Other Laws to Protect Your Watershed
Beyond the Clean Water Act...
The Clean Water Act is not the only tool that can be used to restore and protect water bodies. This chapter introduces and explains several other federal laws that citizens can use to help improve water quality and watershed health.
- Safe Drinking Water Act of 1974
- National Environment Policy Act of 1970
- Emergency Planning and Community Right-to-Know Act of 1986
- Toxic Substances Control Act of 1976
- Federal Insecticide, Fungicide and Rodenticide Act of 1947
- Resource Conservation and Recovery Act of 1976
- Comprehensive Environmental Response, Compensation and Liability Act of 1980 (Superfund)
- Endangered Species Act of 1973
- Coastal Zone Management Act of 1972
- National Wild and Scenic Rivers Act of 1968
- Farm Security and Rural Investment Act of 2002 (Farm Bill)
- National Forest Management Act of 1976
- Surface Mining Control and Reclamation Act of 1977
- Electric Consumers Protection Act (ECPA) of 1986
- The Marine Protection, Research and Sanctuaries Act of 1972
- Title VI of the Civil Rights Act of 1964
- Public Trust Doctrine
Summaries of these laws can be found below with relevant links.
Safe Drinking Water Act of 1974
The Safe Drinking Water Act (SDWA) of 1974 was enacted in response to outbreaks of waterborne disease and increasing chemical contamination of public water sources. The SDWA authorizes the EPA to set maximum contaminant levels (MCLs) for dangerous chemicals, waterborne bacteria and viruses in the public’s drinking water. In 1996, Congress strengthened the SDWA by requiring water suppliers to prepare Source Water Assessments which tell their consumers where their water comes from, what contaminants are in it, and whether the water poses a risk to health. These Source Water Assessments are supposed to identify risks to all water resources used (or to be used) as drinking water supplies. Every state developed a Source Water Assessment Plan that set priorities and laid out a process for completion of the assessments. The revised law also added several other new protections that protect drinking water all the way from the source to the tap. It required, for example, new standards to protect the public from potentially deadly microbes like cryptosporidium. In 2001, the EPA set a new arsenic standard of 10 parts per billion. This decision was at first suspended by the Bush Administration but was later reaffirmed. Continued efforts are needed to address many other threats to drinking water supplies such as groundwater contamination by the gasoline additive MTBE, pharmaceuticals in municipal wastewater and toxic contaminants in stormwater discharges. (http://www.epa.gov/safewater/sdwa)
Clean Water Act Connection: A goal of the Clean Water Act is to ensure that our water is safe to drink. The Safe Drinking Water Act complements the Clean Water Act by requiring the assessment of the quality of and risks to public drinking water supplies. The SWDA also sets drinking water quality treatment standards that states, localities and water suppliers must meet. The EPA enforces this process. Also, the Source Water Assessment Plans can and should be used in the writing of permits (especially in determining mixing zones) and the development of TMDLs.
National Environmental Policy Act of 1970
The National Environmental Policy Act of 1970 is the foundation of federal efforts to protect the environment. The Act requires all federal agencies to examine the need for, alternatives to and environmental consequences of all major proposed federal actions. NEPA requires federal agencies to disclose the environmental effects of their proposed actions and to include the public in their decision- making. The Act also established the President’s Council on Environmental Quality (CEQ), which has primary responsibility for overseeing NEPA implementation. (http:/www.epa.gov/compliance/ nepa)
Clean Water Act Connection: When federal land managers make decisions on proposed logging, grazing and mining activities, they use NEPA to assess impacts on water quality. The U.S. Army Corps of Engineers uses NEPA as it weighs decisions on proposed dams, flood control and other water resource projects that impact water quality. NEPA needs to work in concert with parts of the Clean Water Act, such as water quality standards, NPDES permits, dredge and fill permits and water quality certification. Citizens can also use information gathered under NEPA in developing TMDLs for all relevant pollution sources in their watersheds. NEPA is also used with other laws, such as the Endangered Species Act.
