Clean Water Act (CWA) and Federal Facilities

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The Clean Water Act (CWA) is the primary Federal statute regulating the protection of the nation’s water. The CWA aims to prevent, reduce, and eliminate pollution in the nation's water in order to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters", as described in CWA section 101(a). A stated goal of the CWA is to eliminate discharge of pollutants into navigable waters, as that term is defined in CWA § 502(7) and corresponding case law. 
Federal facilities have regulatory responsibilities under the Clean Water Act, including:
  • preventing water pollution
  • obtaining discharge permits
  • meeting applicable water quality standards
  • developing risk management plans, and
  • maintaining records.

Part of EPA's mission is to ensure that Federal facilities (and Federal facility contractors) comply with these requirements. 

Based on the Federal Water Pollution Control Act of 1948, the CWA underwent significant reorganization and expansion in 1972, with subsequent major amendments in 1977 and 1987. The CWA does not specifically address contamination of groundwater resources, a subject addressed by provisions in other laws including the Safe Drinking Water Act; the Resource Conservation and Recovery Act; and the Comprehensive Environmental Response, Compensation, and Liability Act. 
The CWA can be found at 33 U.S.C. § 1251 et seq. The CWA regulations are in 40 C.F.R. Parts 104-108, 110-117, 122-140, 230-233, 401-471, and 501-503.

Federal Facility Responsibilities under the CWA include:

  • Obtaining any applicable National Pollutant Discharge Elimination System (NPDES) permit and managing direct discharges in compliance with permit conditions
  • Managing discharges to a Publicly-Owned Treatment Works (POTW) in accordance with established Federal, State, and local pretreatment standards
  • Managing domestic treatment works in accordance with sludge requirements
  • Applying for § 404 dredge and fill permits for construction and development projects
  • Monitoring, recording, and reporting pollutant effluent concentrations
  • Developing, implementing, and maintaining storm water pollution prevention plans and obtaining necessary permits
  • Developing and implementing Spill Prevention, Control, and Countermeasure (SPCC) Plans 
  • Establishing and maintaining records, reports, monitoring equipment, and other information the EPA Administrator may require pursuant to Section 308, as well as allowing access to EPA to copy records, inspect monitoring equipment and sample effluent sources 

Basics of Statute

CWA is the primary Federal statute governing the restoration and maintenance of the “chemical, physical, and biological integrity of the Nation’s waters.” (CWA § 101). One of its principal objectives is to prohibit the discharge of pollutants into waters of the U.S., except in compliance with a permit. 
The CWA establishes several major integrated regulatory programs, standards, and plans, which include the following:
  • National Pollutant Discharge Elimination System (NPDES) Program - Establishes an effluent permit system for point source (e.g., pipe, ditch, sewer) discharges of pollutants into waters of the U.S. The NPDES permit system requires those permitted to maintain records and report on the amount and nature of discharged effluent waste components. The stormwater program is a part of the NPDES program and is designed to reduce or eliminate the discharge of contaminated stormwater into waters of the U.S. The program requires the following stormwater discharges to be covered by an NPDES permit:
    • discharge associated with industrial activity
    • discharge from a large or medium municipal separate storm sewer system, or
    • discharge which EPA or the state/tribe determines contributes to a violation of a water quality standard or which is a significant contributor of pollutants to waters of the United States
  • National and Local Pretreatment Standards - Requires new and existing industrial users to pre-treat wastewater discharged to Publicly-Owned Treatment Works (POTWs) to prevent pollutants in excess of certain limits from passing through POTWs, causing interference in the operation of the treatment works and to protect the quality of sludge generated by these plants (§ 307).
  • Dredge or Fill Discharge Permit Program - Establishes a permit system, administered by the Army Corps of Engineers, for regulating the placement of dredge or fill material into waters of the U.S., including wetlands (§ 404).
  • Sewage Sludge Use and Disposal Program - Establishes a permit system covering the use and disposal of sewage sludge by land application, surface disposal, incineration, and disposal in a municipal solid waste landfill. Requires generators, processors, users, and disposers of sewage sludge from privately - or Publicly-Owned Treatment Works to meet certain standards (§ 405). 
  • Water Quality Management - 40 C.F.R. Part 130 establishes policies and program requirements for water quality planning, management and implementation under sections 106, 205(j), non-construction management 205(g), 208, 303 and 305 of the CWA. Water quality standards are state or tribal goals for individual water bodies and provide the legal basis for control decisions under the CWA.

