|
5 ELR 50092 | Environmental Law Reporter | copyright © 1975 | All rights reserved Land Use Controls Under the Federal Water Pollution Control Act: A Citizens Guide **The passage of the Federal Water Pollution Control Act Amendments1 in 1972 marked a turning point in the approach taken toward the problem of water pollution control in this country. Whereas past legislation had endorsed the practice of allowing certain waters to remain severely degraded to permit industrial and other uses, the 1972 amendments rejected this concept and adopted the view that "no one has the right to pollute — that pollution continues because of technological limits, not because of any inherent right to use the nation's waterways for the purpose of disposing wastes."2 The new law rejected traditional reliance on the "assimilative capacity" of our waterways and made it clear, as Senator Muskie stated on the floor of the Senate, that our "streams and rivers are no longer to be considered part of the waste treatment process."3 In implementing these new principles, the 1972 amendments recognized and came to grips with economic and technological constraints in such a way as to produce a regulatory program that is strong, but workable. Also, they recognized that if water quality is to be protected, there must be not only effective regulation of existing sources of water pollution, but also land use planning and controls to regulate the location of new sources. Before discussing in more detail the sections of the amendments which deal most directly with land use, a brief overview of this new act's most important provisions will be presented to outline the overall attack on water pollution, of which land use planning and control are an essential component part. The key goal of the 1972 amendments is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."4 Six national policies are set out as means by which this goal can be achieved. These policies are that: (1) … the discharge of pollutants into the navigable waters be eliminated by 1985; (2) … wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983; (3) … the discharge of toxic pollutants in toxic amounts be prohibited; (4) … Federal financial assistance be provided to construct publicly owned waste treatment works; (5) … areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each state; and (6) … that a major research and development effort be made to develop technology necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone, and the oceans. The regulatory and grant-in-aid programs established by the 1972 amendments to implement these new national policies are innovative and far-reaching. Primary responsibility for implementation resides with the U.S. Environmental Protection Agency (EPA), but state-federal cooperation is an essential aspect of the total effort. The regulatory program created is divided into two complementary parts as a result of the basic distinction made by the act between point sources and non-point sources of pollution. A point source is any confined, discrete conveyance such as a pipe, ditch, or even a [5 ELR 50093] floating craft.5 Typical point sources include discharges via a pipe of effluent from industrial works or municipal sewage treatment plants. Uncollected runoff from an agricultural area or a mining operation is a typical example of a non-point source of pollution.6 For point sources, the act provides the following regulatory scheme: 1. By July 1977 all dischargers other than municipal sewage treatment plants must have achieved effluent limitations based upon the "best practicable" pollution control technology currently available, and public treatment works must have achieved limitations based upon secondary treatment.7 2. By July 1983 non-municipal point sources must have the "best available technology economically achievable" in operation, and municipal sewage treatment plants must have installed the "best practicable waste treatment technology."8 3. Special effluent standards for toxic water pollutants must be based solely on environmental and safety considerations and must be met substantially before the 1977 deadline.9 4. New source performance standards based upon the "best available demonstrated control technology" must be met by all new facilities or installations.10 5. Special effluent restrictions for particular dischargers based upon existing water quality standards11 must be employed whenever it is apparent that application of the toxic and technologically-based standards above will not achieve water quality standards in a given basin by 1977.12 For 1983, a similar upgrading of the technologically-based standards must be applied to dischargers in those basins where the technological standards will not achieve the 1983 "swimmable and fishable" water quality standard.13 6. These effluent restrictions must be applied to point sources through a permit program — the National Pollutant Discharge Elimination System (NPDES) — administered either by EPA or the states.14 The 1972 amendments contain strong monitoring and enforcement provisions, including provisions for citizen suits, for ensuring that permit conditions are actually met.15 The act's regulatory program for controlling non-point source pollution is set out primarily in § 208.16 The provisions of this section, the land use implications of which will be discussed in more detail below, must be carried out either by designated local area-wide agencies or by the state. Comprehensive plans must be prepared which provide, among other things, for (1) the control of non-point source pollution, (2) the protection of groundwaters, and (3) the regulation of the location and construction of any facilities which may result in pollution. These plans must be submitted to the administrator of EPA for his approval, and, once approved, must be implemented by appropriate regulatory agencies. The overall purpose of Section 208 planning is to ensure that the act's goal of "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water" is achieved by 1983. Thus, Section 208 plans should be submitted to EPA in time for their full impact to be felt by the 1983 deadline. Along with this regulatory program, the act also establishes a grant-in-aid and planning program for the construction of municipal sewage treatment plants.17 and the requirement that each state develop a continuing planning process.18 Both of these aspects of the act are discussed more fully below. EPA's implementation of the 1972 amendments has brought a number of disappointments. The following actions of the agency have all been met by lawsuits brought by the Natural Resources Defense Council and other environmental organizations: 1. Failure, because of stern directives from the Office of Management and