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This Article reviews the history of CWA Section 401 and finds that it supports affording EPA’s newest interpretive rule Chevron deference. The CWA Section 401 Water Quality Certification Improvement Rule serves as an important case study of the doctrine which faces mounting criticisms and two cases challenging its legality in the Supreme Court at the time of this publication. Although its application delegates lawmaking authority to unelected officials who change policies with the tides of each election, this delegation has been necessary in many areas of the law due to Congress’s failure to act in recent years. Instead of simply surrendering the interpretation of ambiguous statutes to the judiciary, CWA Section 401 exemplifies the determination of deference owed to an agency’s interpretation through a close analysis of Congress’s intent, the agency’s previous actions, and the statutory language itself. Without addressing the merits of challenges to Chevron deference or predicting their outcomes, this Article reviews the legislative, rulemaking, and judicial history of CWA Section 401 and concludes that its history supports deference to the new rule when it is challenged in court. [ABSTRACT FROM AUTHOR]

Nonpoint source pollution, such as agricultural pollution, accounts for most of the pollution that currently impairs waterways in the United States. The Clean Water Act, however, largely leaves regulation of this type of pollution to state management and regulation. This leads to a patchwork of differing water quality standards and control methods throughout the country. This patchwork effect is detrimental when waterways flow downstream from one state into the next. Thus, an interstate problem requires an interstate solution. Although the Clean Water Act typically requires minimal collaboration between states for management of nonpoint source pollution, the Third Circuit's decision in American Farm Bureau Federation v. EPA affirmed the use of total maximum daily loads ("TMDL") for watershed level pollution. The creation of the 2010 Chesapeake Bay TMDL was the first large-scale attempt at using multijurisdictional TMDLs to reduce water pollution in interstate waterways. The Chesapeake Bay TMDL, however, has seen disputes and challenges. This type of TMDL has yet to be recreated because of the unique legislative and political forces that aligned for its creation. As a solution, multijurisdictional TMDLs should be incorporated into interstate compacts to provide an enforcement mechanism to hold other states accountable for their pollution reduction. With nonpoint source pollution knowing no boundaries, there must be a more effective method to ensure neighboring states will implement appropriate water pollution reduction controls. Interstate compacts offer a way for states to enhance the strength of their TMDL agreements by incorporating enforcement and reducing unnecessary federal intrusion. [ABSTRACT FROM AUTHOR]

The article informs about several court cases with emergent trends in environmental law and legal profession of Minnesota lawyer. Topics include court case New York State Dep't of Env't Conservation, et al. v. Fed. Energy Regul. Comm'n, which claims for determination on the Clean Water Act when reviewing Section 401 water quality for natural gas projects; and court case Minnesota v. Am. Petroleum Inst., which claims for the scientific consensus linking fossil fuel emissions to climate change.

Nonpoint source pollution is the biggest threat to water quality in the United States today. This Article argues for stronger federal controls over nonpoint source pollution. It begins by examining the history of water quality regulation in the United States, including the passage and amendment of the Clean Water Act and the evolving definition of "navigable waters over time. The Article then discusses recent rulemaking and litigation developments, including the Clean Water Rule, the Navigable Waters Protection Rule, and the County of Maui, Hawaii v. Hawaii Wildlife Fund case. It offers three recommendations. First. the Article calls for a congressional amendment to the Clean Water Act to require binding controls on nonpoint source pollution. Second, recognizing that an amendment to the Clean Water Act may not be politically viable, it offers an approach for controlling nonpoint source pollution through an amendment to the Safe Drinking Water Act. Finally. it identifies tools that interested states, local governments, and citizens' groups can utilize to take action on nonpoint source pollution under existing law. This Article concludes that reductions in nonpoint source pollution will lead to signifcant improvements in the water quality of our nation's lakes, rivers, wetlands, and coastal areas, to the benefit of human and environmental health. [ABSTRACT FROM AUTHOR]