Application of CWA to Federal Facilities

Under CWA § 301, it is unlawful for any person to discharge any pollutant into waters of the United States without authorization under specific provisions of the CWA, including § 402 (NPDES) and § 404 (discharge of dredged or fill material). While the definition of “person” (§ 502(5)) does not include the United States, pursuant to § 313, federal agencies are required to comply with all Federal and State requirements respecting the control and abatement of water pollution:
“Each department, agency, or instrumentality of the Federal Government possessing the following rights and/or authorities:
  • Having jurisdiction over any facility 
  • Engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants shall be subject to, and comply with, all Federal, State, interstate, and local requirements and administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner as any nongovernmental entity.
. . . The preceding sentence shall apply 
  • To any requirement whether substantive or procedural, (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement whatsoever) 
  • To the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner
This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law.” 
Some CWA requirements which may affect Federal facilities (including Federal facility contractors) include, but may not be limited to:

§ 303: Water Quality Standards and Implementation Plans

Section 303(d) and EPA water quality planning and management regulations require States to identify waters that do not meet or expected to meet applicable water quality standards even after technology-based or other required controls are in place. States are required to establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters.

§ 307: National and Local Pretreatment Standards

Facilities that discharge to POTWs are excluded from NPDES permitting requirements but are subject to national general pretreatment standards (40 CFR Part 403), applicable categorical pretreatment standards (specified in 40 CFR Parts 405-471), and any State or local pretreatment standards. Facilities must sample the effluent, submit reports on the results of such sampling at a frequency specified in the permit and submit monitoring reports to EPA, States, or POTWs with approved pretreatment programs.

§ 308: Inspections, Monitoring, and Entry

EPA, State agencies, or their authorized representatives (e.g., contractors) have broad authority to conduct compliance inspections at any premises on which an effluent source is located (including Federal facilities), or in which any records required to be maintained under § 308 are located. EPA or State inspectors may have access to any records, inspect any monitoring equipment, and sample any effluent to check compliance with NPDES permit requirements, water quality standards, pretreatment standards, effluent limitations, or toxic standards.

§ 311: Oil and Hazardous Substance Liability

The discharge of oil or hazardous substances into or upon the navigable waters of the United States, or adjoining shorelines, or in connection with activities under the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974, or which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States is prohibited.
Any person in charge of a vessel, an onshore facility, or an offshore facility is required, as soon as she/he has knowledge of any discharge of oil or a hazardous substance that may be harmful (see 40 CFR 110.3), to notify immediately the appropriate Federal agency of the discharge. 40 CFR 112.1(c) requires Federal facilities to fully prepare and implement a SPCC Plan. 

§ 312: Marine Sanitation Devices

Section 312 regulates the discharge of vessel sewage to prevent the discharge of untreated or inadequately treated sewage from vessels into or upon waters of the United States. Section 312(d) applies these provisions to vessels owned and operated by the United States unless the Secretary of Defense finds that compliance would not be in the interest of national security. 
With respect to vessels owned and operated by the Department of Defense, the Secretary of Defense issued implementing regulations (DoD 4715.6-R1) in January 2005. The National Defense Authorization Act of 1996 amended section 312 by directing EPA and the Department of Defense to jointly establish Uniform National Discharge Standards for discharges (other than sewage) incidental to the normal operation of a vessel of the Armed Forces. Federal agencies responsible for vessels of the Armed Forces may be liable for a non-compliance penalty of not more than $5,000 for:
  1. operation in the navigable waters of the United States or waters of the contiguous zone if the vessel is not equipped with a required marine pollution control device meeting standards established under section 312(n) or
  2. discharges overboard of any discharge incidental to the normal operation of a vessel of the Armed Forces into waters for which a no-discharge prohibition has been established for such discharge.

