Club v. Shell Oil Co., 17 ELR 20767 (May 29, 1987) (following Hamker in holding that a citizen suit based on multiple, sporadic, and past violations can not be brought for civil penalties). The Supreme Court has accepted a petition for writ of certiorari in Gwaltney to resolve a conflict between the circuits, 55 U.S.L.W. 3472 (U.S. Jan. 12, 1987) (No. 86-473). See also J. MILLER, CITIZEN SUITS: PRIVATE ENFORCEMENT OF FEDERAL POLLUTION CONTROL LAWS § 8.2 (Envtl. L. Inst. 1987).

128. WQA § 314(a), CWA § 309(g)(2)(A), 101 Stat. 46 (1987) (to be codified at 33 U.S.C. § 1319(g)(2)(A)).

129. Id.

130. Id.

131. WQA § 314(a), CWA § 309(g)(2)(B), 101 Stat. 46 (1987) (to be codified at 33 U.S.C. § 1319(g)(2)(B)).

132. Id.

133. WQA § 314(a), CWA § 309(g)(4)(A), 101 Stat. 47 (1987) (to be codified at 33 U.S.C. § 1319(g)(4)(A)).

134. Id.

135. WQA § 314(a), CWA § 309(g)(4)(A), (B), 101 Stat. 47 (1987) (to be codified at 33 U.S.C. § 1319(g)(4)(A), (B)).

136. Id.

137. WQA § 314(a), CWA § 309(g)(4)(C), 101 Stat. 47 (1987) (to be codified at 33 U.S.C. § 1319(g)(4)(C)).

138. WQA § 314(a), CWA § 309(g)(3), 101 Stat. 47 (1987) (to be codified at 33 U.S.C. § 1319(g)(3)).

139. Id.

140. 133 CONG. REC. S736 (daily ed. Jan. 14, 1987) (remarks of Sen. Chafee).

141. WQA § 314(a), CWA § 309(g)(6), 101 Stat. 47 (1987) (to be codified at 33 U.S.C. § 1319(g)(6)).

142. Id.

143. Remarks by Senator Chafee provide guidance in determining whether a state administrative penalty action will preempt a federal judicial penalty action. As Senator Chafee stated:

While redundant enforcement activity is to be avoided and state action to remedy a violation of federal law is to be encouraged, the limitation on federal civil penalty actions clearly applies only in cases where the state in question has been authorized under § 402 to implement the relevant permit program.

A single discharge may be a violation of both state and federal law and a state is entitled to enforce its own law. However, only if a state has received authorization under § 402 to implement a particular permitting program can it prosecute a violation of federal law. Thus, even if a nonauthorized state takes action under state law against a person who is responsible for a discharge which also constitutes a violation of the federal permit, the state action cannot be addressed to the federal violation, for the state has no authority over the federal permit limitation or condition in question. In such case, the authority to seek civil penalties for violation of the federal law under subsections 309(d) or 311(b) or § 505 would be unaffected by the state action, notwithstanding paragraph 309(g)(6).

In addition, the limitation of 309(g)(6) applies only where a state is proceeding under a state law that is comparable to § 309(g). For example, in order to be comparable, a state law must provide for a right to a hearing and for public notice and participation procedures similar to those set forth in § 309(g); it must include analogous penalty assessment factors and judicial review standards and it must include provisions that are analogous to the other elements of § 309(g).

133 CONG. REC. S737 (daily ed. Jan. 14, 1987).

144. 133 CONG. REC. S736 (daily ed. Jan. 14, 1987) (remarks of Sen. Chafee).

145. WQA § 314(a), CWA § 309(g)(6), 101 Stat. 47 (1987) (to be codified at 33 U.S.C. § 1319(g)(6)).

146. Under § 505 of the Clean Water Act, a citizen suit may not be commenced "if the [EPA] Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State, to require compliance with the standard, order or limitation." 33 U.S.C. § 1365(b)(1)(B). Courts have held that an EPA administrative order does not bar a CWA citizen suit. SPIRG v. Fritzsche, Dodge and Olcott, Inc., 759 F.2d 1131, 15 ELR 20427 (3d Cir. 1981); Sierra Club v. Kerr-McGee, Inc., 16 ELR 20083 (W.D. La. Oct. 29, 1985); Braughmar v. Branford Coal Co., 592 F.2d 215 (3d Cir. 1979), cert. den., 441 U.S. 961 (1979). Some courts have held that an administrative proceeding brought by a state environmental agency was not a "court proceeding" and therefore did not bar a CWA citizen suit. Wiconisco Creek Watershed v. Kocher Coal Co., 641 F. Supp. 712 (M.D. Pa. 1986), Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 15 ELR 20674 (2d Cir. 1985), Connecticut Fund for the Environment v. L & W Industries, Inc., 631 F. Supp. 1289, 16 ELR 20666 (D. Conn. 1986). Other courts, however, have held that a state administrative action may bar a citizen suit under a state statute setting up an administrative forum with authority analogous to judicial authority.

