Clean Water Act - CWA

The federal Clean Water Act (CWA), enacted in 1972, is the primary federal surface water quality protection statute in the United States. The CWA authorizes a variety of regulatory and nonregulatory tools to reduce direct pollutant discharges into "navigable waters", to finance municipal wastewater treatment facilities, and to manage polluted runoff. Section 301(a) of the CWA states that except in compliance with the statutory permit requirements, it is unlawful to "discharge" any pollutant into Waters of the United States. See 33 U.S.C. § 1311(a). With regard to stormwater, Section 402 of the Act requires permits for any stormwater "discharge associated with industrial activity." Id. at § 1342(p)(2)(B). A "discharge" is defined by the Act as "any addition of any pollutant to navigable waters from any point source." Id. at § 1362(12).

Polluted stormwater runoff is one of the main causes of pollution in bodies of water that do not meet water quality standards. If left unchecked, this pollution can result in the destruction of fish, wildlife, and aquatic life habitats and pose a threat to public health due. Yet, regulation of stormwater has proved difficult.

Pursuant to sections 301 and 402(p) of the federal Clean Water Act, EPA has jurisdiction over stormwater discharges from industrial facilities. EPA's National Pollutant Discharge Elimination System (NPDES) is the permit mechanism which allows such discharges. The CWA allows EPA to delegate its NPDES permitting authority to the states that meet minimum requirements for administering the approved program. See 40 C.F.R. Part 122. EPA has delegated permit authority to the most states. Consequently, as a practical matter, the states are delegated stormwater permitting authority from the EPA and the prospective permittee only has to seek one permit (i.e. one permit issued by the state covers both state and federal requirements). Yet, it is important to understand that EPA does not completely delegate enforcement authority. Hence, parties that violate their stormwater permits could face two potential enforcement regimes (in addition to local erosion control authorities, who also may assert authority over grading and sediment control).

Construction activities involving five acres or more are regulated under Phase I of the NPDES stormwater program. 40 C.F.R. §122.26(b)(14)(x) On March 10, 2003, new regulations came into effect (Phase II) that extended coverage to construction sites that disturb one to five acres in size, including smaller sites that are part of a larger common plan of development or sale. 40 C.F.R. § 122.26(b)(15). Thus, putting in a restaurant on a 3/4 acre pad that is part of a 20 acre retail center would require permit coverage.