§ 313: Federal Facilities Pollution Control

Each Federal agency having jurisdiction over any facility or engaged in activity resulting, or which may result, in the discharge or runoff of pollutants is subject to, and must comply with, all Federal, State, interstate, and local requirements and administrative authorities for the control and abatement of water pollution, including reasonable service charges. This includes adhering to any reporting, recordkeeping, and/or permitting requirements.
If the President determines it to be in the paramount interest of the United States, he may exempt any effluent source of any department, agency, or instrumentality in the Executive Branch. The President may issue an exemption from compliance with any requirements of CWA for a 1-year period, except for the following:
  • Requirements under the National Standards of Performance (§ 306) 
  • The Toxic and Pretreatment Effluent Standards (§ 307) 
Exemptions are renewable annually. The President must report to Congress every January on all exemptions granted during the preceding calendar year and provide the reason for granting the exemptions. 

§ 402: National Pollutant Discharge Elimination System

Point source discharges of pollutants to waters of the United States are prohibited unless they are in compliance with certain provisions of the CWA. The most common way to achieve such compliance is to obtain authorization to discharge pursuant to an NPDES permit issued by EPA or a State agency that has an approved NPDES program. 
NPDES permits generally contain water quality-based and/or technology-based standards for effluent discharges (specified in 40 CFR Parts 405-471 or by the best professional judgment of the permit writer), monitoring requirements, analytical testing methods, and reporting requirements. Dischargers generally must submit Discharge Monitoring Reports that record flow measurement, sample collection data, and laboratory test results on a quarterly or monthly basis.
The provisions of NPDES permits for municipal separate storm sewer systems sometimes vary from other NPDES permits with respect to water quality-based effluent limits, monitoring, and reporting requirements. Noncompliance reports generally must be submitted quarterly or monthly stating the cause of a noncompliance, period of noncompliance, and plans to eliminate recurrence of the incident.
Point source stormwater discharges from large, medium and certain small municipal separate storm sewer systems (MS4s), and stormwater discharges associated with certain industrial activities, construction site stormwater discharges, and other stormwater discharges designated by EPA or an authorized State also require a NPDES permit.
MS4s commonly transport and discharge untreated polluted stormwater run-off into local rivers and streams. Common pollutants include oil and grease from roadway/run-ways/parking lots, pesticides from lawns/golf courses, sediment and debris from sites and discarded trash. MS4 permits require operators to develop and implement a stormwater management program to reduce the discharge of pollutants in discharges from the MS4 to the maximum extent practicable, and to meet other permit requirements as determined appropriate by the permitting authority.

§ 404: Permits for Dredged or Fill Material 

Facilities that discharge dredged or fill materials into waters of the United States must apply for a permit issued by the Army Corps of Engineers. In certain circumstances, EPA also may prohibit, restrict or deny the issuance of a Section 404 permit to discharge dredged or fill material into a water of the United States whenever the Administrator determines the discharge will have an unacceptable adverse effect on resources identified in the Act. 
States may apply for the authority to implement the § 404 program. However, the Army Corps of Engineers retains authority over certain waters and their adjacent wetlands within the State. Under limited circumstances identified in § 404(r), the discharge of dredged or fill materials, as part of a Federal project specifically authorized by Congress, is not prohibited by, or subject to, regulation under § 404.

§405: Permits for Sludge Management 

All treatment works that treat domestic sewage are required to meet Federal requirements for the use and disposal of sewage sludge through land application, surface disposal, or incineration. These requirements are incorporated into permits issued under § 402 of CWA, under the appropriate provisions of other legislation (e.g., Solid Waste Disposal Act), under EPA-approved State sludge management programs, or, in the case of a treatment works that is not subject to the above requirements, in a sludge-only permit.

§ 508: Federal Procurement 

No Federal agency may enter into any contracts with any person convicted of any offense under § 309(c) of CWA, if the person performs such contracts at any facility in which the violation occurred, and if the person owned, leased, or supervised the facility. The prohibition shall continue until the Administrator certifies that the person corrected the condition set in motion by such conviction.