147. 133 CONG. REC. S736-737 (daily ed. Jan. 14, 1987) (remarks of Senator Chafee).

148. As Senator Chafee stated in floor debate on the Water Quality Act, "EPA has new authority to assess penalties against unpermitted discharges. I expect EPA to use this authority aggressively against illegal polluters even if a memorandum of agreement is not concluded with the Secretary of the Army." 133 CONG. REC. S736-737 (daily ed. Jan. 14, 1987).

149. WQA § 314, CWA § 309(g)(1)(B), 101 Stat. 46 (1987) (to be codified at 33 U.S.C. § 1319(g)(1)(B)).

150. CONF. REP., supra note 66, at 138-39.

151. WQA § 314(a), CWA § 309(g)(8), 101 Stat. 48 (1987) (to be codified at 33 U.S.C. § 1319(g)(8)).

152. Id.

153. Id.

154. Id.

155. Id. Also, the Supreme Court very recently held that there is a Seventh Amendment right to a jury trial to determine liability in a wetlands enforcement action for civil penalties under the Clean Water Act. Tull v. United States, 481 U.S. __, 17 ELR 20667 (1987). The Court, however, held that the Seventh Amendment is not applicable to administrative proceedings. Tull v. United States, 17 ELR 20667, 20669, at n.4. In light of the Tull ruling, the Corps and EPA may have increased incentive to use the new administrative penalty authority under the WQA. EPA and the Corps, however, will have to decide whether a class II penalty is worth pursuing since a formal APA hearing before an ALJ under 5 U.S.C. 554 would be required. The agencies may feel that it might be worthwhile going through a class II hearing as opposed to seeking the same size penalty in a judicial action with the possibility of a jury trial. See also Openchowski, Changing the Nature of Federal Enforcement of Environmental Laws, 17 ELR 10322 (Aug. 1987).

156. WQA § 314(a), CWA § 309(g)(10), 101 Stat. 49 (1987) (to be codified at 33 U.S.C. § 1319(g)(10)).

157. WQA § 314(a), CWA § 309(g)(9), 101 Stat. 48 (1987) (to be codified at 33 U.S.C. § 1319(g)(9)).

158. Id.

159. WQA § 313(b), CWA § 309(d), 101 Stat. 45 (1987) (to be codified at 33 U.S.C. § 1319(d)).

160. WQA § 313(a)-(d), CWA §§ 309(d), 404(s), 101 Stat. 45 (to be codified at 33 U.S.C. §§ 1319(d), 1344(s)).

161. CONF. REP., supra note 66, at 134.

162. Id. at 138.

163. Id.

164. WQA § 313(c), CWA § 309(d), 101 Stat. 45 (1987) (to be codified at 33 U.S.C. § 1319(d)).

165. Id.

166. CONF. REP., supra note 66, at 139.

167. WQA § 312, CWA § 309(c), 101 Stat. 42 (1987) (to be codified at 33 U.S.C. § 1319(c)).

168. WQA § 312, CWA § 309(c)(2)(B), 101 Stat. 43 (1987) (to be codified at 33 U.S.C. § 1319(c)(2)(B)).

169. Id.

170. CONF. REP., supra note 66, at 134.

171. Id.

172. WQA § 312, CWA § 309(c)(3), 101 Stat. 43 (1987) (to be codified at 33 U.S.C. § 1319(c)(3)).

173. 42 U.S.C. § 6928(e), ELR STAT. RCRA 020.

