Clean Water Act (Sections 401, 402, 404)
The Federal Water Pollution Control Act, as amended by the Clean Water Act (CWA) of 1977, was enacted with the intent of restoring and maintaining the chemical, physical and biological integrity of the waters of the United States. The Act established a number of requirements, prohibitions and programs to achieve this end, as described below. The agency having regulatory authority over the Clean Water Act is the Environmental Protection Agency (EPA).
Section 401 – Water Quality Certification
Section 401 of the Clean Water Act requires that any applicant for a federal permit to conduct any activity, including the construction or operation or a facility which may result in the discharge of any pollutant, must obtain certification of those activities from the state in which the discharge originates.
Section 402 – NPDES Regulations
Section 402 of the Clean Water Act established the National Pollutant Discharge Elimination System (NPDES) to regulate the discharge of pollutants from point sources. The NPDES permit program is administered by the U.S. Environmental Protection Agency (EPA) and the responsibility for administration and enforcement of the program at the state level has been delegated to certain agencies in states who have primacy.
Section 402(p) of the CWA has among its requirements that EPA establish regulations setting forth NPDES permit applications for storm water discharges for industrial sources and municipal separate storm sewer (drain) systems. EPA published draft regulations addressing storm water discharges in December 1989 for review and comment. The final rule for NPDES permit application regulations for storm water discharges was published on November 16,1990, and was effective December 17, 1990. The regulations are administered through the existing storm water management plans and specifies who is covered by the regulations, the nature of the requirements, and a one- to two-year time schedule for compliance with the permit application requirements. The regulations also set forth application requirements for industries. Included are requirements for a storm water permit for all construction activities that disturb and area of 5 acres or greater. Some states have NPDES permitting authority. For those who do not, authority is through the EPA regional offices.
Section 404 – Dredge/Fill Permitting
Section 404 of the Clean Water Act established a permit program to regulate the discharge of dredged or fill material into waters of the United States. The program's scope also includes the regulation of discharges of dredged or fill material into wetlands adjacent to national wetlands. This permit program is administered by the Secretary of the Army through the U.S Army Corps of Engineers.
NPDES Program (Phases I and II)
In 1990, EPA published its Final Rule for regulation of storm water discharges. This rule (40 CFR 121.26), known as the "Phase I Rule," established requirements for the permitting and management of storm water discharges from large (serving a population of 250,000 or more) and medium-sized (serving a population of 100,000 to 250,000) municipalities, numerous industries (based on SIC code), and construction sites disturbing five acres or more. The permits are administered by the EPA (or certain delegated state agencies) under the NPDES program.
Under the Phase I Rule, coverage under an EPA Construction General Permit must be sought by the operator of a construction activity that:
- Will disturb five acres or greater, or
- Will disturb less than five acres but is part of a larger common plan of development or sale whose total land disturbing activities total five acres or greater (or is designated by the NPDES permitting authority);
- Will discharge storm water runoff from the construction site into a municipal separate storm sewer system (MS4) or waters of the United States.
In December 1999, EPA finalized the "Phase II" regulations, which require controls on storm water discharges from a broader sector of municipalities, industries, and construction sites. Specifically for construction, the Phase II Rule requires construction sites disturbing equal to or greater than one acre and less than five acres to control pollutants in storm water runoff. Construction activity disturbing less than one acre requires a permit if it is part of a large common plan of development or sale disturbing a total of one acre or greater, or is individually designated for permit coverage by the NPDES permitting authority.
The Phase II Rule requires, nationally, operators of Phase II construction sites to obtain an NPDES permit and implement best management practices (BMPs) to minimize pollutant runoff. For the Phase II construction program, EPA has taken an approach similar to the Phase I approach where the program requirements are not fully defined in the rule but rather in NPDES storm water permit issued by the NPDES permitting authority. The Phase II requirements are similar to the following three main requirements of EPA's Construction General Permit for Phase I:
- Submittal of a Notice of Intent (NOI) that includes general operator and site information;
- The development and implementation of a Storm Water Pollution Prevention Plan (SWPPP) with appropriate BMPs to minimize the discharge of pollutants from the site; and
- Submittal of a Notice of Termination (NOT) when final stabilization of the site has been achieved as defined in the permit, or storm water runoff is no longer being discharged when another operator has assumed control of the site.
A copy of EPA's overview of the Storm Water Phase II Final Rule for Construction Sites is provided I Appendix C. More information may be obtained from the following EPA website: www.epa.gov/own/sw/construction/below5ac.
Phase II Municipal Requirements
Phase II municipalities must apply for an NPDES Storm Water Permit; develop a Storm Water Management Plan (SWMP) that includes the six minimum control measures; implement the SWMP using appropriate BMPs; develop measurable program goals; and evaluate program effectiveness. The applicable standards for Phase II municipalities are to reduce the discharge of pollutants to the "maximum extent practicable" (MEP), protect water quality, and satisfy the water quality requirements of the Clean Water Act.
The six minimum control measures are:
Minimum Measure 1 – Public Education and Outreach
- Public Education and Outreach
- Public Participation/Involvement
- Illicit Discharge Detection and Elimination
- Construction Site Runoff Control
- Post-Construction Runoff Control
- Pollution Prevention/Good Housekeeping
This measure includes distributing educational materials and performing outreach to inform citizens about the impacts polluted storm water runoff discharges can have on water quality.
Minimum Measure 2 – Public Participation/Involvement
This measure includes providing for citizens to participate in program development and implementation, including effectively publicizing public hearings and/or encouraging citizen representatives to participate on a storm water management panel.
Minimum Measure 3 – Illicit Discharge Detection & Elimination
This measure includes developing and implementing a plan to detect and eliminate illicit discharges to the storm drain system (including developing a system map and informing the community about hazards associated with illegal discharges and improper waste disposal).
Minimum Measure 4 – Construction Site Runoff
This measure includes developing, implementing, and enforcing and erosion and sediment control program for construction activities that disturb on or more acres of land.
Minimum Measure 5 – Post-Construction Runoff Control
This measure includes developing, implementing, and enforcing a program to address discharges of post-construction storm water runoff from new development and redevelopment areas.
Minimum Measure 6 – Pollution Prevention/Good Housekeeping
This measure includes developing and implementing a program with the goal of preventing or reducing pollutant runoff from municipal operations. The program must include municipal staff training on pollution prevention measures (e.g., street sweeping, catch basin cleaning, and pesticide use reduction).