Spill Prevention, Control, and Countermeasure (SPCC) Plans

EPA’s Oil Pollution Prevention regulation establishes requirements for facilities to prevent oil spills from reaching navigable waters of the United States or adjoining shorelines, or certain other areas. The rule applies to owners or operators of certain facilities that drill, produce, gather, store, process, refine, transfer, distribute, use, or consume oil or oil products. The regulation requires that all regulated facilities (including Federal facilities as specified in 40 CFR 112.1(c)) have a fully prepared and implemented SPCC Plan.
The SPCC Plan covers oil of any type and in any form, including, but not limited to the following: 
  • Petroleum 
  • Fuel oil 
  • Sludge 
  • Oil refuse 
  • Oil mixed with wastes other than dredged oil 
  • Fats, oils or greases of animal, fish, or marine mammal origin 
  • Vegetable oils, including oil from seeds, nuts, fruits, or kernels 
  • Other oils and greases, including synthetic oils and mineral oils 
EPA’s Oil Pollution Prevention regulation is in 40 CFR 112.
A SPCC Plan is a detailed, facility-specific, written description of how a facility’s operations comply with the prevention guidelines in the Oil Pollution Prevention regulation. These guidelines include measures such as secondary containment, facility drainage, dikes or barriers, sump and collection systems, retention ponds, curbing, TCPS (tank corrosion protection systems), and liquid devices. A registered professional engineer must certify each SPCC Plan, unless the owner/operator is able to, and chooses to, self-certify the plan.
Unlike oil spill contingency plans that typically address spill cleanup measures after a spill has occurred, SPCC Plans ensure that facilities put in place containment and other countermeasures that would prevent oil spills that could reach navigable waters. Under the regulation, facilities must detail and implement spill prevention and control measures in their SPCC Plans. A spill contingency plan is required as part of the SPCC Plan if a facility is unable to provide secondary containment. 
The regulation applies to non-transportation-related facilities with a total aggregate above ground (i.e., not completely buried) oil storage capacity of greater than 1,320 gallons or total underground (i.e., buried) oil storage capacity greater than 42,000 gallons. This regulation applies specifically to a facility’s storage capacity (regardless of whether the tank[s] is completely filled or not). In addition to the storage capacity criteria, a reasonable expectation must exist that the facility, due to its location, could discharge oil into navigable waters of the United States or adjoining shorelines, or certain other areas. 
Non-transportation related facilities include all fixed facilities, including support equipment, but excludes certain pipelines, railroad tank cars en route, transport trucks en route, and equipment associated with the transfer of bulk oil to or from water transportation vessels. The term also includes mobile or portable facilities, such as drilling or workover rigs, production facilities, and portable fueling facilities. The SPCC Plan only applies while the mobile or portable facility is in a fixed operating mode. 
The SPCC Plan for a mobile or portable facility may be a general plan prepared in accordance with the Oil Pollution Prevention regulation. A new SPCC Plan is not required each time the facility moves to a new site. However, the regulation states that the position or location of onshore mobile or portable oil storage tanks (onshore) should be such as to prevent spilled oil from reaching navigable waters. In addition, in accordance with the regulation, facilities should furnish a secondary means of containment, such as dikes or catchment basins for the largest single compartment or tank. Moreover, mobile or portable facilities should not be located where they will be subject to periodic flooding or washout. 
If a facility discharges oil to navigable waters or adjoining shorelines, the facility is required to follow certain federal reporting requirements. Any person in charge of an onshore or offshore facility must notify the National Response Center (NRC) immediately after he or she has knowledge of the discharge. Facilities must report oil discharges that reach navigable waters to the NRC at 1-800-424-8802 or 1-202-426-2675. The NRC staffs the federal government’s centralized reporting center 24 hours per day with U.S. Coast Guard personnel. 
A common misunderstanding is that by reporting to the NRC a facility has met state and local reporting requirements. The report to the NRC only satisfies federal reporting requirements under the Clean Water Act. Additional state and local reporting requirements may apply. In most cases it makes sense to call 911 in the event of an oil spill, particularly in the case of flammable or combustible oil spills. Any owner or operator of a facility regulated by the SPCC rule must also report the discharge to EPA when:
  • More than 1,000 gallons of oil is discharged to navigable waters or adjoining shorelines in a single event 
  • More than 42 gallons of oil in each of two discharges to navigable waters or adjoining shorelines occurs within any twelve-month period 