174. WQA § 312, CWA § 309(c)(3), 101 Stat. 43 (1987) (to be codified at 33 U.S.C. § 1319(c)(3)).

175. Id.

176. WQA § 312, CWA § 309(c)(4), 101 Stat. 44 (1987) (to be codified at 33 U.S.C. § 1319(c)(4)).

177. Id.

178. WQA § 312, CWA § 309(c)(1), (2), 101 Stat. 42 (1987) (to be codified at 33 U.S.C. § 1319(c)(1), (2)).

179. Id.

180. CWA § 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C).

181. CWA § 303(c)(2), 33 U.S.C. § 1313(c)(2).

182. Environmental Defense Fund v. Costle, Inc., 657 F.2d 275, 11 ELR 20459 (D.C. Cir. 1981).

183. CWA § 303(c)(2), 33 U.S.C. § 1311(b)(1)(C).

184. As Senator Moynihan stated in floor debate on the Water Quality Act, "EPA has already identified 34 of these areas which may require more stringent controls than the best available technology standard currently mandated by the Act." 133 CONG. REC. S759 (daily ed. Jan. 14, 1987).

185. WQA § 308, CWA § 304(l), 101 Stat. 38 (1987) (to be codified at 33 U.S.C. § 1314(l)).

186. Id.

187. Id.

188. Id.

189. WQA § 308(a), CWA § 304(l)(2), 101 Stat. 38 (1987) (to be codified at 33 U.S.C. § 1314(l)(2)).

190. WQA § 308(a), CWA § 304(l)(3), 101 Stat. 38 (1987) (to be codified at 33 U.S.C. § 1314(l)(3)).

191. Id.

192. WQA § 308(c), CWA § 304(a)(8), 101 Stat. 39 (1987) (to be codified at 33 U.S.C. § 1314(a)(8)).

193. Id.

194. WQA § 308(d), CWA § 303(c)(2), 101 Stat. 39 (1987) (to be codified at 33 U.S.C. § 1313(c)(2)).

195. WQA § 308(g), 101 Stat. 40 (1987).

196. WQA § 308(f), CWA § 304(m), 101 Stat. 39 (1987) (to be codified at 33 U.S.C. § 1314(m)).

197. WQA § 308(b), CWA § 509(b)(1), 101 Stat. 39 (1987) (to be codified at 33 U.S.C. § 1369(b)(1)).

198. 133 CONG. REC. S744 (daily ed. Jan. 14, 1987) (statement of Sen. Baucus).

199. 133 CONG. REC. H175 (daily ed. Jan. 8, 1987) (statement of Rep. Nowak). In Senate debate, Senator Mitchell noted that "[n]onpoint pollution is caused by general runoff, rather than discharge from a specific pipe. These nonpoint sources of pollution are thought to cause over half your remaining water pollution problems." 133 CONG. REC. S734 (daily ed. Jan. 14, 1985). See also CONF. REP., supra note 66, at 143.

200. WQA § 316(a), CWA § 319, 101 Stat. 52 (1987) (to be codified at 33 U.S.C. § 1329).

201. Id. The conferees stressed the need to include more rather than fewer waters as subject to this program, by indicating that "[a] particular water body or segment should not be excluded from identification under this subsection on a theoretical showing that it would be possible to meet water quality standards without nonpoint source controls. 'Reasonably expected' is interpreted to mean that all waters for which nonpoint controls would be an appropriate and effective means of achieving water quality standards will be identified in the State's report." CONF. REP., supra note 66, at 143.

During floor debates, however, it was noted that the term "significant" was inserted "to exclude trivial sources of pollution which are not related to the water quality programs identified by the State program." 133 CONG. REC. S749 (daily ed. Jan. 14, 1987) (remarks of Sen. Durenberger). Senator Durenberger also stated that "the state has broad discretion to establish categories and subcategories that are relevant and appropriate for the types of nonpoint source pollution that the State identifies …." Id.

