Water Quality Kickers Flashcards
3 Steps for Water Q Kickers
1- reduce point source discharge as much as possible based on series of tech-based effluent limitations
2- determine if point source reduction sufficient to meet state/tribal water q standards
3- reduce point source and nonpoint sources as necessary to achieve state/tribal water q standards
Challenges and Controversy
- hostile, powerful econ interests
- indiv behavior
- scientific uncertainty
- conflicting sovereign interests
- absence clear statute language authorizing fed regulation of nonpoint sources (land use)
Water Q Standards - Relevant Statutory Provisions
- 303 - Water quality standards and implementation plans
- 304 - information and guidelines
Section 304
- Administrator develops and publishes criteria for water quality
- giving guidance instead of telling states what to say -> guidance reviews effects on health and welfare expected from certain pollutants in various concentrations
Section 303
- state submits standards to EPA
- EPA has power to approve or disapprove state standards (more likely to guess water quality criteria than chosen uses of nav waters though)
What is a water quality standard?
Includes:
- designated uses of the navigable waters involved
- water quality criteria for such nav waters based on their uses
Standards shall be such as “to protect the public health or welfare, enhance the quality of water and serve the purposes of this Act”
Nondegradation Limit
- EPA regulatory requirement
- states have a lot of discretion on uses, but they can’t take a really high quality water and pollute it
Section 303(d)(1)
- state needs to identify waters for which the effluent limitations aren’t strong enough (wherever you’re failing to meet the water quality standards through tech alone)
- needs to set total maximum daily load (TMDL) for certain pollutants in those waters
- Administrator can disagree with states on this front and insist on different TMDLs as necessary to meet the water q standards
Section 303(e)
- says each state needs to have a continuing planning process
- similarish to SIPs, but not nearly as formalized
- planning process needs to include effluent limitations and schedules of compliance, at least as stringent as necessary to comply with the tech provisions and the water quality standards
- also needs to set out the TMDLs
- needs to include adequate implementation
Section 319 Nonpoint Source Program
- state needs to identify nav waters that without more action to control nonpoint source pollution can’t be expected to attain or maintain applicable water q standards
- need to identify categories + subcategories of nonpoint sources, describe process for identifying best management practice, + identify + describe state and local programs for controlling nonpoint source pollution
Section 401
- fed gov/ federally permitted activities intrastate need to comply with state water q standards -> important b/c means the 402 permits need to comply with state water q standards
- state can insist that its water q standards are met by any federally licensed activity -> can veto permits given to sources in other states
Arkansas v. Oklahoma - Qs
- 1992
- does CWA require EPA to apply water q standard of downstream states when crafting + issuing a permit to point source in one state?
- if act doesn’t require it, does EPA have discretion to mandate it?
- does CWA provide that once a body of water fails to meet water q standards no discharge that yields effluent that reaches the degraded waters will be permitted?
Arkansas v. Oklahoma - Holdings
-decides not to answer the first q of whether the statute requires it (“neither necessary nor prudent”)
- EPA def has authority to interpret that states need to meet downstream water q standards
- OK doesn’t get to say its standards have been violated though - only EPA can make this determination
State Permits vs. Fed Permits
- state can take over the 402 permitting program -> if it does this, the permits are no longer federal licenses, and the downstream states lose the veto power just when they’d theoretically need it most
-> in this case, downstream advisory role only - vs. in federally issued permit, downstream water q standards must be met
EPA RESOLUTION- has decided by regulation that you need to comply with downstream standards for 402 permit regardless of whether issued by state or fed gov
PUD No 1 of Jefferson County v. Washington Department of Ecology - Q Presented
Whether Section 401 of the Clean Water Act requires that a federally-licensed hydroelectric facility meet a State’s minimum instream flow requirements to meet the State’s water quality standards