Budget, to allot half of the money authorized for the construction of municipal sewage treatment plants (because of this impoundment, a substantial number of municipalities will not meet the 1977 requirements of the act applicable to sewage treatment works);19 2. Failure to meet more than a score of rulemaking deadlines set by the act, thus prompting litigation which resulted in the establishment of substitute or replacement dates for the statutory deadlines missed;20 3. Failure to include on its list of toxic pollutants many metals and other substances which are toxic to humans or aquatic organisms (in fact, not including on this list most of the substances regulated because of their toxicity in the 1962 Public Health Service drinking water standards);21 and 4. Exclusion of a wide range of non-industrial point sources from the National Pollutant Discharge Elimination System (NPDES) permit program, which is intended by statute to regulate all point sources.22 In large part these shortcomings can be attributed to a lack of adequate resources. Sent out by Congress to do battle with almost the entirety of American industry and agriculture, as well as with other federal agencies which speak for powerful commercial interests, EPA has been armed in a woefully inadequate manner. This weakness has often led to overcautious, hesitant, and intimidated behavior by EPA in implementing the act. It is important that citizens who are concerned with the problems of water pollution and with the land use considerations which cannot be separated from these problems recognize both (1) that Congress has passed strong legislation that mandates the cleaning-up of the country's waters and (2) that implementation of this legislation often falls short of the legal requirements established. In whatever ways possible, citizens should support the provision of adequate resources for the federal EPA and press for conscientious and legally responsible implementation of environmental legislation by this agency. Land Use Planning Provisions of the 1972 Amendments At least six sections of the 1972 amendments are concerned with planning.23 Of these, Section 208 is by far the most important, in large measure because it provides a basis for regulating non-point sources of pollution. As discussed above, a typical example of a non-point source is general runoff from agricultural or mining operations. The water pollution caused by such non-point sources is extremely serious. In fact, it has been estimated that runoff accounts for perhaps half of our total water pollution problem.24 Consequently, to achieve the goals established by the amendments, non-point source controls must be instituted; land uses which may result in non-point source pollution must be carefully planned. Section 208 requires that such land use planning and regulation be instituted throughout the entire nation. In addition to its vital role with respect to non-point sources, Section 208 also strenghtens the act's control over point source pollution. Section 208 plans must establish a regulatory program to control the location, modification, and construction of all facilities which may discharge pollutants, and they must also contain long-term specifications for the construction and use of municipal sewage treatment plants. The requirements of § 208 apply throughout each state, but they may be carried out either by local area-wide agencies or by the state. The act provides that the governor of each state may designate particular areas which have severe water quality control problems for area-wide planning.25 In all areas of the state which are not so designated, the state itself is responsible for § 208 planning. Special federal funds are made available for planning under Section 208.26 If a governor chooses not to designate particular areas for area-wide planning, he has two other alternative courses of action: he may either remain silent, thus allowing local areas to designate themselves under special provisions of the act, or he may "non-designate" certain areas or even the entire state, thereby precluding both local self-designation and special federal funding for intensive area-wide planning under Section 208. The required contents of Section 208 plans are specifically set forth in the act. The following are some of the most important requirements: 1. The plan must identify waste treatment needs, both municipal and industrial, for the next twenty years and must include an analysis of alternative waste treatment systems. 2. It must provide for the establishment of a program to regulate the location, modification, and construction of all polluting facilities (whether involving point or non-point source pollution). 3. It must establish a program to identify and control non-point sources of pollution, including sources related to agricultural, silvicultural, mining, and construction activities. Land use requirements must be developed to control this non-point source pollution. 4. It must develop a process to identify and control salt water intrusion into rivers, lakes, and estuaries which results from any reduction of fresh water flow. 5. It must establish a process to control the disposal of pollutants on land or in subsurface excavations. 6. It must identify the agencies that will implement the 208 plan. Plans meeting these requirements must be prepared and approved before the middle of 1977 under the time frame provided by the act. It is imperative that § 208 plans be ready by then so that they can be implemented in the phase II period of the act, the period from 1977 to 1983, and their full impact can be felt by the 1983 deadline for achieving the "fishable and swimmable" water quality standard. Once a 208 plan has been approved by EPA and the agency responsible for its implementation has been designated by the governor, all grants for the construction of municipal sewage treatment plants27 must be made to the designated agency and must be in conformity with the approved plan. Also, no permit may be issued under the National Pollutant Discharge Elimination System (NPDES)28 if the permit conflicts with an approved 208 plan. Thus, a 208 plan must be implemented; once approved, it cannot be left on the shelf to gather dust. In May 1974 EPA released two documents implementing portions of Section 208. (1) It promulgated regulations governing federal grants to designated area-wide agencies.29 These regulations further defined what the plans developed by these agencies must include. (2) It published proposed guidelines to aid area-wide agencies in actually carrying out their planning responsibilities.30 In general, EPA's implementation of § 208 has been characterized by serious shortcomings. Perhaps the most glaring of these has been the agency's failure to give direction to the states regarding planning in non-designated areas, thus giving the misleading impression that 208 planning is unique to designated areas. Since fewer than thirty areas (almost all of them urban-industrial areas) have been designated, it is clear that most of the non-point source pollution in the nation will remain unabated unless Section 208 is also implemented in non-designated areas. Accordingly, the Natural Resources Defense Council (NRDC) filed suit in October 1974 to compel EPA to carry out its mandatory responsibility to implement Section 208 planning on a state-wide basis and to do so on a timely basis. 