202. WQA § 316(a), CWA § 319(b)(2), 101 Stat. 53 (1987) (to be codified at 33 U.S.C. § 1329(b)(2)).

203. WQA § 316(a), CWA § 319(b)(3), 101 Stat. 54 (1987) (to be codified at 33 U.S.C. § 1329(b)(3)).

204. WQA § 316(a), CWA § 319(d)(1), 101 Stat. 54 (1987) (to be codified at 33 U.S.C. § 1329(d)(1)).

205. WQA § 316(a), CWA § 319(d)(2), 101 Stat. 55 (1987) (to be codified at 33 U.S.C. § 1329(d)(2)).

206. WQA § 316(a), CWA § 319(e), 101 Stat. 55 (1987) (to be codified at 33 U.S.C. § 1329(e)).

207. WQA § 316(a), CWA § 319(g)(1), 101 Stat. 56 (1987) (to be codified at 33 U.S.C. § 1329(g)(1)).

208. WQA § 316(a), CWA § 319(g)(2), 101 Stat. 56 (1987) (to be codified at 33 U.S.C. § 1329(g)(2)).

209. WQA § 316(a), CWA § 319(g)(1), 101 Stat. 56 (1987) (to be codified at 33 U.S.C. § 1329(g)(1)). In floor debate, Congress addressed the effect of the Water Quality Act on the Supreme Court's decision in City of Milwaukee v. Illinois, 451 U.S. 304, 11 ELR 20406 (1981), which held that the Clean Water Act established an "all encompassing program of water pollution regulation." As Rep. Hammerschmidt stated: "Today, Congress leaves this comprehensive regulatory mechanism intact and does not in any way imply that Federal common law remedies are available to supplant or supplement remedies already available under the Clean Water Act. Interstate water pollution should be — and will remain — the subject of uniform Federal law and not the conflicting laws of various States." 133 CONG. REC. H172 (daily ed. Jan. 8, 1987) See also International Paper Co. v. Ouellette, 107 S. Ct. 805, 17 ELR 20327 (Jan. 21, 1987). The Supreme Court in a 5-4 opinion written by Justice Powell held that a court considering a nuisance suit brought by a citizen of Vermont concerning pollution in Lake Champlain emanating from a New York company must apply the law of the source state and not the affected state. The Court also held that the comprehensive scheme of the CWA preempts the common law of the affected state to the extent that the law seeks to impose liability on a point source in another state.

210. WQA § 316(a), CWA § 319(h)(11), 101 Stat. 58 (1987) (to be codified at 33 U.S.C. § 1329(h)(11)).

211. WQA § 316(a), CWA § 319(k), 101 Stat. 59 (1987) (to be codified at 33 U.S.C. § 1329(k)).

212. WQA § 316(a), CWA § 319(m), 101 Stat. 59 (1987) (to codified at 33 U.S.C. § 1329(m)).

213. The overriding theme throughout the debate over assumption of state programs is that the Act be administered in such a manner that the abilities of the states to control their own permit programs will be developed and strengthened, 118 CONG. REC. 33, 76 (1972) (remarks of Rep. Wright). Congress emphasized that EPA should take a careful and "judicious" role in dealing with state permit programs. Id. (remarks of Rep. Jones).

214. CWA § 402(b), 33 U.S.C. § 1342(b).

215. As of October 16, 1986, EPA had approved the NPDES program for 37 states and territories. 51 Fed. Reg. 36808 (Oct. 16, 1986).

216. WQA § 403(a), CWA § 402(n), 101 Stat. 66 (1987) (to be codified at 33 U.S.C. § 1342(n)).

217. WQA § 403(a), CWA § 402(n)(1), 101 Stat. 66 (1987) (to be codified at 33 U.S.C. § 1342(n)(1)).

218. WQA § 403(a), CWA § 402(n)(2), 101 Stat. 66 (1987) (to be codified at 33 U.S.C. § 1342(n)(2)).

219. WQA § 403(a), CWA § 402(n)(4)(A), 101 Stat. 67 (1987) (to be codified at 33 U.S.C. § 1342(n)(4)(A)). See also CONF. REP., supra note 66, at 153.

220. Id.

221. WQA § 403(a), CWA § 402(n)(4)(B), 101 Stat. 67 (1987) (to be codified at 33 U.S.C. § 1342(n)(4)(B)).

222. WQA § 403, CWA § 402(c), 101 Stat. 67 (1987) (to be codified at 33 U.S.C. § 1342(c)).

223. Id.

224. WQA § 406(a), CWA § 405(d), 101 Stat. 71 (1987) (to be codified at 33 U.S.C. § 1345(d)).

225. Id.

226. Id.

227. Id.

228. WQA § 406(c), CWA § 405(f), 101 Stat. 72 (1987) (to be codified at 33 U.S.C. § 1345(f)).

229. Id.

230. Id.

231. CWA § 307(b)(1), 33 U.S.C. § 1317(b)(1).

232. Id.

233. 790 F.2d 289, 16 ELR 20693 (3d Cir. 1986).