This Note was written in fall of 2018 while the U.S. Environmental Protection Agency's (EPA) "Waters of the United States" (WOTUS) rule was still in effect. Since the Note was accepted for publication, the EPA and the Department of the Army repealed and replaced the WOTUS rule with the "Navigable Waters Protection Rule" on January 23, 2020, which will, in part, categorically exclude groundwater from the scope of the Clean Water Act. 1 As of the date of this Note's publication, the Navigable Waters Protection Rule has not yet been published in the Federal Register and will only take effect 60 days after publication in the Federal Register. While the WOTUS rule will soon no longer be in effect, the Note's analysis according to Fourth Circuit precedent and the EPA rule in effect at the time the Fourth Circuit decided Sierra Club v. Virginia Electric & Power Co. may prove useful for citizens or environmental groups seeking to challenge the adequacy of the Navigable Waters Protection Rule. As such, "the new [Navigable Waters Protection Rule] hardly represents the final word on what qualifies as a jurisdictional 'water of the United States.' . . . Lawsuits challenging the 2019 repeal rule and the 2015 Clean Water Rule are both ongoing." 2 For example, the Senior Attorney Blanding Holman of the Southern Environmental Law Center (SELC) has stated that should EPA finalize the repeal of the 2015 WOTUS rule, the SELC "plan[s] to fight [the EPA and the Department of the Army] with everything [they] have to protect our communities and clean water."3 Most notably, a suite of environmental organizations has already filed a notice of intent to sue the EPA for its "2020 Revised Regulatory Definition of 'Waters of the United States'" rule. [ABSTRACT FROM AUTHOR]

The article examines the economic effect of the provisions of the Clean Water Act in the U.S. Topics mentioned include the assessment of changes in the law regarding tributary, wetlands, and lakes, the difference in the predictability of the rule between U.S. President Donald Trump and former U.S. President Barack Obama, and the role of water quality in the economy.

In the United States, the Clean Water Act (CWA) establishes water quality standards important for maintaining healthy freshwater ecosystems. Within the CWA framework, states define their own water quality criteria, leading to a potential fragmentation of standards between states. This fragmentation can influence the management of shared water resources and produce spillover effects of pollutants crossing state lines and other political boundaries. We used numerical simulations to test the null prediction of no difference in impairment between watersheds that cross political boundaries (i.e. state lines, national or coastal borders, hereafter termed “transboundary”) and watersheds that cross no boundaries (hereafter “internal”). We found that transboundary watersheds are more likely to be impaired than internal watersheds. Further, we examined possible causes for this relationship based on both geographic and sociopolitical drivers. Though geographic variables such as human-modified land cover and the amount of upstream catchment area are associated with watershed impairment, the number and type of agencies managing land within a watershed better explained the different impairment levels between transboundary and internal watersheds. Watersheds primarily consisting of public lands are less impaired than watersheds consisting of private lands. Similarly, watersheds primarily managed by federal agencies are less impaired than state-managed watersheds. Our results highlight the importance of considering Integrated Watershed Management strategies for water resources within a fragmented policy framework. [ABSTRACT FROM AUTHOR]