31 Since this suit was filed, EPA has indicated informally to NRDC that it acknowledges the legal requirement for state-wide Section 208 planning. However, the critical issues of the extent and timing of this planning remain unresolved. EPA's unsatisfactory leadership with respect to Section 208 is also apparent in the pace at which the agency is implementing this section in designated areas. The timetable set forth by Congress called for area-wide designations or non-designations by July 1973. However, EPA produced regulations for this process nine months late32 and designations were not made until after March 1974. Thus, the development of 208 plans in designated areas is already running badly behind schedule, and EPA is showing few signs of more aggressive implementation. The timing of 208 planning is especially important because the provision for full federal funding for area-wide planning ends on June 31, 1975. Under the timetable established by Congress in Section 208, full funding would have carried the planning agencies in designated areas through two years of the three year planning process. Because of EPA sluggishness, the funding for the handful of areas already designated will decrease after only one year, just as the agencies are getting underway. Funding after June 30, 1975, will be less than the 75 percent maximum. Just how much less remains to be seen, but past Administration [5 ELR 50096] policy on pollution control expenditures is far from reassuring. One approach under discussion within EPA is that of implementing state-wide 208 requirements through the basin plans it is requiring states to prepare as part of the "continuing planning process" mandated by Section 303(e) of the act. These basin plans are essentially management documents, spelling out what needs to be done regarding water pollution problems of the basins. They do not, however, provide for any major new regulatory or source control programs such as those required by Section 208. The EPA guidelines on basin planning do require analysis and description of non-point source problems and possible remedies, but no provision is made for the development of the regulatory programs mandated by Section 208.33 Thus the basin planning program as developed to date has not established a base for adequate state-wide 208 planning. As will be discussed below under "Citizen Action," the 1972 amendments include strong provisions for public participation in water pollution control. If these provisions are to be meaningful as far as Section 208 is concerned, it is essential that a 208 plan be drawn up as a discrete document (or at least as a separate, discrete part of a larger plan) which is made available in draft form for public review and participation at an early stage of the planning process. If, for example, in the case of state-wide 208 planning, different aspects of required programs were scattered through a basin plan, it would be very difficult for citizens to assess whether the state was adequately meeting the statutory requirements of 208 and was responsibly addressing the state's problems. The non-degradation principle in water quality planning is analogous to the principles of non-deterioration of air quality. It holds that all water bodies whose actual water quality is better than that required by water quality standards should be protected from degradation. Without a non-degradation principle, such waters could be "legally" degraded down to the standards. Protection in these instances is very closely tied to land use regulation, since degradation can result from the location of new sources or changes in existing streamside land use patterns. If clean water is to be preserved, adjacent land uses must be regulated. It has been established through the courts that the Clean Air Act of 1970 mandates the establishment by EPA of a non-degradation standard to protect clean air areas.34 The 1972 amendments to the Federal Water Pollution Control Act also mandate a non-degradation standard for the country's waters. In view of the similarities both in language and in legislative history between these amendments and the Clean Air Act, it might be expected that EPA would have come forward with a major program to prohibit the deterioration of higher quality waters. Unfortunately, this has not been the case. As of December 1974 all that EPA has done is to state that all basin plans must incorporate any existing state anti-degradation clauses — which are notoriously weak. The necessity of establishing a program to prevent significant deterioration has been under discussion within EPA, but no action has been taken nor have any proposals been officially published. Under such circumstances, the door is left open for degradation of higher quality waters. The problem of non-degradation should not be confused with other aspects of water quality protection. For example, the establishment and enforcement of standards, as well as the protection of particular high quality streams, are separate issues from the question of what happens to all waters that have water quality that is better than standards. In an effort to spur the adoption of a strong non-degradation policy by EPA, the Project on Clean Water of the Natural Resources Defense Council (NRDC) developed a policy on non-degradation of water quality which it recommended to EPA in 1973. The following is a statement of that policy: Policy on Non-degradation of Water Quality The new Federal Water Pollution Control Act of 1972 requires the Environmental Protection Agency to develop a program to protect high-quality waters and prevent deterioration in existing water quality. To assist EPA in carrying out this responsibility, NRDC suggests the following policies be followed regarding non-degradation of water quality An effective program for preventing significant degradation of water quality should include (1) specific substantive standards defining significant degradation and (2) effective procedural mechanisms for enforcing these standards. Substantive Standards. After public hearings, all water segments in the state should be