234. CONF. REP., supra note 66, at 160.

235. Id.

236. Id.

237. Id.

238. Id.

239. Id.

240. Id.

241. As Senator Durenberger stated in floor debate on the Water Quality Act:

The Federal Water Pollution Control Act of 1972 required all point sources, including storm water discharges, to apply for NPDES permits within 180 days of enactment. Despite this clear directive, EPA has failed to require most storm water point sources to apply for permits which would control the pollutants in their discharge.

The conference bill therefore includes provisions which address industrial, municipal, and other storm water point sources. I participated in the development of this provision because I believe that it is critical for the Environmental Protection Agency to begin addressing this serious environmental problem.

133 CONG. REC. S752 (daily ed. Jan. 14, 1987).

242. Id. Senator Durenberger also cited to evidence of the severity of stormwater-caused pollution:

Runoff from municipal separate storm sewers, and industrial sites contains significant volumes of both toxic and conventional pollutants. EPA's national urban runoff study found 63 toxic pollutants, including 13 toxic metals, in the discharge from municipal separate storm sewers that were studied. Of these, lead, copper, and zinc were the most pervasive; EPA found these pollutants in at least 91 percent of its samples. The same study also estimated that municipal separate storm sewers discharge 10 times the total suspended solids that the Nation's secondary sewage treatment plants discharge.

Toxic and conventional storm water contaminants may adversely affect public health, harm fish and other aquatic life, and prevent or retard water quality improvements even when the best available pollution controls are installed on other point sources.

243. WQA § 405, CWA § 402(p), 101 Stat. 69 (1987) (to be codified at 33 U.S.C. § 1342(p)).

244. WQA § 405, CWA § 402(p)(2), 101 Stat. 69 (1987) (to be codified at 33 U.S.C. § 1342(p)(2)).

245. 132 CONG. REC. H10928 (daily ed. Oct. 15, 1986) (remarks of Rep. Stangeland). See also id. at H10932 (remarks of Rep. Snyder), 133 CONG. REC. H170 (daily ed. Jan. 8, 1987) (remarks of Rep. Howard).

246. WQA § 405, CWA § 402(p)(4), 101 Stat. 70 (1987) (to be codified at 33 U.S.C. § 1342(p)(4).

247. WQA § 405, CWA § 402(p)(4)(A), 101 Stat. 70 (1987) (to be codified at 33 U.S.C. § 1342(p)(4)(A).

248. Id. Senator Durenberger also indicated that "if no permit application is submitted by the deadline, or if a submitted application is denied, EPA or the state must commence immediate enforcement action against the owner of the sewer system." 133 CONG. REC. S752 (daily ed. Jan. 14, 1987).

249. WQA § 405, CWA § 402(p)(3)(B), 101 Stat. 70 (1987) (to be codified at 33 U.S.C. § 1342(p)(3)(B), (4)).

250. 133 CONG. REC. S752 (daily ed. Jan. 14, 1987) (remarks of Sen. Durenberger).

251. WQA § 405, CWA § 402(p)(3)(B), 101 Stat. 70 (1987) (to be codified at 33 U.S.C. § 1342(p)(3)(B)).

252. WQA § 405, CWA § 402(p)(4)(A), 101 Stat. 70 (1987) (to be codified at 33 U.S.C. § 1342(p)(3)(B)).

253. WQA § 405, CWA § 402(p)(3)(B), 101 Stat. 70 (1987) (to be codified at 33 U.S.C. § 1342(p)(3)(B)), CONF. REP., supra note 66, at 158.

254. WQA § 405, CWA § 402(p)(4)(B), 101 Stat. 70 (1987) (to be codified at 33 U.S.C. § 1342(p)(4)(B)). Senator Durenberger's floor comments also reflected the view that "all storm sewer systems, including those serving populations of 100,000 or less must be covered by the first round of permits where they contribute to water quality problems or contribute significantly to pollution of the waters of the United States." 133 CONG. REC. S752 (daily ed. Jan. 14, 1987) (remarks of Sen. Durenberger). See also 133 CONG. REC. H189 (daily ed. Jan. 8, 1987) (remarks of Rep. Roe).

255. Id.

256. WQA § 405, CWA § 402(p)(4)(B), 101 Stat. 70 (1987) (to be codified at 33 U.S.C. § 1342(p)(4)(B)).

257. WQA § 405, CWA § 402(p)(1), 101 Stat. 69 (1987) (to be codified at 33 U.S.C. § 1342(p)(1)).

258. 133 CONG. REC. S752 (daily ed. Jan. 14, 1987) (remarks of Sen. Durenberger).