After one of the most extensive and controversial rulemakings in the history of the Clean Water Act (CWA), featuring over four hundred stakeholder meetings and over a million comments, the Obama Administration adopted the Clean Water Rule (aka "WOTUS") in May 2015. The stated purpose of the rule is to clarify the scope of the term "waters of the United States" consistent with the CWA, Supreme Court precedent, and science. This "clarification" was made necessary by the Supreme Court's muddled decisions in SWANCC (2001) and Rapanos (2006). Attempts to clarify matters though guidance documents issued in 2003 and 2008 were roundly criticized. Attempts to obtain a legislative solution failed to produce results. And so it fell to the agencies-the Environmental Protection Agency and the Army Corps of Engineers-to bite the bullet and promulgate a new rule that was fated to satisfy no one. The scientific basis for the rule rests on a comprehensive, peerreviewed synthesis of over 1,200 studies analyzing the interconnectedness of tributaries, wetlands, and other waters to downstream navigable waters, and effects of these connections on the chemical, physical, and biological integrity of the nation's major waterways. The legal basis for the rule rests in large part on the "significant nexus" test articulated by Justice Anthony Kennedy in his concurring opinion in Rapanos. For the first time the rule defines key terms such as "tributary" and "adjacent waters." It creates three categories of waters: those that are deemed jurisdictional by rule; those that are categorically excluded; and those that require a case-by-case significant nexus determination. The net effect of the rule is to reduce the historic scope of the CWA as interpreted by the agencies and the lower courts in exchange for creating some "bright line" test limiting federal jurisdiction in response to the concerns raised by the Supreme Court in SWANCC and Rapanos. The Trump Administration wants to kill the rule and replace it with one modeled on the late Justice Scalia's plurality opinion in Rapanos. Scalia's test would limit waters of the United States to "relatively permanent" water bodies and wetlands with a "continuous surface connection." According to data in the rulemaking record this would result in a reduction of as much as 60% of the tributaries and wetlands historically covered by the CWA. Led by Administrator Scott Pruitt, the Administration has launched a three-pronged attack on the Clean Water Rule that seeks to delay, rescind, and eventually replace it. This Article will argue that repealing and replacing the Clean Water Rule with one modeled on the Scalia test is not supported by the text, purpose, history, or cooperative federalism policies of the CWA. Nine circuit courts have struggled to make sense of the splintered decision in Rapanos. None have concluded that Scalia's test is controlling. All of them have looked to Kennedy's significant nexus test as the primary test for determining federal jurisdiction. The Clean Water Rule struck an eminently reasonable balance between the CWA's goals of restoring and maintaining water quality while respecting the primacy of state control over land and water resources. Adoption of the Scalia test would reverse over four decades of progress improving the quality of the nation's waters. It is too soon to tell whether the Trump Administration's misguided attempt to scrap the rule will succeed. Years of litigation lie ahead before the issue makes its way back to a Supreme Court that may look very different from the one that decided Rapanos. [ABSTRACT FROM AUTHOR]

When states incompletely monitor or enforce, environmental nonprofits step in. We estimate the impact of these groups on industrial compliance with the Clean Water Act, as well as their effect on government monitoring and enforcement. We geographically link annual panel data on facility inspection rates, pollution violations, and enforcement actions with information about nearby nonprofit watershed groups. In addition to two-stage least squares estimation for endogenous efforts of nonprofits, governments, and firms, we implement a recent advance in nonlinear methods with improved fit for our fractional dependent variables. As the number of nonprofit groups increase, government decreases inspections and firms have fewer severe effluent violations. The nonprofits' oversight substitutes for government efforts by interacting directly with facilities rather than putting pressure on regulatory mechanisms. The interventions by these environmental groups encourage compliance and, based on theory, improve efficiency. [ABSTRACT FROM AUTHOR]

Luo, Y. and Zhang, J., 2017. Application of a load duration curve for establishing TMDL programs upstream of the Tiaoxi River within the Taihu Watershed, China. In: Zhi, Y. and Guido Aldana, P.A. (eds.), Sustainability of Water Resources and the Development of Coastal Environments: Select Proceedings from the 2016 International Conference on Water Resource and Environment (WRE2016). Journal of Coastal Research, Special Issue No. 80, pp. 80-85. Coconut Creek (Florida), ISSN 0749-0208. The impairment of water quality is a major concern for streams and rivers in China. Total Maximum Daily Loads (TMDLs) can be used to establish a framework and propose a series of techniques and tools to assess water quality at the watershed scale. While TMDLs have been developed for water quality management by the U.S. Environmental Protection Agency, scientists and stakeholders, the development of TMDLs in China is hindered due to the lack of comprehensive data collection system and by the difficulties in incorporating seasonal variations efficiently and accurately. In this study, load duration curves (LDCs) were used to calculate TMDLs for ammonia and to quantify the corresponding monthly and seasonal variations in the TMDL. The analysis indicated that the ammonia TMDL was affected by flow patterns, ranging from a maximum of 9418 kg·d−1 in high flow zones to a minimum of 48 kg·d−1 in low flow zones. Seasonally, the TMDL varied from 232 kg·d−1 in spring to 390 kg·d−1 in summer, 110 kg·d−1 in autumn, and 25 kg·d−1 in winter. The monthly load allocation for ammonia was in the range of 3.0 to 18 kg·d−1. The results provide policymakers with quantitative limits of nutrients loadings with seasonal variations which can be used to implement various water quality targets. This approach also provides a convenient way for water quality assessment when current pollution data is available and proposes seasonal targets of total amount control for local EPA implementing refined water quality management strategy under current economic development level and management ability as well as. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Environmental Protection Agency's (EPA's) decision to disapprove water quality standards (WQS) on Indian lands in Maine, and it mentions trust responsibility and authority under the American Clean Water Act (CWA), as well as information about federal interests in fishing rights and water quality in Maine. Tribal agreements with the Maine government are addressed, along with National Pollutant Discharge Elimination System permits.