Emergency Planning and Community Right-to-Know Act of 1986
Congress passed the Emergency Planning and Community Right-to-Know Act (EPCRA) to help communities deal safely and effectively with the many hazardous substances that are used in their neighborhoods, towns and watersheds. The Act outlines reporting requirements for the storage of hazardous chemicals and requires communities to develop emergency plans to respond to chemical accidents. The law created the Toxic Release Inventory (TRI), which is an online database that allows users to simply type in their zip code and get details about the release of certain toxic chemicals (sidebar at left). It is based on the notion that the public has a “right to know” what pollutants are added to the environment, especially in their own neighborhoods. The EPA calls the TRI “a powerful tool…for understanding the many factors that contribute to human health and environmental conditions.” (http://yosemite.epa.gov/oswer/ceppoweb.nsf/content/ EPCRA.htm)
Clean Water Act Connection: Emergency plans developed to respond to chemical accidents and spills should include protection of water bodies. Reports on hazardous substances and storage facilities provide local governments and the public with information about possible chemical hazards in local watersheds. This information can be used to determine whether existing or designated uses are supported, criteria are met, permits are sufficiently protective (especially in mixing zones) and whether TMDLs include all relevant sources.
Toxic Substances Control Act of 1976
Thousands of chemicals and their compounds are developed each year with unknown toxic or dangerous characteristics. The Toxic Substances Control Act (TSCA) requires the EPA to test, screen and regulate all chemicals produced or imported into the United States. (http://www.epa.gov/region5/defs/html/tsca.htm)
Clean Water Act Connection: To prevent tragic consequences, TSCA requires that any chemical that reaches the consumer marketplace be tested for possible toxic effects to human health and the environment prior to commercial manufacture. Results from TSCA-required testing can and should be used in the development of numeric and narrative water quality criteria by the EPA and states. These criteria must protect existing and designated uses, including human health and aquatic life and habitat, from toxic contamination.
Federal Insecticide, Fungicide and Rodenticide Act of 1947
Amended in 1972, 1988 and 1996, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) provides federal control over pesticide distribution, sale and use. All pesticides used in the U.S.must be registered (licensed) by the EPA. Registration assures that pesticides will be properly labeled and, if used in accordance with specifications, will not cause unreasonable harm to the environment. (http://www.epa.gov/region5/defs/html/fifra.htm)
Clean Water Act Connection: FIFRA does not address the cumulative impacts of pesticides in our waterways. FIFRA documentation should be used in developing protective water quality criteria at the federal and state levels for all pesticides on the market. Recent court decisions require NPDES permits for pesticide application in waterways (Chapter 9, Poor Agricultural Practices, p. 170).
Resource Conservation and Recovery Act of 1976
The Resource Conservation and Recovery act (RCRA) gave the EPA the authority to control hazardous waste from “cradle to grave.” This includes the generation, transportation, treatment, storage and disposal of hazardous waste. RCRA also set forth a framework for the management of non-hazardous wastes. RCRA focuses only on active and future facilities and does not address abandoned or historical sites (http://www.epa.gov/region5/ defs/html/rcra.htm)
Clean Water Act Connection: The 1986 amendments to RCRA enable the EPA to address water contamination that could result from leeking underground tanks storing petroleum and other hazardous substances. All RCRA cleanups must be performed so as to reduce the likelihood that hazardous and non-hazardous substances will ever leach into groundwater or run over the ground to contaminate larger surface water bodies. RCRA activity may jeopardize existing or designated uses, and therefore water quality standards should be considered in all decisions regarding the cleanup and management of contaminated sites. Discharge permits and TMDLs must take RCRA activity into account when evaluating cumulative impacts and watershed-wide sources of contamination. At former nuclear weapons sites, billions of dollars in cleanup funds are spent annually under RCRA to remove radioactive and hazardous contaminants that threaten water bodies at levels that violate Clean Water Act standards.