259. Id.

260. WQA § 405, CWA § 402(p)(5), 101 Stat. 70 (1987) (to be codified at 33 U.S.C. § 1342(p)(5)).

261. Id.

262. WQA § 401, CWA § 402(l)(2), 101 Stat. 65 (1987) (to be codified at 33 U.S.C. § 1342(l)(2)).

263. Id.

264. The only specific guidance in determining "contamination by contact" is found in the conference report:

With respect to oil or grease or hazardous substances, the determination of whether stormwater is "contaminated by contact with" such materials, as established by the Administrator, shall take into consideration runoff in excess of reportable quantities under section 311 of the Clean Water Act or section 102 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, or in the case of mining operations, above natural background levels.

Conf. Rep., supra note 66, at 151.

265. WQA § 503, CWA § 503(14), 101 Stat. 75 (1987) (to be codified at 33 U.S.C. § 1342(14)); 133 CONG. REC. H211 (daily ed. Jan. 8, 1987).

266. Davidson, Little Waters: The Relationship Between Water Pollution and Agricultural Drainage, 17 ELR 10074, 10078-70 (Mar. 1987).

267. 43 Fed. Reg. 37078 (1978).

268. 49 Fed. Reg. 37998 (1984).

269. 40 C.F.R. § 122.44(1) (1986).

270. Id.

271. NRDC v. EPA, No. 80-1607 and consolidated cases (D.C. Cir.) (argued Mar. 3 & 4, 1986).

272. EPA argued in NRDC v. EPA that the antibacksliding regulation was authorized by the Clean Water Act, a position challenged by industry petitioners. The Senate and Conference Reports from the 99th Congress clearly state that § 404 of the WQA is intended to "clarify the Clean Water Act's prohibition of backsliding on effluent limitations." CONF. REP., supra note 66, at 153; see also SEN. REP. NO. 50, 99th Cong., 1st Sess. 45 (1985).