divided into two categories. Category I would be segments which should be kept in their present condition because they constitute an outstanding natural resource, e.g., rivers in parks and refuges and other waters of great recreational or ecological significance. No degradation in these segments would be allowed. Category II would be all other segments. Water quality here would be allowed to degrade by a small predetermined percentage. The percentage would vary depending on the water quality parameter but in no case would the percentage be large enough to allow the waters to degrade significantly. Moreover, if existing water quality meets the 1983 interim standard expressed in Sections 101(a)(2) and 302 of the Federal Water Pollution Control Act, the quality should in no case fall below that standard. The water quality required by 1983 is that "which provides for the protection and propagation of fish, shellfish and wildlife and which provides for recreation in and on the water." Section 101(a)(2). The baseline water quality against which to measure degradation should be that existing near the end of 1972 when the Act was passed. If data is sparse, the 1972 water quality should be estimated. Procedural Requirements. Non-degradation programs should be implemented immediately in order to play a part in the issuance of the first round of permits under the Act. Permits for new sources should be issued only upon a showing by the discharger that significant degradation will not result. The non-degradation program would be primarily a state program, but it would be EPA's responsibility to review the classification of waters into CategoriesI and II, to establish national standards defining significant degradation, and to establish general procedures to ensure that these standards are enforced. 3. Construction of Municipal Sewage Treatment Plants Section 201 authorizes the administrator of EPA to make grants for the planning and construction of publicly owned sewage treatment plants. While the purpose of Section 201 is to improve water quality, construction grants awarded under this section can have enormous implications for land development, since in large measure the size and location of sewage treatment facilities, along with the size and placement of connecting interceptor sewer lines, determine the extent and shape of community growth. Past experience has indicated that where facilities are built for a population considerably larger than that existing in an area, growth to the capacity of the system is generated. Thus, great care should be taken before new sewerage facilities are constructed to access their land use impacts, to consider alternative dimensions, and to provide for needed land use planning and regulation. Unfortunately, it appears that very little attention has been paid to the land use implications of Section 201 grants. In 1974 a study of the impact of sewerage construction grants on residential land use was published by the Council on Environmental Quality (CEQ).35 This study, which analyzed fifty-two EPA grants for sewerage construction,36 showed that the grants had provided for substantial excess sewerage capacity, and that either the land use impacts of the grants had not been assessed or negative secondary effects of residential development had not been considered. In eight detailed case studies which were prepared on areas as diverse as Tulsa, Oklahoma, and Ocean County, New Jersey, urban planners and local officials expressed the belief that nothing could halt development in their respective areas and that sewage treatment systems had to be provided. In fact, according to the CEQ study, procedures used in the physical design of interceptors, local planning and review procedures for project plans, and methods of project financing may encourage the "inevitability" of development. With regard to financing, the summary of the report states that: Study findings indicate that current financing procedures — on both the local and federal level — may encourage the construction of sewerage systems tailored to the needs of future developers rather than the control of pollution problems. For example, in communities which intend to finance the local share of project costs by assessing connection fees on new development, pressure is created to encourage rapid growth so that the project will be financially viable. Further, since the federal program is viewed as a one-time-only opportunity, communities are encouraged to seek as much excess capacity as possible. One of the most disturbing findings of the CEQ study is that over half of the land to be served by the projects studied is presently vacant. Thus it appears that many localities are seeking not only to improve water quality, but also to obtain a federal subsidy for suburban growth on vacant land. This appears to run counter to the intent of the act which requires the EPA administrator to encourage sewerage schemes which combine open space and recreational considerations with waste management.37 The 1972 amendments to the Federal Water Pollution Control Act provide some safeguards for the construction grant program to assure that it is focused on improving water quality, and that the land use effects of the program are assessed adequately. Unfortunately, these safeguards are either not working properly, or their implementation is too new to be evaluated. First, before a treatment plant or sewerage system is constructed, federal funding is available for the development of a facilities plan that assesses the effects of the proposed construction.38 However, many projects which EPA has considered to be beyond the stage of facilities planning have been funded without such a plan. Even where the facility planning process is carried out, moreover, there is no assurance that environmental effects, including land use impacts, are assessed [5 ELR 50098] adequately, since EPA does not appear to be implementing agressively the regulations governing this planning. In addition, the act requires integration of Section 201 grants with the planning provisions of Sections 208 and 303. As has been pointed out above, once a Section 208 plan has been approved by EPA, all grants for the construction of sewage treatment works must be in conformity with this plan. This provision reflects Congress' intent that the construction of waste treatment facilities be coordinated with the land use planning and regulation required under Section 208. However, this requirement does not affect construction grants that are made before an approved 208 plan is in existence, and, as has been discussed, EPA's implementation of Section 208 has proceeded at a very slow pace. Grants for sewerage construction must also be in conformity with state planning