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (Superfund)
As designed, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) provided a federal “Superfund” to pay for the cleanup of uncontrolled or abandoned hazardous waste sites, as well as the cleanup of accidents, spills and other emergency releases of pollutants and contaminants into the environment. Through the Act, the EPA was given power to seek out all parties responsible for any release and assure their cooperation in the cleanup. The EPA cleans up orphan sites when responsible parties cannot be identified or located, or when they fail to act. The law created a tax on polluters to fund cleanup of abandoned sites, but Congress stopped collecting the tax in 1995, and the $1.6 billion collected through the years has almost been completely spent. As a result, the EPA has been limiting taxpayer-funded cleanup activities under CERCLA. The EPA can require private parties to clean up a site through orders, consent decrees or other settlements. Once a “response action” has been completed, the EPA recovers clean up costs from financially viable individuals and companies. (http://www.epa.gov/superfund/)
Clean Water Act Connection: CERCLA requires the cleanup of toxic sites, which frequently are located in or next to waterways and which often have contaminated a ground or surface water source that may still be in use. Superfund sites may jeopardize existing or designated uses, and therefore water quality standards should be considered in the cleanup and management of sites. Discharge permits and TMDLs must take CERCLA activity into account when evaluating cumulative impacts and watershed-wide sources of contamination.
Endangered Species Act of 1973
The Endangered Species Act (ESA) provides for the conservation of threatened and endangered plants and animals and the habitats in which they are found. The U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration (NOAA) Fisheries (formerly National Marine Fisheries Service) maintain a list of endangered and threatened species. The Act prohibits any action that results in the “taking” (harassing, harming or killing) of a listed species, or that adversely affects habitat (Section 9). It also requires federal agencies to consult with the relevant management agency before taking action or granting a permit that would jeopardize a species (Section 7). Protection or improvement of habitat on state or private lands may be addressed through the development and implementation of Habitat Conservation Plans (Section 10). (http://endangered.fws.gov and http://www.nmfs.noaa.gov/pr)
Clean Water Act Connection: ESA Sections 7, 9 and 10 are tools that can be used to protect the aquatic habitats of threatened and endangered species on both public and private lands. Lawsuits have relied on the ESA to stop, change or curtail some activities including timber sales, grazing and hydroelectric operations. In the Northwest, the ESA has been used as a tool to improve habitat for several listed salmon species. Water quality criteria must be designed to protect the most sensitive uses which often include threatened or endangered species. The antidegradation policy requires protection of existing uses such as threatened and endangered species, and it can lead to designation of outstanding waters to protect the ecological significance of critical habitat. Federal lawmakers have proposed combining the ESA’s Habitat Conservation Plan process with TMDLs. While they should be coordinated, they each have specific requirements that could be lost in the streamlining.
Coastal Zone Management Act of 1972
The Coastal Zone Management Act (CZMA) requires the National Oceanic and Atmospheric Administration (NOAA) to preserve, protect, develop and where possible, restore and enhance the resources of coastal zones. This mandate is to be accomplished in cooperation with the 29 states and five territories that have coastal management programs. The Act assists the states in achieving responsible use of land and water resources in the coastal zone by giving full consideration to ecological and aesthetic values, cultural history and economics. (http://coastalmanagement.noaa.gov/)
Clean Water Act Connection: In 1990, through amendments to CZMA, Congress created the Coastal Zone Management Program, requiring states to develop and implement programs to reduce polluted runoff and more effectively manage nonpoint source pollution. The CZMA provides a hook for regulating nonpoint sources of pollution in coastal states. This tool can come into play when developing and implementing TMDLs that address problems in estuarine species and habitat.
National Wild and Scenic Rivers Act of 1968
In the 1960s, the country awoke to the fact that our rivers were being dammed, dredged, diked, diverted and degraded at an alarming rate. The Wild and Scenic Rivers Act serves to protect designated free-flowing rivers that have “outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural and other similar values.” The Act says these rivers “shall be preserved in the free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations.” By 1998, 175 rivers had been designated, covering 10,955 river miles (out of 3.5 million U.S. river miles). The most recent designation was 30 miles of the Westfield River in Massachusetts in 2004. (http://www.nps.gov/rivers)
Clean Water Act Connection: This law states that by maintaining rivers in a free-flowing condition, it can “protect the water quality of such rivers and… fulfill other vital national conservation purposes.” For example, at the time Oregon’s Klamath River was protected under the Wild and Scenic Rivers Act, a 15-year battle over the proposed Salt Caves Hydro Project came to an end. The dam would have increased water temperatures in a river system that was already seriously stressed by other uses. A Wild and Scenic designation becomes an existing use of a river that needs to be protected in water quality standards by a designated use such as “aesthetics” or “recreation.” The use can be protected against harm through the most basic antidegradation protection of existing uses as well as through designation as an Outstanding National Resource Water (ONRW).