The United States's Clean Water Act stipulates in section 303(d) that states must identify impaired water bodies for which total maximum daily loads (TMDLs) of pollution inputs into water bodies are developed. Decision-making procedures about how to list, or delist, water bodies as impaired, or not, per Clean Water Act 303(d) differ across states. In states such as California, whether or not a particular monitoring sample suggests that water quality is impaired can be regarded as a binary outcome variable, and California's current regulatory framework invokes a version of the exact binomial test to consolidate evidence across samples and assess whether the overall water body complies with the Clean Water Act. Here, we contrast the performance of California's exact binomial test with one potential alternative, the Sequential Probability Ratio Test (SPRT). The SPRT uses a sequential testing framework, testing samples as they become available and evaluating evidence as it emerges, rather than measuring all the samples and calculating a test statistic at the end of the data collection process. Through simulations and theoretical derivations, we demonstrate that the SPRT on average requires fewer samples to be measured to have comparable Type I and Type II error rates as the current fixed-sample binomial test. Policymakers might consider efficient alternatives such as SPRT to current procedure. [ABSTRACT FROM AUTHOR]

The article focuses on the decision of the U.S. Court of Appeals for the Eleventh Circuit and the district court of Georgia in the cases related to environmental law. The cases discussed include Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers regarding the Nationwide Permit 21 issued under Section 404 of the Clean Water Act (CWA), Riverkeeper v. U.S. Environmental Protection Agency and Altamaha Riverkeeper, Inc. v. Rayonier, Inc. on water quality standards.

To improve quantitative understanding of mixed-land-use impacts on nutrient yields, a nested-scale experimental watershed study design ( n = 5) was applied in a 303(d), clean water act impaired urbanizing watershed of the lower Missouri River Basin, USA. From 2010 to 2013, water samples ( n = 858 sample days per site) were analysed for total inorganic nitrogen (TIN-N), nitrite (NO2-N) nitrate (NO3-N), ammonia (NH3-N), and total phosphorus (TP-P). Annual, seasonal, and monthly flow-weighted concentrations (FWCs) and nutrient yields were estimated. Mean nutrient concentrations were highest where agricultural land use comprised 58% of the drainage area (NH3 = 0.111 mg/l; NO2 = 0.045 mg/l; NO3 = 0.684 mg/l, TIN = 0.840 mg/l; TP = 0.127 mg/l). Average TP-P increased by 15% with 20% increased urban land use area. Highly variable annual precipitation was observed during the study with highest nutrient yields during 2010 (record setting wet year) and lowest nutrient yields during 2012 (extreme drought year). Annual TIN-N and TP-P yields exceeded 10.3 and 2.04 kg ha−1 yr−1 from the agricultural dominated headwaters. Mean annual NH3-N, NO2-N, NO3-N, TIN-N, and TP-P yields were 0.742, 0.400, 4.24, 5.38, and 0.979 kg ha−1 yr−1, respectively near the watershed outlet. Precipitation accounted for the majority of the explained variance in nutrient yields ( R2 values from 0.68 to 0.85). Nutrient yields were also dependent on annual precipitation of the preceding year ( R2 values from 0.87 to 0.91) thus enforcing the great complexity of variable mixed-land-use mediated source-sink nutrient yield relationships. Study results better inform land managers and best management practices designed to mitigate nutrient pollution issues in mixed-land-use freshwater ecosystems. Copyright © 2015 John Wiley & Sons, Ltd. [ABSTRACT FROM AUTHOR]

