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Publication #FE770

The Florida Agricultural Handbook of Solid and Hazardous Waste Regulation: Clean Water Act (CWA)1

Michael T. Olexa and Ian Goldfarb2

What is the Clean Water Act (CWA)?

The purpose of the Clean Water Act (CWA) is to maintain and restore the quality of the waters of the United States. The definition of waters is broad, and includes all waters subject to tidal movements, reaching between states, or used in interstate or foreign commerce. These include the following

  • territorial seas and larger bodies of water, lakes, streams, rivers, ponds, and other small water bodies if they have even a remote potential to affect interstate commerce or people involved in interstate commerce

  • wetlands, which are generally defined as lands that are covered periodically with enough water to support vegetation adapted to a wetlands environment

Primarily through its discharge permitting requirements, the statute limits the amounts of pollutants that may be released into these waters in an attempt to keep the water safe for swimming and other human uses, as well as for fish and aquatic life. The statute also provides for the cleanup of oil spills through a revolving fund managed by the United States Coast Guard (USCG).

Who enforces CWA?

The Environmental Protection Agency (EPA) enforces the general provisions of CWA, but dredge-and-fill permitting is enforced by the United States Army Corps of Engineers (USACE). EPA has established national standards for the maximum amount of pollutants that may be released under its permits. States are authorized to establish their own standards for allowable levels of pollutants, as long as such standards are at least as strict as those mandated by EPA. EPA may also delegate permitting authority to the state. Currently, Florida has been delegated enforcement of only portions of CWA, but National Pollutant Discharge Elimination System (NPDES) permitting is still conducted by EPA.

What is the National Pollutant Discharge Elimination System (NPDES)?

The National Pollutant Discharge Elimination System (NPDES) permit program is the main avenue for the enforcement of the Clean Water Act (CWA). The NPDES permit program controls water pollution by regulating point sources that discharge pollutants into U.S. waters.

NPDES permits specify

  • the amount and concentration of pollutants the holder is authorized to discharge;

  • schedules directing when compliance must be achieved;

  • the requirements for testing, and monthly or quarterly reporting to the permitting authority.

What is a point source?

The statute requires anyone who discharges waste by a point source to have a permit. A point source is any specific, confined, and measurable place from which a pollutant is or may be discharged. A good example of a point source is a pipe that is discharging pollutants. Other examples include

  • a ditch;

  • a container being rinsed of pesticides;

  • any other source that may release a pollutant into a specific area.

Agricultural stormwater discharges and return flows from irrigated agriculture are specifically excluded from being considered point sources.

What is a nonpoint source?

Nonpoint source pollution does not have a single identifiable source; rather, it is a collection of diffuse sources such as agricultural runoffs, stormwater discharges, and return flow from agricultural irrigation systems.

How does CWA address nonpoint sources?

The CWA was amended in 1987 to establish the Nonpoint Source Management Program (CWA Section 319). Section 319 created a grant program to provide funding for states to administer nonpoint source pollution education and monitoring projects.

How do NPDES permits work?

NPDES permits impose two types of limitations on point-source polluters:

  1. Technology-Based Effluent Limitations – limits on the contents of the effluent based upon the available treatment technology

  2. Water-Quality-Based Effluent Limitations – based upon the water-quality standards established for the water body (including groundwater) into which the discharge takes place

What substances may not be discharged under NPDES?

The NPDES prohibits any discharge of oil or specified hazardous substances into navigable waters. The list is long and cannot be included in this handbook. You should contact EPA with questions about disposing any toxic waste into waters of the United States (FE786, Contact Agencies; http://www.epa.gov/owow/oceans/regulatory/mprsa/whatsallowed.html).

What about dredge-and-fill?

