About The Clean Water Act
About The Clean Water Act
Introduction
Discharging pollutants of any sort into surface waters is illegal without a permit. The Clean Water Act (CWA) passed in 1972 set as a goal the elimination of all discharges. Congress recognized that it would take time for industries and municipalities to implement the pollution control measures necessary to achieve "zero discharge", and that in fact advances in technology leading to zero discharge options would also need to occur. Therefore, Congress established, as part of the Clean Water Act, a temporary permit program called the National Pollutant Discharge Elimination System (NPDES) program. Although oversight for the program still resides with EPA, most states, including Iowa since 1978, have been delegated the authority to administer the program. States must have appropriate state statutes paralleling the Clean Water Act before NPDES and other CWA administrative authority is delegated. Iowa's Clean Water Act administrative rules are found in IAC 567 Chapter 61 "Water Quality Standards" (PDF 80 Kb). State water quality standards (WQS) consist of 1) designated uses, 2) water quality criteria, and 3) antidegradation rules.
Designated Uses
The CWA discusses in some detail a number of beneficial uses of surface waters, often summarized as the swimmable/ fishable/ drinkable uses. The Act also very specifically states that transport and assimilation of waste is NOT a beneficial use! There is no right to discharge. All waters must be protected for "existing [beneficial] uses" and should be protected for the "highest attainable use". Existing uses are those which were occurring or have been achieved since November 28, 1978. While the term "fishable" conjures up the notion of the commercial or recreational harvest of fish, "fishable" has been consistently interpreted by EPA and by the courts to mean "aquatic life". Effluent limits in discharge permits will be either more or less stringent, depending upon the designated use of the water receiving the waste. Consult the Surface Water Classification Table (Excel 450 Kb) and associated Stream Classification Key (PDF 100 Kb) to see the level of aquatic life and human health protection provided your favorite river, lake, or stream. If it is not listed, then it falls into the "general" category. Eighty-three percent of all Iowa river- and stream-miles are in the "general" category and are NOT protected for aquatic life and only narratively protected for a number of other uses. The failure to protect for "fishable/swimmable" in such a large percentage of Iowa's surface waters is an unconscionable violation of the State's responsibility to properly implement the Clean Water Act.
Obviously, anglers, wildlife enthusiasts, and those of us who simply enjoy a peaceful nature walk, would like to see rivers and streams designated to protect for the highest level of aquatic life and other beneficial uses that are, or could be, sustained. Just as obviously, dischargers (both municipal and industrial) would like to see "receiving waters" designated for lower levels of aquatic life and other protections, since this allows them to discharge larger quantities of pollutants without proper treatment! In Iowa, the dischargers usually prevail. This is unfortunate since swimmable, fishable and drinkable uses of the water are protected by federal law while transport and assimilation of waste specifically are NOT protected.
Water Quality Criteria
WQS must include numerical criteria for a number of common wastewater parameters such as BOD (biological oxygen demand), total suspended solids (TSS), dissolved oxygen (DO), ammonia, temperature, pH, various metals, and a variety of known carcinogenic compounds associated with municipal or industrial waste. Monitoring requirements vary between permits depending upon the wastewater treatment technology being used, the ability of the receiving water to dilute the waste, and the designated uses of the receiving water. For each treatment type, there are national requirements called "technology based effluent limits" which must be reflected in the permit limits, regardless of the use designation or assimilative capacity of the receiving water. Where the technology based limits are not adequate to protect for the existing or designated uses of the receiving water, more stringent limits called "water quality based effluent limits" (WQBEL) must be reflected in the permit limits.
Aquatic life is an existing use, and must be protected from both mortality (acute toxicity) and significant growth or reproductive impairment (chronic toxicity). Under the CWA, any lowering of water quality below this full level of protection is forbidden. States are encouraged to adopt acute and chronic numerical criteria for pollutants wherever EPA has established guidance values through scientific study and review.
Antidegradation Rules
Although Iowa's current WQS contain a number of "antidegradation" statements, there is no protocol for implementing them and there seems to have been no effort to review the vast majority of permits for compliance with antidegradation requirements. Three levels of "antidegration" are required in state WQS:
Tier 1: Existing uses must be protected at all times. Permits may not be issued under any circumstances that would allow an existing use to be impaired. There are no exceptions. Because Iowa does not provide proper aquatic life protection for 83% of our river and stream miles, these rivers and streams do not receive Tier 1 protection.
Tier 2: Where water quality exceeds the minimum necessary to sustain the existing or designated uses, no reduction in water quality will be allowed without a proper review determining that the degradation is "necessary to accommodate important economic or social development". No examples of DNR performing a Tier 2 review have been uncovered.
Tier 3: State WQS must contain provisions for allowing the very best waters to be considered for a Tier 3 designation as "Outstanding National Resource Waters" (ONRW). Degradation of ONRW waters is not allowed regardless of economic or social development issues. Iowa has not taken advantage of Tier 3 opportunities to protect a single waterbody in the state. In fact, Iowa's WQS do not contain a protocol or a procedure for evaluating waters for Tier 3 protection.
In Conclusion
Sierra Club supports an Iowa policy of protecting the aquatic environment and public health as priority objectives, rather than accommodating dischargers. Official department policy has not focussed on enforcement, rather "coaching for compliance". Consequently, hundreds of dischargers, in fact more than two-thirds, routinely violate their permits every year. The public, not the discharger, must be considered the customer of the DNR, and permit violations must be aggressively enforced. The practice of allowing dischargers to routinely violate their permits without incurring penalities must end.
To learn more about the Clean Water Act, try these national web sites:
EPA's summary and link to full text of the Clean Water Act