under Section 303, through which state-wide construction priorities must be established. Unfortunately, the continuing planning process program under Section 303 has just gotten underway, and as yet has had little effect. Another safeguard is the National Environmental Policy Act (NEPA).39 Although EPA is excused by the act from preparing environmental impact statements under NEPA for permits (except those for new sources) granted under the National Pollutant Discharge Elimination System (NPDES) established by Section 402, EPA is not excused from preparing such impact statements in the construction grant area. Initially, EPA was not preparing NEPA statements for construction grants, but under pressure from Congress and from citizens in particular areas where construction of sewerage facilities was proposed, the agency has altered its position somewhat. As of December 1974, EPA had prepared environmental impact statements for about 65 out of a total of approximately 4,000 project grants. The prospects for fuller environmental review by EPA in the coming year are no more promising. For fiscal 1976, EPA has set as a goal, preparation of environmental impact statements for five percent of the construction grants awarded. In general, the movement toward the preparation of NEPA statements, which must consider alternative possibilities, land use implications, and other environmental consequences, exists in tension with EPA's desire to expedite the granting of funds available for waste treatment facilities. The latter motivation has in a number of cases led EPS to overlook important land use considerations, while environmental impact statements have often been prepared on a "squeaky wheel" basis. The present administrative trend in EPA suggests that environmental impact statements are more likely to be filed for large projects. EPA officials believe that while the percentage of impact statements prepared is small compared to the large number of grants, the statements cover a larger percentage of the total number of grant dollars. In essence, then, the sewerage construction grant program established under Section 201 is extremely important in terms of land use. Concerned citizens should be aware of its potential impact on their communities and ready to monitor its implementation. Another important provision of the 1972 amendments with which citizens who are concerned about land use problems should be familiar is Section 402(h),40 which authorizes EPA to stop any new sewer hookups where treatment plants are in violation of an NPDES permit condition. EPA actually has the right to seek a court order prohibiting such connections, and should be pressed to do so, if necessary. Further, on January 15, 1974, EPA released a policy memorandum authorizing the inclusion of special growth related planning conditions in NPDES permits issued for municipal sewerage facilities that are threatened by rapid growth.41 A municipality seeking an NPDES permit for such a facility can be required, as an enforcement permit condition, to anticipate and regulate new sewer hookups which would overload the treatment plant. Although EPA permit writers are not required to impose such conditions, they are required to consider doing so when dealing with sewerage systems which are already utilized to 85 percent of capacity and are experiencing or anticipate growth at three percent or more per year. Unfortunately, EPA permit writers have largely ignored this policy memorandum. A municipal permit that contains a growth related condition is a rarity. Army Corps of Engineers Permits and the Federal Water Pollution Control Act Amendments of 1972 Prior to the passage of the 1972 amendments to the Federal Water Pollution Control Act, it was unlawful to put any refuse matter (except liquid municipal sewage effluent and runoff from streets) into any navigable water or tributary thereof without a permit from the Army Corps of Engineers. This permit program, which was authorized under the so-called "Refuse Act,"42 was replaced by the permit programs established under Sections 402 and 404 of the 1972 amendments. Although the Refuse Act itself is still on the books, it has been almost completely superseded by the Federal Water Pollution Control Act, as amended in 1972. The Army Corps of Engineers is still responsible under legislation enacted prior to the 1972 amendments for issuing permits for dredging and filling operations and construction activities in navigable waters. The [5 ELR 50099] following activities, variations of which are often involved in land development projects, are unlawful without a permit from the Corps of Engineers: 1. Construction of a dam, dike, bridge, or causeway over or in any navigable water.43 2. Excavation, filling, or in any manner modifying any lake or channel of any navigable water.44 It should be noted that the Army Corps of Engineers is subject to the requirement of the National Environmental Policy Act45 that every federal agency must prepare an environmental impact statement before taking any action that significantly affects the environment. Thus, for example, before issuing a permit for the construction of a dam, the Corps of Engineers must prepare an environmental impact statement which must be available for public comment. Section 40446 of the 1972 amendments gave new responsibilities to the Army Corps of Engineers in the regulation of dredging and filling operations. It established that no dredged or fill material can be discharged into the waters of the United States unless a Section 404 permit has been obtained from the Corps of Engineers. While earlier statutory provisions pertaining to dredging or filling in navigable waters focused on the possible interference of such operations with navigation, the focus of Section 404 is on the discharge of materials into receiving waters or surrounding wetlands and on the biological effects of such discharges. In some respects the new Section 404 permits overlap dredge and fill permits required by earlier legislation, but they differ in their prime concern with water quality and their applicability to wetlands. Thus the Section 404 program does not supplant the older permit program, but is in addition to it. A very significant difference between the older Corps of Engineers permit programs and the provisions of Section 404 is that the former are subject to traditional concepts of navigability, while the latter is not. Some explanation is needed to clarify this distinction. In a number of respects the concept of navigability that has been developed over the years by the Corps of Engineers is quite broad.47 For example, the fact that in the past hunters and trappers who were engaged in interstate or foreign commerce used canoes on a waterway would