In Sierra C lub v. ICG Hazard, the Sixth Circuit held that a general permit holder is only liable for discharges expressly prohibited by his/her permit terms as long as 1) he/she adequately disclosed other discharges and 2) the permitting agency reasonably contemplated those discharges at the time the permit was issued. ICG Hazard was the first time that a court of appeals had ever considered how the permit shield provision should apply in the general permit context. This Note discusses why extending the permit shield to discharges under general permits would result in detrimental environmental consequences against which the Clean Water Act is meant to protect. It then offers alternative legal avenues that environmental plaintiffs can take to ensure permittees respect state water quality standards. [ABSTRACT FROM AUTHOR]

Legal protection of the USA's water resources was reduced during the Bush-Cheney Administration (2000-2008), facilitating coal, oil, and gas development at the expense of clean water. The 'Halliburton Loophole' in the 2005 Energy Act exempted all oil and gas development activities, including fracking (hydraulic fracturing), from the Clean Water Act, Clean Drinking Water Act, and other federal statutes. Two U.S. Supreme Court rulings weakened the Clean Water Act's protections of headwaters, streams, wetlands, and other water bodies. In New York State, communities faced with the imminent prospect of fracking by energy companies organized. From 2008-2014, they prevented fracking in New York. Water protection played a major role in energizing community response, In 2015, a fragile, but resilient, ban was declared statewide. In Kentucky, 150 years of coal mining resulted in pollution of many waterways, with hundreds of stream miles buried beneath mountaintop removal debris. Kentuckians have been pushing back since the 1930s to protect communities, farms, and water quality. They remain hopeful in the face of great odds. Urban populations making daily use of cheap, clean water and fossil-fuel-powered energy sources have little knowledge of these struggles. In rural America, the fight to protect communities, lands, and waters from energy exploitation is lifelong. [ABSTRACT FROM AUTHOR]

The article focuses on the implementation planning of total maximum daily load (TMDL) for controlling the water pollution and the states must prepare TMDLs for water bodies that do not meet water quality standards under the U.S. Clean Water Act. It mentions that the U.S. Environmental Protection Agency (EPA) must take measure for the implementation of TMDL. It also mentions that EPA also started the National Pollutant Discharge Elimination System for water pollution prevention.

The article focuses on the need of inter-agency collaboration and public engagement for the development of implementation plan for the Lake Champlain Phosphorus total maximum daily load (TMDL) prepared by Vermont and New York. It mentions that pollutant reduction targets from a range of sources to achieve state water quality standards under the Clean Water Act (CWA). It mentions that U.S. Environmental Protection Agency (EPA) and the accountability framework used for tracking implementation.

Information on topics discussed at a workshop related to water reuse policies held in Singapore from June 15-16, 2015. Topics discussed include the impact of the climate change to the water supply, the feasibility and safeness of the reuse of treated wastewater (TWW), and the U.S. regulations related to the water quality standards such as the Safe Drinking Water Act (SDWA) and the Clean Water Act (CWA).

The objective of this study was to identify the current status of stream water-quality assessment and reporting methods for four states in the Ohio River basin (Indiana, Ohio, Tennessee, and Virginia), as required by the 305(b) section of the United States (US) Clean Water Act. Specifically, we clarified the discrepancies that exist among stream-impairment status classified by benthic macroinvertebrate multimetric indices (MMIs) and depicted using Geographic Information Systems shapefiles. In addition, we provided guidance in solving some of the comparability problems that arise when developing state-specific MMIs and depicting stream-impairment status using Geographic Information Systems technology. The MMI variation among states and differences in shapefile formats resulted in a nationwide dataset, which cannot be directly compared. Incorporating the changes suggested in this study allow for a uniform assessment and reporting method nationwide. Successful implementation of these changes would strengthen the US Environmental Protection Agency efforts to identify impaired streams and sources of those impairments without the limitations of state-by-state .developed assessment methods. [ABSTRACT FROM AUTHOR]

