Clean Water Act - Chapter 2 - Managing Environmental Liability

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Managing Environmental Liability - Business Transactions and Brownfield Redevelopment - Looseleaf

Managing Environmental Liability - Business Transactions and Brownfield Redevelopment - Electronic

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CLEAN WATER ACT (33 U.S.C. 1251 et seq.)
Oil Pollution Act (33 U.S.C. 2701 et seq.)
ENDANGERED SPECIES ACT
(16 U.S.C. 1531 et seq.)

§ 2.01 Introduction

For much of this nation's history, the states had the primary task of
controlling water pollution, with the federal role generally limited to providing
technical and financial assistance to the state regulatory programs.1 As one might
expect, the regulatory schemes adopted by the states varied greatly. The federal
government was eventually able to encourage states to develop uniform water
quality standards by conditioning federal assistance on the adoption of
standards.2 However, the federal government was not authorized to enforce those
state standards and water quality continued to decline as state enforcement efforts
lagged. The situation reached its nadir when in the late 1960s, the Cuyahoga
River caught on fire and Lake Erie was pronounced dead.

In the face of this deteriorating quality of the nation's waters, Congress
enacted the Clean Water Act (then known as the Federal Water Pollution Control
Act) in 1972.3 The goal of the Clean Water Act (CWA) was to "restore and
maintain the chemical, physical and biological integrity of the Nation's waters."4
To achieve this objective, the CWA prohibits the discharge of any pollutants into
the nation's waters without a permit issued by the National Pollutant Discharge
Elimination System (NPDES) permit program of section 402.5 These permits
restrict the rate and concentration of pollutants that may be discharged by a
permittee. These maximum discharges of pollutants are called "effluent
limitations" and are set using technology-based controls or state water quality
standards. The permits also impose other operating conditions, as well as
reporting and monitoring requirements.6 The CWA also established the Dredged
or Fill Material Permit Program of section 404 to protect wetlands.7 The CWA
was further amended in 1987 by Water Quality Act 1987 (WQA).8

Water quality has generally improved under the CWA, many surface water
still have not achieved their designated water quality standards. Much of the
pollution leading to water quality impairments are a result of pollution from
diffuse sources such as runoff from urban streets and farms and overflows from
storm sewers. However, many regulated facilities continue to discharge
pollutants in excessive of their permit limits. A recent study by the U.S. Public
Interest Research Group (PIRG) concluded that 60% of industrial and municipal
facilities issued NPDES permits violated their wastewater discharge permits at
least once between January 2002 and June 2003. The average violation was six
times the permit limits. 436 major facilities reported exceedances in at least 10 of
the 18 monthly reporting periods covered by the study while 35 have excessive
discharges for every reporting period. The 10 jurisdictions with the highest
percentage of violators were Connecticut, the District of Columbia, Iowa,
Massachusetts, New Hampshire, Nevada, North Carolina, Ohio, Rhode Island,
and West Virginia. The 10 states with the highest average permit exceedances for
the reporting period covered by the PIRG study were Arizona, Connecticut,
Hawaii, Iowa, Michigan, Nevada, North Carolina, Rhode Island, Texas and West
Virginia.

Chapter 2: Clean Water

2.01 Introduction
2.01A Special Note on Cleanup Liability from Historical Wastewater Practices
2.01 Administration of the CWA
2.02 NPDES Permit Program
2.02A Important NPDES Definitions
2.02B Permit Shield and Defenses to NPDES Violations
2.03 NPDES Permits for Industrial Dischargers
2.03A Discharges Requiring NPDES Permits
2.03B Discharges Exempt from NPDES Permitting Requirements
2.03C Permit Application Procedures
2.03D Permit Conditions
2.03E Watershed-Based NPDES Permits
2.04 Stormwater Discharges
2.04A Stormwater Program for Industrial Facilities
2.04B Stormwater Program for Construction Activity
2.04C Stormwater Program for Municipalities
2.04D Examples of Federal Stormwater Enforcement
2.04E Examples of State Stormwater Enforcement
2.04F Stormwater and Wetlands Enforcement Coordination
2.04G Stormwater and ESA Coordination
2.04H Stormwater Retention Ponds and Cleanup Liability
2.04I Stormwater Construction Techniques To Reduce Development Costs
2.05 Regulation of Municipal Treatment Plants and Indirect Industrial Dischargers
2.05A Indirect Discharges
2.05B Enforcement Actions Involving Indirect Dischargers
2.05C Management of Biosolids (Sewage Sludge)
2.05D Combined Sewer Overflows (CSOs)
2.05E Sanitary Sewer Overflows (SSOs)
2.05F Regulation of Septic Tanks and Decentralized Wastewater Treatment Systems
2.05G Funding For On-Site Wastewater Systems
2.05H Septic Systems and Commercial Properties
2.06 Non-Point Sources
2.07 EPA Trading Policy for Point Sources
2.07A Funding for Water Quality Trading
2.07B Electronic Water Trading Mechanisms
2.08 Dredged and Fill Materials Permit Program
2.08A Determining If a 404 Permit Is Required
2.08B Definition of Wetlands
2.08C Application to Particular Kinds of Wetlands
2.08D Regulated Activities
2.08E Exempt Activities
2.08F Nationwide Permits
2.08G Individual 404 Permit Procedures and Conditions
2.08H Denial of Wetlands Permits
2.08I After the Fact Permits
2.08J Mitigation
2.08K Examples of Recent Federal and State Wetlands Enforcement Actions
2.08L Special Note on Wetlands and Regulatory Takings
2.08M Wetlands Preservation and Conservation Grants
2.08N IRS Tightens Rules for Donations of Easements to Nonprofits
2.09 Oil Spills
2.09A Definitions
2.09B Scope of Liability
2.09C Spill Reporting Requirements
2.09D Limitations on Liability and Exceptions to the Limitations
2.09E Defenses to Oil Spill Liability
2.09F Operating, Equipment, and Personnel Requirements Under OPA
2.09G Contribution and Filing of Claims
2.09H Oil Spill Enforcement Provisions
2.09I Spill Prevention Control and Countermeasure Plans (SPCC)
2.09J Special Note on Interplay Between OPA and Wetlands
2.10 CWA Enforcement
2.10A Civil Enforcement
2.10B Criminal Enforcement
2.10C Citizen Suits
2.11 Expanding Scope of the CWA
2.11A Limiting State Water Rights Under the CWA
2.11B Limiting Pesticides Uses Under the CWA
2.11C Impact of the CWA on Land-Use
2.11D Limiting Air Emissions Through the CWA
2.11E The CWA and Remediation of Contaminated Sediments
2.12 Endangered Species Act
2.12A Prohibited Takings
2.12B Incidental Takings and Habitat Conservation Plans
2.12C “No Surprises” Rule
2.12D Safe Harbor and Candidate Conservation Agreements with Assurances
2.12E ESA Conservation Banks
2.12F ESA Grant Programs
2.12G ESA and State Open Space Initiatives
2.12H Special Note On Interplay of ESA and FIFRA

Lawrence P. Schnapf is principal of Schnapf LLC. He has 25 years of national environmental experience with Fortune 500 corporations and a number of major New York-based law firms.  Mr. Schnapf primarily concentrates on environmental issues associated with corporate, real estate and brownfield transactions, commercial lending, distressed debt, bankruptcy and workouts. He has extensive experience with brownfield redevelopment and financing, negotiating environmental insurance policies for business and real estate transactions, performing environmental due diligence for complex business transactions.