be sufficient to establish it as navigable water. Also, once a determination of navigability is made, it is not extinguished by later actions or events which impede or destroy navigable capacity. Further, a waterway may be deemed navigable water even if it possesses falls, rapids, sand bars, or similar obstructions. Nevertheless, the principle of navigability has always been central to the Corps of Engineers' work. One very important limitation that has resulted from this is the restriction of Corps jurisdiction in tidal areas to below mean high tide. In other cases, feeder streams and waters have been excluded from Corps jurisdiction because they were not classified as navigable. The 1972 amendments go beyond traditional concepts of navigability by very broadly defining "navigable waters" as "the waters of the United States, including the territorial seas."48 In commenting on the far-reaching significance of this new definition, an EPA legal memorandum points out that it "eliminates the requirement of navigability," leaving only the requirement that the pollution of waters covered by the act be capable of affecting interstate commerce.49 With respect to the latter, the memorandum states that EPA will proceed on the assumption that federal jurisdiction extends to point source discharges not only into interstate waters and their tributaries, but also into intrastate waters from which fish or shellfish are taken for sale in interstate commerce, intrastate waters used by industries engaged in interstate commerce, and intrastate waters utilized by interstate travelers for recreational or other purposes. Those aspects of EPA's approach which have been reviewed by the courts have been sustained. Two United States district courts and a United States court of appeals have now held that federal jurisdiction under the Federal Water Pollution Control Act Amendments of 1972 is not limited to traditional concepts of navigability.50 In so ruling, the courts have pointed out the overall dangers posed by water pollution to interstate commerce, as well as to the general health and welfare. They have documented Congress' resolve to control this problem, holding in one case that "Congress' clear intention as revealed in the Act itself was to effect marked improvement in the quality of the total water resources of the United States, regardless of whether that water was at the point of pollution a part of a navigable stream."51 Thus the courts have held that "the waters of the United States" include not only navigable waters and their tributaries, but also waters which feed into them, including small streams, man-made canals, and the [5 ELR 50100] waters of wetland areas. In a case dealing with the filling of wetland in Florida, the court held that "[t]the defendants' filling activities on land periodically inundated by tidal waters constituted discharges entering 'waters of the United States' …" and thus were subject to the permit requirements of the 1972 amendments.52 Unfortunately, the Army Corps of Engineers has refused to incorporate the broader federal jurisdiction of the 1972 amendments into its administration of the Section 404 permit program. Relying on historical concepts of navigability, the Corps stated in the regulations for Section 404 which it promulgated in April 1974 that it does not have authority to regulate activities above mean high tide.53 The environmental implications of this position are very serious, since it excludes from regulation important coastal and estuarine wetlands which are flooded periodically but lie above mean high tide. Further, the Corps of Engineers has refused to honor the court decisions which have ruled that federal jurisdiction under the 1972 amendments is not limited by traditional concepts of navigability (which include the mean high tide demarcation). It has taken this stand in spite of the fact that two of these court decisions specifically quoted the following statement made in Congress just before the amendments were passed: "No longer are the old, narrow definitions of navigability, as determined by the Corps of Engineers, going to govern matters covered by this bill."54 In March 1975 the Natural Resources Defense Council, along with the National Wildlife Federation, obtained a court ruling which held that the Corps of Engineers' regulations which cover the Section 404 permit program are unlawfully restrictive,55 and required the Corps to exercise its jurisdiction over dredging and filling operations in the waters of the United States, which include all wetland areas. Citizens who want to work to realize the potential which the Federal Water Pollution Control Act Amendments of 1972 have with respect to land use planning and regulation could profitably focus their attention in the following areas: 1. It is essential that states and loca area-wide agencies develop adequate plans under Section 208 of the 1972 amendments by the 1977 deadline.These plans must include means of identifying and controlling non-point sources of pollution and must provide for regulation of the location, modification, and construction of all sources of pollution. Citizens should press for prompt and conscientious development of planning under this vital section of the act. EPA must also be strenuously pressed to provide needed guidelines to the states. Making use of the general provisions for public participation under the act, which are discussed below, citizens should see that public involvement and contributions to the 208 planning process are maximized. Citizens should recognize that the task facing the agency responsible for 208 planning will be a politically difficult one. The land use implications of an effective 208 plan may be distasteful to land developers and local governments. Constant public scrutiny will be required to minimize the political pressures that will be brought to bear during the development of the plan. As important as the development of an effective 208 plan is the establishment of the necessary means for effective implementation of the plan. This may well mean that new legislation must be passed to give the agency designated to carry out the plan the legal authority to do so. Public support for the passage of such measures will be needed. 2. A strong policy of non-degradation must be established by EPA to assure protection of high quality waters. Such a policy is mandated by the act and must be instituted and implemented, if high quality waters are to be preserved from environmentally disastrous deterioration down to existing water quality standards. Although leadership by EPA in this problem is both required and necessary to establish protection on a nation-wide basis, states should also be urged to take action to avert degradation of water quality. 