The CWA requires separate permits for the discharge of dredge-and-fill material into navigable waters or wetlands. Dredge-and-fill permits are issued by the United States Army Corps of Engineers (USACE), but EPA has a veto power over USACE-issued permits. EPA may enforce permits issued by the USACE, as well as those permits issued by a state where the permitting authority has been delegated to that state (http://www.epa.gov/owow/oceans/regulatory/mprsa/whatsallowed.html; http://www.epa.gov/owow/wetlands/pdf/reg_authority_pr.pdf).

Normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices are generally exempted from dredge-and-fill permitting. However, to qualify for exemption, discharge dredge-and-fit materials must be part of an established agricultural operation, so you should check with the USACE if you have any doubts.

What about accidental discharges (spills)?

The statute requires that all spills entering U.S. waters be reported immediately if the amount spilled is greater than the individual "reportable quantities" that EPA has specified for each of some 300 designated hazardous substances. Quickly reporting spills to the National Response Center (FE786, Contact Agencies) insulates you from criminal prosecution but not from civil liability.

What are the penalties under CWA?

The amount of criminal liability under the statute depends on whether the violator was

  • negligent, and thus subject to fines up to $32,500 per day and one year in prison;

  • knowing of his violation, and thus subject to fines up to $50,000 per day and three years in prison;

  • knowing that his violation places others in serious, imminent danger, and thus subject to fines up to $250,000 and 15 years in prison, or up to a $1,000,000 fine for a corporation.

All these penalties may be doubled for subsequent violations and some may be greater for corporations. Injunctive relief (which forces violators to cease polluting by court order) or other court-ordered relief is also available.

The statute also provides for civil and administrative penalties of up to $32,500 per day for each violation of the statute or NPDES permit.

Are there any exemptions for pesticides under CWA?

A Clean Water Act (CWA) permit will not be required when application of a particular pesticide to, over, or near waters of the United States is consistent with FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act) so long as it also falls into one of two categories:

  1. The application of pesticides directly to U.S. waters to control pests (e.g., controlling mosquito population, aquatic weeds, or other pests that are present in U.S. waters

  2. The application of pesticides to control pests that are present over U.S. waters, where a portion of the pesticides unavoidably will be deposited to U.S. waters to best target the pests in the most effective manner (e.g., when insecticides are applied aerially to a forest canopy where U.S. waters may be present below the canopy, or when pesticides are applied over or near water for control of adult mosquitoes or other pests

Footnotes

1.

This is EDIS document FE770, a publication of the Food and Resource Economics Department, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. Published November 2008. Please visit the EDIS website at http://edis.ifas.ufl.edu.

Disclaimer: This handbook is distributed with the understanding that the authors are not engaged in rendering legal or other professional advice and that the information contained herein should not be regarded or relied upon as a substitute for professional advice. This handbook is not all-inclusive in providing information to achieve compliance with laws and regulations governing the practice of agriculture. For these reasons, using these materials constitutes an agreement to hold harmless the authors, the Center for Agricultural and Natural Resource Law, the Institute of Food and Agricultural Sciences, and the University of Florida for any liability claims, damages, or expenses that may be incurred by any person or party as a result of reference to or reliance upon the information contained in this handbook.

2.

Michael T. Olexa, professor, Food and Resource Economics Department; director, Center for Agricultural and Natural Resource Law, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL; and member, Florida Bar and Agricultural Law Committee of the Florida Bar; and Ian Goldfarb, graduate student, Levin College of Law and Hough Graduate School of Business, University of Florida, Gainesville, FL.

The Institute of Food and Agricultural Sciences (IFAS) is an Equal Opportunity Institution authorized to provide research, educational information and other services only to individuals and institutions that function with non-discrimination with respect to race, creed, color, religion, age, disability, sex, sexual orientation, marital status, national origin, political opinions or affiliations. For more information on obtaining other extension publications, contact your county Cooperative Extension service.

U.S. Department of Agriculture, Cooperative Extension Service, University of Florida, IFAS, Florida A. & M. University Cooperative Extension Program, and Boards of County Commissioners Cooperating. Millie Ferrer-Chancy, Interim Dean.