EPA Enforcement

EPA’s primary enforcement authorities are set forth in CWA § 309. EPA is authorized under CWA § 309(a) to issue an order requiring a “person” to comply with specified CWA sections (including section 301, the prohibition against unpermitted discharges, or requirements of permits under section 402 or 404). EPA is also authorized under § 309(d) to issue penalty orders to any “person” who violates specified sections of the CWA, or who violates any permit condition or limitation implementing any such sections, or violates a section 309(a) order.
However, what complicates EPA’s enforcement authorities against Federal facilities is the fact that the definition of a “person” does not apply to the United States under section 502(5). As a result, the Supreme Court in Department of Energy v. Ohio, 503 U.S. 607 (1992), held that the CWA did not authorize imposition of section 309(d) civil “punitive” penalties (penalties for past behavior as opposed to “coercive” penalties which look to the future), against the United States pursuant to the citizen suit provision found in section 505(a). Subsequently, this is a result of no clear waiver of sovereign immunity. 
In light of the Supreme Court decision, it is not EPA’s practice to assess “punitive” penalties against Federal facilities. However, there are some exceptions. For example, while the United States is not defined as a “person” under Section 502(5), private contractors working at Federal facilities are persons, and EPA may use the full range of CWA enforcement tools against private contractors if they, for example, discharge pollutants into waters of the United States or violate the terms of a permit. In addition, the Third Circuit Court of Appeals held in Commonwealth of Pennsylvania, Dep’t of Envt’l Res. v. U.S. Postal Service, 13 F.3d 62 (3d Cir. 1993), that the United States Postal Service was not immune from suits for CWA claims, including penalties. 
Further, Section 313 requires federal agencies to comply with the CWA and therefore, EPA can enforce against federal agencies for violations, even if penalties are not an option. EPA can issue a notice of non-compliance (NON) and/or enter into a Federal Facility Compliance Agreement. The typical compliance agreement contains provisions such as a schedule for achieving compliance, citizen suit provisions regarding the enforceability of the settlement, and dispute resolution.
Other authorities are found at CWA § 311 for cleanup and removal of a discharge of oil and/or hazardous substance(s) into navigable waters, adjoining shorelines, or certain other areas. Section 311(c)(1)(A) requires the President (delegated to EPA for discharges in the inland zone, as defined in the NCP), to ensure effective and immediate removal of a discharge by, for example, directing all Federal, State, and private actions to remove a discharge or mitigate or prevent a substantial threat of a discharge. 