3. Careful planning needs to be carried out in connection with the construction or expansion of sewage treatment facilities. Citizens should be aware of the profound effect additional sewerage capacity has on growth, should make certain that the dimensions of proposed facilities are carefully scrutinized, and should take action to see that necessary land use planning provisions and regulations are established when new plants are built. Citizens should demand that an environmental impact statement be prepared by EPA before funds are granted to build a new waste treatment plant. This impact statement must consider the land use implications of the new construction, as well as other environmental consequences. Citizens should study the draft impact statement and prepare effective comments. Citizens should be aware that EPA is authorized by Section 402(h) of the 1972 amendments to stop additional hookups to a sewage treatment plant that is violating a condition of its NPDES permit to discharge pollutants into navigable waters. Such proposed hookups should be reported to EPA and pressure should be brought to bear to assure that EPA takes action to prevent any further overloading of the plant in question. * * * It is important that citizens fully appreciate that public participation in water pollution control is required by the 1972 amendments: Public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator [of EPA] or any State under this Act shall be provided for, encouraged, and assisted by the Administrator and the States.56 Regulations spelling out particular requirements for public participation have been promulgated by EPA and should be carefully read by concerned citizens.57 These regulations establish that although primary responsibility for decision-making regarding water quality is vested by law in public agencies, "active public involvement in and scrutiny of" governmental decision-making is desirable. It is required that each agency carrying out activities under the act conduct a continuing program for public involvement. Among other things, such a program must include: 1. Provision of technical information to interested persons and organizations; 2. Public access to agency records; 3. Procedures for receiving information and evidence submitted by citizens; and 4. Invitation, reception, and consideration of written comments from interested persons or organizations regarding proposed rule making. In addition, whenever applications are made for certain kinds of grants (including construction grants under Section 201 and planning grants under Section 208) a "summary of public participation" must be included. This summary must "describe the measures taken by the agency to provide for, encourage, and assist public participation in relation to the matter; the public response to such measures; and the disposition of significant points raised." In the Federal Water Pollution Control Act Amendments of 1972 Congress mandated a clean-up of the Nation's waters. The means chosen to achieve this goal included many innovative devices such as an expansion of the traditional concept of navigability, more extensive federal jurisdiction over dredge and fill activities, grants for the construction of publicly owned sewage treatment facilities, and preparation of comprehensive area-wide plans relating to the control of non-point source pollution, the protection of ground waters and the regulation of the location and construction of any facilities which may result in pollution. The land use implications of these innovations and of other provisions of the statute are profound, but thus far EPA and the Corps of Engineers' implementation of these portions of the law has left much to be desired. The fact that the Amendments require citizen participation provides citizens concerned with land use problems and planning the means to push EPA and the Corps toward a more vigorous assumption of their statutory responsibilities. As is demonstrated by the law's citizen suit provision, Congress intended that the public should watch the watchdog, EPA, to make certain that this innovative statutory scheme for water pollution control does not founder on the shoals of bureaucratic inertia. The citizen's role is therefore central to the successful implementation of the law and the consequent protection of our water and land. Citizens should seek to take full advantage of the rights granted to them under the Federal Water Pollution Control Act Amendments of 1972 in their attempts to find solutions for both water pollution and land use problems. ** The four co-authors are staff members of the Natural Resources Defense Council, Inc. 1. 33 U.S.C. § 1251 et seq. These amendments were passed by Congress on October 18, 1972, as Public Law 92-500. The citations to particular sections of the act (i.e. the Federal Water Pollution Control Act Amendments of 1972) in the text of this chapter refer to the section numbers of Public Law 92-500, ELR 41101-41129. This discussion in the first part of this chapter draws heavily from an article by Natural Resources Defense Council attorney J. G. Speth, The 1972 Federal Water Pollution Control Ct: Problems and Prospects After One Year, Natural Resources Lawyer, VII, no. 2 (Spring 1974): 249-256. 2. U.S. Senate, Committee on Public Works, A Legislative History of the Federal Water Pollution Control Act Amendments of 1972, 93rd Cong., 1st Sess., 1973, p. 1460 (hereafter Legislative History). 3. Legislative History, p. 165. Form an informative discussion of these concepts, see Walter E. Westman, Some Basic Issues in Water Pollution Control Legislation, American Scientist 60 (1972): 767. 4. § 101(a); 33 U.S.C. § 1251(a). 5. § 502(14); 33 U.S.C. § 1362(14). 6. There is a gray area between clear examples of point sources and non-point sources. Determinations of whether particular types of "conveyances" are to be considered point sources or non-point sources can be expected to come both from administrative clarifications by EPA and from litigation. 7. § 301(b)(1); 33 U.S.C. § 1311(b)(1). 8. § 301(b)(2); 33 U.S.C. § 1311(b)(2). 9. § 307(a); 33 U.S.C. § 1317(a). 10. § 306; 33 U.S.C. § 1316. 11. The act continues the federally approved interstate water quality standards adopted by the states pursuant to 1965 water quality legislation and requires the states to adopt standards for intrastate waters which also must be federally approved. All standards must be reviewed and upgraded at least once every three years. The first major revision of water quality standards, which should take place primarily in 1976, must implement the act's objective of maintaining the natural integrity of high quality waters and thus must require adoption by the states of strong non-degradation provisions. 