Farm Security and Rural Investment Act of 2002 (Farm Bill)
The 2002 Farm Bill increased spending for agricultural conservation programs by $9 billion, including incentives to help farms address environmental problems associated with farming. It increased funding for the Environmental Quality Incentives Program (EQIP) to provide more than $1 billion per year for farmland and floodplain protection, grazing lands conservation, and wildlife habitat protection. The 2002 Farm Bill also continued the Conservation Reserve Enhancement Program (CREP) launched in the 1996 farm bill, which targets areas for restoration. (http://www.usda.gov/farmbill/)
Clean Water Act Connection: Washington and Oregon are using CREP funds to restore habitat for salmon species listed under the ESA. The Washington CREP is restoring freshwater riparian habitat along 3,000 miles of salmon streams, including all streams that provide spawning habitat for listed species. The Farm Bill also gives billions of dollars to farming operations to encouragethe use of fertilizers and pesticides that ultimately degrade water quality. By providing funds to improve management practices on agricultural lands, the Farm Bill can help to implement agricultural nonpoint source pollution reductions in TMDLs.
National Forest Management Act of 1976
The National Forest Management Act (NFMA) is a cornerstone of environmental law intended to protect biodiversity in National Forests and to ensure public involvement in forest planning and management. It provides for logging while recognizing “the fundamental need to protect, and where appropriate, improve the quality of soil, water and air resources.” (http://www.fs.fed.us/emc/nfma/)
Clean Water Act Connection: NFMA is supposed to ensure that timber will be harvested from National Forests “only where…soil, slope or other watershed conditions will not be irreversibly damaged.” It also specifies that “protection is provided for streams, stream-banks, shorelines, lakes, wetlands, and other bodies of water from detrimental changes in water temperatures, blockages of water courses, and deposits of sediment, where harvests are likely to seriously and adversely affect water conditions or fish habitat…” The roadless area conservation rules adopted by the Clinton Administration were intended to protect millions of acres of roadless habitat for species of concern identified through NFMA regulations. The Bush Administration has compromised these rules through the “Healthy Forests Initiative.” To integrate the CWA with NFMA, citizens can insist that water quality standards, antidegradation and TMDLs be included as part of Forest Management Plans, where appropriate. Citizens should comment on timber sales with these CWA tools in mind and engage in the 401 certification process where federal licenses and permits are issued for forest activities.”
Surface Mining Control and Reclamation Act of 1977
The Surface Mining Control and Reclamation Act (SMCRA) was passed in order “to protect society and the environment from the adverse effects of surface coal mining operations,” among other things. The Act establishes minimum requirements for surface coal mining activities and the reclamation of coal-mined lands. Coal mining activities on state and federal lands is prohibited without a permit, and a reclamation plan must be part of the permit application process. Disturbances to and adverse impacts on fish, wildlife and other environmental values are to be minimized by mine operators. In reclamation planning, land and water resource restoration is a priority. The Act also creates an Abandoned Mine Reclamation Fund. Money from the fund is used to reclaim and restore land and water resources which have been adversely affected by coal mining. The Act outlines monitoring and inspection provisions as well. (http://www.osmre.gov/)
Clean Water Act Connection: Active mines are required to obtain a mining permit under SMCRA as well as a NPDES permit for their activities. SMCRA is very important to the protection of water quality, particularly for acid producing coal mines. There are many aspects of SMCRA that regulate mining impacts on the “hydrological balance.” It is important that reclamation plans address water quality standards and adequately reclaim the land. SMCRA prohibits mining in specified federal areas, including those which are part of the Wild and Scenic Rivers System. To better address toxins from mining, citizens can insist that permit requirements prevent water pollution and that a 404 cumulative impacts analysis be completed.
