Water

Trees and their reflection on the water lined a lake. Courtesy of NPS.

The Clean Water Act

Congress passed the Clean Water Act (CWA or Act) in 1972. After three key events -- significant amendments in the late 1970s, a regulatory push by the Environmental Protection Agency (EPA), and the defense of these regulations against industry and environmental group challenges -- the regulations were sufficiently in place by the mid 1980s for the Section to commence enforcement litigation in earnest.

The statute’s provisions are straightforward from an enforcement perspective:

Stated objective: “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.”

One of the statute's principal provisions provides that “the discharge of any pollutant by any person shall be unlawful.”

Liability is strict, and there is no requirement to prove intent or causation.

The terms are defined, and have been interpreted broadly historically:
“The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source,” and

“pollutant” is defined broadly to include “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal and agricultural waste discharged into water . . .".

The Act also provides certain exceptions to its prohibition of “the discharge of any pollutant by any person.”

Principally, Section 1342(a) authorizes the Administrator of the EPA to “issue a permit for the discharge of any pollutant.”

The 1980s

Throughout the 1980s -- after the regulatory push and judicial challenges had progressed, and discharge permits had been issued to the industrial dischargers and to publicly owned sewage treatment plants -- the Environmental Enforcement Section brought Clean Water Act enforcement actions principally against permitted dischargers for violating the pollutant limits in their permits. Again, the investigation of the violations proved to be straightforward at the outset:

The information gathering provisions of EPA’s permit regulations required regular self-reporting of pollutant levels for permitted dischargers, making the identification and proof of violations a matter of little dispute.

The enforcement actions sought penalties for the non-compliance (discharges in excess of permitted pollutant limits) and the implementation of measures or additional treatment technology, or both, to bring the discharges in line with the pollution limits prescribed in the permits.

Enforcement Actions Against Publicly-Owned Sewage Treatment Plants. One category of dischargers received heightened enforcement attention from the inception of modern Clean Water Act enforcement – publicly owned sewage treatment plants –owned in some fashion by our municipalities. Enforcement was focused in a concerted fashion in the late 1980s on bringing all municipal systems up to the same level of sewage treatment, called “secondary treatment” prior to discharging into waters. Cases against such large municipalities as Washington, DC, Philadelphia, Boston, Miami, St. Louis, Denver, San Diego, and many medium to small communities, occupied many enforcement resources throughout the late 1980s to early 1990s.

Industrial dischargers were also the subject of many actions in that same time period, but not in a concerted or categorical fashion. Instead, particular industrial facilities became the subject of federal Clean Water Act enforcement if they were a significant non-complier and the state permit authority had not been able to, or had declined to, address the polluters’ violations effectively. U.S. v. Smithfield Foods, Inc. (E.D. Va.) was a notorious example of the polluter conduct as well as of the failure to address the non-compliance by the state permit issuing authority.

Federal enforcement of industrial dischargers remains an important component of Clean Water Act enforcement today, often with the state permit authority as a partner in the enforcement action. The federal enforcement continues to this day, but with a more focused approach to warrant the use of federal resources. The multi-million dollar resolution of U.S. v. Massey Energy Company (S.D. W. VA.) in 2008 -- a discharger in Kentucky, West Virginia, and Pennsylvania -- provides an excellent current example.

1990 --- Oil Pollution Act

The late 1980s brought another area of Clean Water Act enforcement into the limelight, as can so often happen, by a catastrophic incident. The Oil Pollution Act of 1990 (OPA) amended the Clean Water Act’s prior enforcement provisions applicable to oil spills, following the 1989 Exxon Valdez grounding and disastrous oil spill. Congress enacted the OPA in 1990 to prevent future spills and strengthen the response to spills.

The OPA increased the penalties and other consequences of a discharge into waters. (Civil judicial penalties of up to $25,000 per day of violation or $1,000 per barrel or unit discharged, or in the event of gross negligence or willfulness, $3,000 per barrel or unit. With inflation adjustments, the current amounts are $32,500 per day, or $1,100 per barrel or unit; $4,300 per barrel in the event of gross negligence or willfulness.) The stronger OPA enforcement tools affected the Section’s efforts to deter oil spills, particularly involving transportation pipelines for natural gas and oil.

In 2000, the Section sued and collected record breaking OPA penalties involving the Colonial Pipeline’s 5000 mile Texas-to-New Jersey pipeline. The court imposed a $30 million penalty and ordered comprehensive injunctive relief in U.S. v. Colonial Pipeline Company (N.D. Ga.).

In 2003, the Section obtained injunctive relief covering 2100 miles of Shell Pipeline Company’s pipeline and the entirety of Olympic Pipeline’s 400-mile system in U.S. v. Olympic Pipeline Co. (W.D. Wash.) after a disastrous explosion.

These high visibility matters prompted Congress and the Department of Transportation to address pipeline safety and environmental protection under the Pipeline Safety Act and regulations, spawning a new area for enforcement and another significant penalty action, U.S. v El Paso Natural Gas Company (D. N.M.).

Mid 1990s --- Renewed Emphasis on Municipal Sewer Systems.

By the mid 1990s, the Section’s enforcement of Clean Water Act efforts followed several areas of pollution which were impairing the ability to achieve the goal of the Clean Water Act, despite 15 years of individual direct discharger enforcement. The focus turned back to the municipalities, whose contribution of untreated or partially treated sewage to our nation’s waters was measurably affecting water quality throughout the United States. The cause was aging infrastructure of the sewage collection systems – the inability of the sewer pipes to convey sewage and excessive rain water reliably to the upgraded sewage treatment plants, or the inability to handle all that flow at those plants.

The cases were often brought in wet weather areas experiencing population growth, and sprawling suburbs such as Atlanta, Los Angeles, Honolulu, Boston, Miami, Cincinnati, and Toledo. The fix for these municipalities was extremely expensive and would extend out over a dozen years or more. Only with the tool of a federal enforcement action, and a judicial consent decree mandating that the expense be undertaken on a strict time table, would these massive public projects be undertaken and the necessary water quality improvements be obtained.

21st Century --- Enforcement Actions Targeting Contaminated Storm Water Run Off from Large Scale Construction

The 21st century in Clean Water Act enforcement has taken on another source of impairment to water quality, not from industry, not from municipalities, but the result of a booming economy around the turn of the century -- runoff of sediment-laden storm water from large scale construction projects. The Section has brought Clean Water Act actions for construction-caused storm water discharges against Wal-Mart, Target, Pulte, Centex, KB Homes, Richmond Homes, and many smaller developers.

The measures to lessen the impact on waters from construction activity are simple, basic and inexpensive, but implementing the measures requires oversight, company time and attention, and a commitment to the task. The Section’s flurry of Clean Water Act enforcement against the most visible violators, and twice against Wal-Mart, has heightened awareness of the obligations, the consequences of non-compliance, and the real benefits of undertaking the measures to avoid contaminated storm water runoff.

As the Enforcement Section looks forward, federal enforcement under the Clean Water Act is a mature and established part of the Section’s docket. The objective to “restore and maintain “the integrity of the Nation’s waters has not yet been achieved, although significant and measurable progress has been made in the 25 years of enforcement under the amended Act. Only with continued federal enforcement to bring municipalities into compliance with the Clean Water Act requirements for its collection systems, to abate contaminated storm water runoff, to deter oil spills, and to address large scale industrial dischargers, will the enforcement program maintain its important role in meeting the goals of the Act.

Updated January 30, 2024