A numerical water quality criterion in the U.S. consists of three components representing magnitude, duration, and frequency. While magnitude and duration are well defined and conceptually unambiguous, the meaning of the frequency component is often debatable. We interpret the frequency component as a tool for accounting for uncertainty in estimating the mean concentration of a water quality constituent, after revisiting early works on environmental standards and criteria. Based on this interpretation, we illustrate management-related issues when using the default frequency of one exceedance in 3 years in compliance assessment. We propose a data-driven approach for estimating an appropriate frequency to ensure a consistent level of confidence in a water's compliance of a water quality criterion. The data-driven frequency is determined by water quality constituent concentration distribution characteristics and sample size. The method is illustrated using two examples. [ABSTRACT FROM AUTHOR]

ABSTRACT Under the terms of the Clean Water Act, criteria for the protection of human health (Human Health Ambient Water Quality Criteria [HHWQC]) are traditionally derived using equations recommended by the US Environmental Protection Agency (USEPA) that include parameters for exposure assessment. To derive 'adequately protective' HHWQC, USEPA proposes the use of default values for these parameters that are a combination of medians, means, and percentile estimates targeting the high end (90th percentile) of the general population. However, in practice, in nearly all cases, USEPA's recommended default assumptions represent upper percentiles. This article considers the adequacy of the exposure assessment component of USEPA-recommended equations to yield criteria that are consistent with corresponding health protection targets established in USEPA recommendations or state policies, and concludes that conservative selections for exposure parameters can result in criteria that are substantially more protective than the health protection goals for HHWQC recommended by USEPA, due in large part to the compounding effect that occurs when multiple conservative factors are combined. This situation may be mitigated by thoughtful selection of exposure parameter values when using a deterministic approach, or by using a probabilistic approach based on data distributions for many of these parameters. Integr Environ Assess Manag 2015;11:298-305. © 2014 SETAC [ABSTRACT FROM AUTHOR]

The article talks about application of adaptive management to nutrient trading programs to satisfy needs of policy makers responsible for improving water quality. Topics include water pollution within the context of the U.S. Clean Water Act, focus on water quality trading by the U.S. Environmental Protection Agency (EPA), and lack of specificity regarding how to apply management.

This Article introduces readers to the recent U.S. Supreme Court decision in Decker v. Northwest Environmental Defense Center, a Clean Water Act citizen suit seeking to limit discharges of heavily polluted stormwater from industrial logging roads in Oregon's Tillamook State Forest. The author explains the impetus for the litigation and how the Supreme Court and court of appeals decisions correct a longstanding error of law, finally opening a path for conservation-minded citizens to obtain better programs to protect water quality and aquatic species from logging road pollution. [ABSTRACT FROM AUTHOR]

The article focuses on the U.S. Environmental Protection Agency (EPA) sent a letter to the Minnesota Pollution Control Agency (MPCA) identifying 30 Minnesota waters that EPA determined to be impaired under Minnesota's controversial Class 4A 10 for sulfate water quality standard. It mentions EPA partially disapproved MPCA's Clean Water Act (CWA) for still requiring Total Maximum Daily Loads. It also mentions MPCA's decision for impaired for the wild rice sulfate standard (WRSS).

The article focuses on the regulations and legislations regarding management of manure nutrients in the U.S. An overview of the existing regulations, pending legislations and strategies with a greater focus on manure nutrient disposition including the Clean Water Act, Coastal Zone Act, and Safe Drinking Water Act for livestock nutrient management is offered. Proposed legislations and strategies and challenges facing livestock operators regarding management of manure nutrients are also noted.

The article focuses on water quality and its history. Among the topics discussed include Water Quality Act that require state-set water quality standards to be a law in 1965, National Environmental Policy Act and Clean Water Act, and aquatic toxicology. It highlights Water Quality Section (WQS) that started in 1977.