12. §§ 301(b)(1) and 303(d); 33 U.S.C. §§ 1311(b)(1) and 1313(d). 13. § 302; 33 U.S.C. § 1312. 14. § 402; 33 U.S.C. § 1342. 15. §§ 308, 309, and 505; 33 U.S.C. §§ 1318, 1319, and 1365. 16. 33 U.S.C. § 1288. 17. §§ 201-207; 33 U.S.C. §§ 1281-1287. 18. § 303(e); 33 U.S.C. § 1313(e). 19. This impoundment has since been overturned by the Supreme Court in Train v. City of New York, 5 ELR 20162 (U.S. Feb. 18, 1975). 20. The Natural Resources Defense Council has brought two suits to enforce the deadlines established by the act: Natural Resources Defense Council v. Fri, Civil No. 849-73 (D.D.C. Consent Decree, 1973) and Natural Resources Defense Council v. Train, __ F. Supp. __. 4 ELR 20102, 6 ERC 1033 (D.D.C. 1973), affirmed, __ F.2d __, 5 ELR 20046, 7 ERC 1209 (D.C. Cir. 1974). 21. The Natural Resources Defense Council's suit to require that additional substances be added to the toxic pollutants list was dismissed by the District Court, __ F. Supp. __, 6 ERC 1702 (D.D.C. 1974), but is now pending on appeal. Natural Resources Defense Council v. Train, Civil No. 74-1538 (D.C. Cir. 1974). 22. In March 1975, the Natural Resources Defense Council won its suit to require the NPDES permit program to cover all point sources. Natural Resources Defense Council v. Quarles, Civil No. 1629-73 (D.D.C. 1975). 23. §§ 102, 106, 201, 208, 209, and 303; 33 U.S.C. §§ 1252, 1256, 1281, 1288, 1289, and 1313. 24. The contribution of pollutants from non-point agricultural sources (such as fertilizer and pesticide runoff) has been recognized for years. See, for example, Council on Environmental Quality, Environmental Quality: The Third Annual Report of the Council on Environmental Quality, (1974), pp.11-16. Only recently, however, has attention been focused on runoff from city streets. A recent report prepared for the Council on Environmental Quality concluded that only about 20 to 60 percent of the total annual oxygen-demanding materials entering receiving waters from a city come from the sewage treatment plant; the remainder comes from runoff and discharges into storm sewers which do not feed into sewage treatment plants. During a single storm event, 94 to 99 percent of the oxygen-demanding materials entering receiving waters is from runoff and sewer overflows. The street runoff from a typical moderate size city, moreover, will contain up to 250,000 pounds of lead and 30,000 pounds of mercury per year. See Enviro Control, Inc., Total Urban Water Pollution Loads: The Impact of Storm Water (1974). Available from National Technical Information Service (NTIS No. 231 730), 5285 Port Royal Road, Springfield, Va. 22151. 25. Regulations governing identification of areas with water quality control problems and designation of responsible area-wide planning agencies were released by EPA in September 1973. 38 Fed Reg. 25681 (September 13, 1973); 40 CFR Part 126. 26. See § 208(f)(2); 33 U.S.C. § 1288(f)(2).Under this provisions, grants covering 100 percent of the costs of developing and carrying out 208 planning are available through June 30, 1975, and grants for up to 75 percent of costs are available thereafter. 27. Under § 201(g)(1) of the act; 33 U.S.C. § 1281(g)(1). 28. Established under § 402 of the act; 33 U.S.C. § 1342. 29. 39 Fed. Reg. 17201 (May 13, 1974); 40 CFR § 35.1050 et seq. 30. U.S. Environmental Protection Agency, Draft Guidelines for Areawide Waste Treatment Management, May 1974. This document is available from EPA's Office of Public Affairs. 31. Complaint, Natural Resources Defense Council v. Environmental Protection Agency, Civil No. 74-1485 (D.D.C. 1974). 32. 38 Fed. Reg. 25681 (September 14, 1973); 40 CFR Part 126. 33. See 39 Fed. Reg. 19634 (June 3, 1974); 40 CFR §§ 130.23 and 131.306. 34. Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 2 ELR 20262 (D.D.C. 1972), aff'd per curiam, 2 ELR 20656, 4 ERC 1815 (D.C. Cir. 1972), aff'd by an equally divided Court sub nom. Fri v. Sierra Club, 412 U.S. 541, 3 ELR 20624, 5 ERC 1417 (1973). 35. Council on Environmental Quality, Interceptor Sewers and Suburban Sprawl, September 10, 1974. This two-volume study was prepared by Urban Systems Research and Engineering, Inc., and is available in paperback and microfiche form from: Ordering Department, National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, Virginia 22151. Volume I (Analysis; NTIS #PB236477) costs $7.00 in paperback and $2.25 in microfiche; volume II (Case Studies; NTIS § PB236871) is $8.70 in paperback and $2.25 in microfiche. The first section of volume I is a summary of the entire study. 36. The fifty-two grants studied were chosen from a list of 160 projects (in three EPA regions) that had reached the stage of construction. The grants selected were those which appeared most likely to have been used to finance excess sewer capacity. As a result of errors in original estimates of excess capacity, however, the fifty-two projects studied now appear to be more representative of all EPA sewerage construction grants then they were at first thought to be. 37. § 201(f); 33 U.S.C. § 1281(f). 38. 39 Fed. Reg. 5252 (February 11, 1974); 40 CFR § 35.900 et seq. 39. 42 U.S.C. § 4321 et seq. 40. 33 U.S.C. § 1342(h). 41. U.S. Environmental Protection Agency, "Guidance for Conditioning of Municipal Permits in High-Growth Areas," January 15, 1974. This memorandum is public information and may be obtained from EPA. 42. 33 U.S.C. § 407. 43. 33 U.S.C. § 401. 44. 33 U.S.C. § 403. 45. 42 U.S.C. § 4321 et seq. 46. 33 U.S.C. § 1344. 47. The regulation of the Army Corps of Engineers which discusses the meaning of "navigable waters" most fully can be found at 33 CFR § 209.260. 48. § 502(7); 33 U.S.C. § 1362(7). 49. Environment Reporter: Current Developments 3:41 (February 9, 1973): 1240. Published by the Bureau of National Affairs, Washington, D.C. 20037. 50. United States v. American Beef Packers, Inc., __ F. Supp. __, Crim. No. 74-0-30 (D. Neb. 1974); United States v. Holland, 373 F. Supp. 665, 4 ELR 20710, 6 ERC 1388 (M.D. Fla. 1974); United States v. Ashland Oil & Transportation Co., __ F.2d __, 4 ELR 20784, 7 ERC 1114 (6th Cir. 1974). 51. United States v. Ashland Oil & Transportation Co., 4 ELR at 20787, 7 ERC at 1118. 52. United States v. Holland, 4 ELR at 20715, 6 ERC at 1395. 53. See 39 Fed. Reg. 12115 (April 3, 1974); 33 CFR § 209.120. 54. 118 Cong. Rec. 33756-57 (1972), as quoted in United States v. Holland, 4 ELR at 20713, 6 ERC at 1392, and United States v. Ashland Oil & Transporation Co., 4 ELR at 20787, 7 ERC at 1119. 55. Natural Resources Defense Council v. Callaway, Civil No. 71-1242 (D.D.C. 1975). 56. § 101(e); 33 U.S.C. § 1251(e). 57. See 38 Fed. Reg. 22757 (August 23, 1973); 40 CFR Part 105. 5 ELR 50092 | Environmental Law Reporter | copyright © 1975 | All rights reserved |