Criminal Enforcement

EPA may seek sanctions against individual employees of Federal facilities for criminal violations of the CWA. Criminal fines may be imposed under either CWA § 309(c) or 18 U.S.C. § 3571, the Alternative Fines Act. Enforcement of criminal violations is authorized under CWA § 309(c) for negligent and knowing violations, for knowing endangerments, and for making false statements. The specific fines and penalties under CWA § 309(c) for several types of criminal violations are: 
  • § 309(c)(1): Negligent Violations – Any negligent violation of certain CWA requirements (e.g., Effluent Limitations (§ 301) and Aquaculture (§318)) is punishable by a fine of not less than $2,500 nor more than $25,000 per day of violation and/or by imprisonment not to exceed 1 year. A second conviction for a negligent violation is punishable by a fine of not more than $50,000 per day of violation and/or imprisonment not to exceed 2 years. 
  • § 309(c)(2): Knowing Violations – Any knowing violation of certain CWA requirements is punishable by a fine of not less than $5,000 nor more than $50,000 per day of violation and/or by imprisonment not to exceed 3 years. A second conviction for a knowing violation is punishable by a fine of not more than $100,000 per day of violation and/or imprisonment not to exceed 6 years. 
  • § 309(c)(3): Knowing Endangerment – Any knowing violation of certain CWA requirements that places another person in imminent danger of death or serious bodily injury is punishable by a fine of not more than $250,000 and/or by imprisonment not to exceed 15 years. A second conviction for knowing endangerment may result in a maximum punishment double that for a first-time violation (i.e., double the fine and/or imprisonment not to exceed 30 years).
  • § 309(c)(4): False Statements – Any person who knowingly makes any false material statement, representation or certification may be punished by a fine of not more than $10,000 and/or by imprisonment not to exceed 2 years. A second conviction for making false statements in punishable by a fine of not more than $20,000 per day of violation and/or imprisonment of not more than 4 years. 
Additionally, in accordance with CWA § 311(b)(5), failure to immediately notify the appropriate Federal agency of an oil or hazardous substance discharge is punishable by a fine pursuant to Title 18 and/or by imprisonment not to exceed 5 years. 
In accordance with CWA § 508, a person who has been convicted of a criminal offense or has a serious pattern of civil violations may be barred from receiving Federal government contracts, loans, and grants. 

Emergency Authority

Pursuant to CWA § 504, “upon receipt of evidence that a pollution source or combination of sources is presenting an imminent and substantial endangerment to the health of persons or to the welfare of persons where such endangerment is to the livelihood of such persons,” the Administrator may bring suit on behalf of the United States “to immediately restrain any person causing or contributing to the alleged pollution to stop the discharge of pollutants causing or contributing to such pollution or to take such other action as may be necessary.
CWA § 311(c)(2) authorizes the President (delegated to EPA for discharges in the inland zone, as defined in the NCP), to direct all Federal, State, and private action to remove a discharge or to mitigate or prevent a substantial threat of discharge of oil or a hazardous substance that is a substantial threat to the public health or welfare of the United States. This authority includes responding to discharges or a substantial threat of discharges from a vessel, offshore facility, or onshore facility.

State Enforcement

Authorized States can issue administrative compliance orders or take civil judicial action against violators of CWA provisions, including Federal facilities. However, pursuant to the Supreme Court case Department of Energy v. Ohio, 503 U.S. 607 (1992), states cannot recover penalties for past violations against Federal facilities. States can also file a criminal action against a Federal employee that may result in significant fines and/or prison sentences. 

Tribal Enforcement

CWA § 518 provides that EPA may treat Federally-recognized Indian Tribes in the same manner as States with respect to several CWA provisions including § 309. Eligible federally-recognized Tribal governments may be authorized by EPA to undertake certain activities under the CWA, such as Sections 303, 401, 402, and 404, and water quality planning pursuant to 40 C.F.R. Part 130.
EPA and Federally recognized Tribes may also enter into Direct Implementation Tribal Cooperative Agreements (“DITCA”). DITCAs allow Tribes to help EPA implement Federal environmental programs in Indian country. EPA and Tribes negotiate DITCAs and can help Tribes build the capacity to carry out specific activities for EPA, with EPA retaining final decision-making authority and ultimate responsibility for the environmental programs including all regulatory activities. 

Citizen Enforcement

CWA § 505(a) allows citizens to file a civil action against any Federal agency that is alleged to be in violation of an effluent standard or limitation or an order issued by EPA or a State with respect to such standards and limitations. In addition, CWA § 505(a) allows citizens to file a civil action against the EPA Administrator for alleged failure to perform any non-discretionary act or duty. 
CWA § 505(b) excludes citizens from filing a civil action if EPA or the State has filed and is diligently prosecuting a civil or criminal action; however, citizens can intervene in the case. In addition, CWA § 505(b) precludes citizens from filing a suit until notification is given to EPA, the State in which the alleged violation occurred, and the facility alleged to be in violation of a standard, limitation, or order. Additional conditions and requirements pertaining to citizen suits are set forth in CWA § 505(a) through (h). 

EPA CWA Policies and Guidance

Storm Water

Oil Pollution Prevention