273. WQA § 404(a), CWA § 402(o)(2)(A), 101 Stat. 67 (1987) (to be codified at 33 U.S.C. § 1342(o)(2)(A)).

274. WQA § 404(a), CWA § 402(o)(2)(B)(i), 101 Stat. 68 (1987) (to be codified at 33 U.S.C. § 1342(o)(2)(B)(i)).

275. WQA § 404(a), CWA § 402(o)(2)(B)(ii), 101 Stat. 68 (1987) (to be codified at 33 U.S.C. § 1342(o)(2)(B)(ii).

276. WQA § 404(a), CWA § 402(o)(2)(C), 101 Stat. 68 (1987) (to be codified at 33 U.S.C. § 1342(o)(2)(C)).

277. WQA § 404(a), CWA § 402(o)(2)(D), 101 Stat. 68 (1987) (to be codified at 33 U.S.C. § 1342(o)(2)(D)).

278. WQA § 404(a), CWA § 402(o)(2)(E), 101 Stat. 68 (1987) (to be codified at 33 U.S.C. § 1342(o)(2)(E)).

279. WQA § 404(a), CWA § 402(o)(2)(B)(ii), 101 Stat. 68 (1987) (to be codified at 33 U.S.C. § 1342(o)(2)(B)(ii)).

280. See 40 C.F.R. § 122.44(l) (1986).

281. WQA § 404(a), CWA § 402(o)(3), 101 Stat. 68 (1987) (to be codified at 33 U.S.C. § 1342(o)(3)).

282. Id.

283. WQA § 404(b), CWA § 303(d)(4)(A), 101 Stat. 68 (1987) (to be codified at 33 U.S.C. § 1313(d)(4)(A)).

284. WQA § 404(b), CWA § 303(d)(4)(B), 101 Stat. 69 (1987) (to be codified at 33 U.S.C. § 1313(d)(4)(B)).

285. WQA § 505(a)(1), CWA § 509(b)(1), 101 Stat. 75 (1987) (to be codified at 33 U.S.C. § 1369(b)(1)).

286. WQA § 505(b), CWA § 509(b)(3)(A), 101 Stat. 75 (1987) (to be codified at 33 U.S.C. § 1369(b)(3)(A)).

287. Id.

288. WQA § 505(b), CWA § 509(b)(3)(B), 101 Stat. 76 (1987) (to be codified at 33 U.S.C. § 1369(b)(3)(B)).

289. WQA § 505(b), CWA § 509(b)(3)(A), 101 Stat. 75 (1987) (to be codified at 33 U.S.C. § 1369(b)(3)(A)).

290. WQA § 505(b), CWA § 509(b)(3)(B), 101 Stat. 76 (1987) (to be codified at 33 U.S.C. § 1369(b)(3)(B)).

291. WQA § 505(a)(2), CWA § 509(b)(1), 101 Stat. 75 (1987) (to be codified at 33 U.S.C. § 1369(b)(1)).

292. WQA § 505(b), CWA § 509(b)(3)(B), 101 Stat. 76 (1987) (to be codified at 33 U.S.C. § 1369(b)(3)(B)).

293. WQA § 505(b), (c), CWA §§ 509(b)(4), 505(d), 101 Stat. 76 (1987) (to be codified at 33 U.S.C. § 1369(b)(4), 1365(d)).

294. See Montgomery Environmental Coalition v. Costle, 646 F.2d 595, 597 (D.C. Cir. 1981) (Clean Water Act did not permit attorneys fees under § 509, which authorizes court of appeals jurisdiction for review of EPA permit decisions); NRDC v. EPA, 703 F.2d 700, 705, 13 ELR 20446 (3d Cir. 1983) (Section 509 is example of where Congress has not authorized attorney fee award even though EPA argued to the contrary).

295. CONF. REP., supra note 66, at 147.

296. WQA § 317(b), CWA § 320(k), 101 Stat. 65 (1987) (to be codified at 33 U.S.C. § 1329(k)).

297. WQA § 317(b), CWA § 320(a), 101 Stat. 61 (1987) (to be codified at 33 U.S.C. § 1329(a)).

The following estuaries are listed in CWA § 320(a)(2)(B) for priority consideration:

Long Island Sound, New York and Connecticut;

Narragansett Bay, Rhode Island;

Buzzards Bay, Massachusetts;

Puget Sound, Washington;

New York-New Jersey Harbor, New York and New Jersey;

Delaware Bay, Delaware and New Jersey;

Delaware Inland Bays, Delaware;

Albermarle Sound, North Carolina;

Sarasota Bay, Florida;

San Francisco Bay, California;

and Galveston Bay, Texas.

298. Id. The specific criteria on which the Administrator must base his decision are the ecological significance of the estuary and its contribution to fish and wildlife resources of commercial and recreational significance; the degree to which commercial, residential, recreational, or industrial activities within the estuary and its watershed have impaired or may impair the health and ecological integrity of the estuary; and the degree to which comprehensive planning management may contribute significantly to the wise use of the estuary and to its health and ecological integrity. See CONF. REP., supra note 66, at 147.

299. Id.

300. Id.

301. Id. at 148.

302. Id.

303. Id.

304. Id.

305. Id.

306. Id.

307. Id.

308. Id. at 149.

309. WQA § 317(b), CWA § 320(j)(2), 101 Stat. 64 (1987) (to be codified at 33 U.S.C. § 1329(j)(2)).

310. Id. See also CONF. REP., supra note 66, at 149.

311. WQA § 103, CWA § 117, 101 Stat. 10 (1987) (to be codified at 33 U.S.C. § 1267).

312. Id.

313. Id.

314. Id.

315. Id.

316. WQA § 104, CWA § 118, 101 Stat. 11 (1987) (to be codified at 33 U.S.C. § 1268). See also CONF. REP., supra note 66, at 95.

317. Id.

318. Id.

319. Id.

320. Id.

321. Id.

322. Id.

323. Id. at 96.

324. WQA § 506, CWA § 518, 101 Stat. 76 (1987) (to be codified at 33 U.S.C. § 1377). See also CONG. REP., supra note 66, at 165-166.

325. Id.

326. Id.

327. Id.

328. Id.

329. Id.

330. WQA § 508, MPRSA § 104(a), 101 Stat. 79 (1987) (to be codified at 33 U.S.C. 1404(A)).

331. WQA § 513, 101 Stat. 85 (1987).

332. WQA § 510, 101 Stat. 80 (1987).

17 ELR 10311 | Environmental Law Reporter | copyright © 1987 | All rights reserved