Electric Consumers Protection Act (ECPA) of 1986
Thousands of hydropower dams that are operated by private developers, stockholder-owned utilities or state or local governments are regulated by the Federal Energy Regulatory Commission (FERC). This federal agency issues 30- to 50-year licenses that specify how dams are to be operated,what minimum levels of water must be allowed to flow through the dams, what forms of fish passage must be installed and, in some cases, how watershed lands are managed. The licenses for hundreds of dams are up for renewal through 2010. The EPCA of 1986 (an amendment to the Federal Power Act of 1920) requires the Commission to give “equal consideration” to both non-power values (such as the environment, recreation, fish and wildlife) and power objectives (development, efficiency, etc.) in making a licensing decision. The law also requires FERC to base mitigation for adverse effects on the recommendations of federal and state fish and wildlife agencies and to negotiate with the agencies if disagreements occur.
Clean Water Act Connection: Idaho Rivers United reports that the process of relicensing hydropower dams has “spawned creative ideas for river improvements, as well as negotiations among hydropower companies, natural resource agencies, non-governmental organizations and individuals to implement these rehabilitation measures. Remarkable river enhancement has resulted.” Protection of existing and designated uses needs to be part of the relicensing process. Additionally, to the extent that hydropower facilities are contributing to threats or impairment, relicensing processes should be coordinated with the development and implementation of TMDLs.
The Marine Protection, Research and Sanctuaries Act of 1972
The Marine Protection, Research and Sanctuaries Act (MPRSA), also known as the Ocean Dumping Act, prohibits all ocean dumping without a permit in any ocean waters under U.S. jurisdiction by any U.S. ship or by any ship sailing from a U.S. port. The ban includes the dumping of radiological, chemical and biological warfare agents, high-level radioactive waste, medical waste and sewage sludge. Permits for dumping of materials other than dredge spoils can be issued by the EPA if the agency determines (through a full public notice and process) that the discharge will not unreasonably degrade or endanger human health or welfare or the marine environment. The law also has provisions related to creating marine sanctuaries, conducting ocean disposal research and monitoring coastal water quality. (http://www.epa.gov/owow/ocpd/marine.html)
Clean Water Act Connection: The MPRSA has been strengthened in recent years, particularly to address sewage sludge dumping, which is not covered by the Clean Water Act. Water quality standards are set by states and are not enforceable outside of state waters (3 miles from shore). Therefore, the Ocean Dumping Act adds significant protections for waters outside state jurisdiction by prohibiting the dumping of any materials in any U.S. water without a permit.
Title VI of the Civil Rights Act of 1964
Title VI of the Civil Rights Act of 1964 requires federal agencies to ensure that no programs or activities receiving federal financial assistance discriminate on the basis of race, color or national origin. Courts have ruled that Title VI guarantees the fair treatment and meaningful involvement of all people with respect to the development, implementation and enforcement of environmental laws, regulations and policies. This guarantee has come to be known as “environmental justice.” The Supreme Court has ruled that Title VI authorizes federal agencies, including the EPA, to adopt implementing regulations that prohibit discriminatory effects. (http://www.epa.gov/civilrights)
Clean Water Act Connection: Since the early 1990s, the EPA has received increasing numbers of complaints that state pollution control permits violate Title VI by dumping a disproportionate amount of contamination in communities of color or low income communities. Policies or practices that seem neutral (such as NPDES permits), but that result in discriminatory effects, violate Title VI regulations unless it is shown that the policies or practices are justified and that there is no less discriminatory alternative.
Public Trust Doctrine
The Public Trust Doctrine is a common law doctrine. The legal right of the public to use certain lands and waters is the essence of the Doctrine. The right may be concurrent with private ownership. The legal interest of the public is not absolute; it is determined by a balancing of interests. Under the Public Trust Doctrine, polluters are liable to the public for compensation for lost use or reduced functions (Natural Resource Damages, NRD) of tidal lands, waterways, groundwater, wetlands, wildlife and fisheries that rightly belong to the people. NRD law requires that the government act as a public trustee, making polluters pay for resource restoration or replacement.
Clean Water Act Connection: We have lost touch with the fundamental premise that the health and use of the nation’s waters must be protected for the public. Citizens can use the Public Trust Doctrine to challenge state decisions and actions that are harmful to rivers. In doing so, they can often force state agencies to consider the natural resources held in the public trust more carefully.
