Water Pollution Flashcards
1
Q
Significance of Water
A
- specific heat - can absorb a TON of heat (super important for power plants)
- specific gravity - can float stuff (transport)
- most of US freshwater gets used for irrigation (42%) and by power plants (34%)
2
Q
Rivers and Harbors Act of 1899
A
- makes it unlawful to obstruct navigable waters (b/c very important for commerce)
- Section 13 - Refuse Act - says can’t discharge refuse into navigable waters + created permit program for discharge of refuse
- in the 1960s, people start thinking maybe could apply this to pollution
3
Q
Conditions Leading to CWA
A
- there are provisions in the Refuse Act that allow you to enforce the law and keep half the fines (qui tam, common law remedy) -> people started doing this in the late 60s, and industry wanted a permit program to protect themselves
- bipartisan group pushed for very tough legislation -> Nixon vetoed -> Congress overrode the veto in October 1972
4
Q
Major Point Sources
A
- municipal sewage treatment plants
- industrial facilities
- combined sewer overflows
5
Q
Major Nonpoint Sources
A
- agricultural runoff
- urban runoff
- construction runoff
- mining runoff
- septic systems
- landfills/spills
- silviculture runoff
6
Q
CWA Section 101
A
- very ambitious goal - fishable/swimmable waters by 1983 and elimination of pollution discharges into navigable waters by 1985 (has not happened)
7
Q
CWA Section 301
A
- “discharge of any pollutant by any person shall be unlawful” unless you get a permit through 402 or 404 or you’re allowed under some other section of the act
- this section also imposes multi-tiered effluent limitations on existing sources whose stringency and timing depends on nature of pollutant discharged and whether the outfall is directed to a water body or publicly owned treatment works (POTW)
8
Q
Section 402
A
- establishes national permit program - National Pollution Discharge Elimination System (NPDES)
- administered by EPA
- covers all pollutants except dredged and fill material
9
Q
CWA Section 404
A
- US Army Corps of Engineers adminsters
- permit program for discharge of dredged or fill material
- gets carved out b/c of Rivers and Harbors Act (Corps keeps its authority over navigable capacity)
10
Q
Navigable Waters - Definition
A
- defined in Section 502 of CWA
- “waters of the United States, including the territorial seas”
- major q of whether or not this includes tributaries (pollutants go into tributaries)
11
Q
Navigable Waters - Legislative History
A
- reflects that nav waters was intended to have its broadest constitutional meaning possible -> q then becomes what is the broadest constitutional meaning
- does specifically mention tributaries as covered in report from the Senate Committee
12
Q
Navigable Waters - Commerce Clause
A
- fits under both channels of commerce (physical) and affecting interstate commerce (water affects economics)
13
Q
Possible Levels Covered Under Navigable Waters
A
1 - traditional navigable waters
2 - waters with physical nexus/proximity to navigable waters
3- waters the use or destruction of which affects interstate commerce
(think increasingly subject to debate as you move down the list)
14
Q
What falls under traditional navigable waters?
A
- navigable in fact
- expanded: susceptible to navigation, navigable in the past, intrastate lakes when combined with other forms of transportation (ex railroads, highways)
15
Q
What falls under physical nexus/proximity to navigable waters?
A
- nonnavigable tributaries of NW
- adjacent NW
- adjacent nonnavigable tributaries of NW
- hydrologic connection to NW
16
Q
What falls under waters the use or destruction of which affects interstate commerce?
A
- based on recreational use, industrial use + commercial use
- includes isolated lakes + wetlands, intermittent streams, prairie potholes, + other waters that are not part of a tributary system to interstate waters or to navigable waters of the U.S., the degradation of which could affect interstate commerce
17
Q
NRDC v. Callaway
A
- 1975
- Corps of Engineers had tried to have its own regs that said navigable waters only covered traditional navigable waters
- D.C. District Court rules against them - says EPA gets to decide how to interpret nav waters
- EPA says will cover all three options, but will address them in phases
18
Q
U.S. v. Riverside Bayview - Facts and Procedural Posture
A
- there was an area 1 mile from Lake St Clair that was originally a wetland but had been farmed in the past and was going to be developed into a subdivision -> Corps said nav waters
- 1984 - the 6th Circuit ruled nav waters didn’t cover this
19
Q
US v. Riverside Bayview - SCOTUS Decision
A
- upholds EPA and Corps 9 to 0
- says reasonable construction under Chevron
20
Q
Riverside Bayview - Reasoning
A
- Corps regulations - don’t need frequently flooding by navigable waters, just need “saturation by either surface or ground water” to be a wetland, “provided that the saturation is sufficient to and does support wetland vegetation” -> SCOTUS says the property is a wetland under Corp regs -> q becomes is the reg valid (does describe it though as a wetland “adjacent to but not regularly flooded by” waters)
- Invokes Chevron + “language, policies, and legislative history of the Act”
- excluding wetlands automatically as lands rather than waters = “simplistic” - need to look at “realities of the problem of water pollution that the CWA was intended to combat” + also difficulty of deciding where water ends and land begins
- “term ‘navigable’ as used in the Act is of limited import” (def indicates Congress intended to repudiate traditional limits)
- breadth of congressional concern means Corps interpretation reasonable
- “holds true even for wetlands that are not the result of flooding or permeation by water”
21
Q
Riverside Bayview - Limitations
A
- “Because respondent’s property is part of a wetland that actually abuts on a navigable waterway, respondent was required to have a permit in this case”
- Footnote 8 - explicitly says court not called upon authority of Corp to regulate discharge into wetlands NOT adjacent to bodies of open water
22
Q
Commerce Clause Hurdles for Federal Environmental Laws
A
- objectives of law not necessarily characterized in terms of economic objectives or economic activities
- existing statutes focus on adverse environmental impact of regulated activities & not on their economic character
- almost all regulated activities in fact traceable to commercial motivation, but not all
- regulated activities include those lacking substantial effect on interstate commerce absent “broad aggregation”
23
Q
SWANCC - Facts and Procedural Posture
A
- sand and gravel pit on the edge of the city of Chicago
- overgrown vegetation
- initial Corp determination no jurisdiction
- subsequent Corp determination jurisdiction based on migratory birds
political influence (senator with lots of power had gotten involved + prompted the change) - 7th Circuit rules in favor of the Corps but SCOTUS grants review (environmentalists try to broker a deal, but it falls through)
24
Q
SWANCC - SCOTUS
A
- 2001
- origin of the “significant nexus” test - says “it was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview Homes.”
- picks up on the footnote + says didn’t address q of what happens with wetlands not adjacent to open bodies of water
- shuts down idea that nav waters could include “isolated waters” (particularly non-navigable + intrastate)
- Bayview had basically read navigable out of the statute, but SWANCC puts it back in (says navigable should have independent significance)
- q of whether any of phase 3 remains after SWANCC
