Clean Water Act Basics

What is the Clean Water Act?

In 1972, the United States recognized that access to clean, safe water is a critical human right and passed the Clean Water Act (CWA). The CWA established a goal of restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters for the use and benefit of every American. Since its passage in 1972, the levels of water pollution in the United States have experienced a dramatic decrease. This powerful law ended the culture of dumping raw sewage and untreated industrial waste into our waters and led to a dramatic improvement in the health and safety of waterways across the country, particularly in the law’s early years.

The Clean Water Act is a federal law that is substantially implemented and enforced at the state and tribal government levels. The state and tribal implementation is intended to trickle down to the local level through permitting of facilities and activities, setting standards that apply to specific water bodies, developing plans, and implementing permits and plans. Clean Water Act permits are required for any discharge of pollution from a pipe (and many other discrete conveyances such as ditches) that prescribes what must be done to treat the pollution and what level of control they must meet. Rivers, lakes, streams, coastal waters, reservoirs, wetlands, and other waters across the country are protected.

Most notably, the Clean Water Act gives every person the right to enforce the law when the government fails to protect clean water.
And the CWA gives you the tools.

Clean Water Act programs YOU can use

There are a few basic programs that are helpful to understand as you are thinking about ways to protect the waters you care about. 

Permits to pollute: The CWA prohibits any discharge of pollution without a permit. That means that most sources of pollution that concern you are likely to be subject to requirements in a permit. These permits, known as a National Pollution Discharge Elimination System (NPDES) permit, are available online, at state agencies, and sometimes with local governments. There are various requirements for public notice, public review, public comment, and public hearings. These are the ways you can speak up about your concerns and present any photos, samples, or other evidence of problems. These permits are issued and enforced primarily by states and tribes, and renewed usually every five years.

For more information: River Network CWA Owner’s Manual, p. 75, EPA website

Public Enforcement: The CWA allows any harmed member of the public, not just citizens of the U.S., to bring a lawsuit against a polluter in circumstances such as an entity with an unpermitted discharge of pollution or an ongoing violation of a permit. If you have exhausted other opportunities to stop harmful pollution, or even if this is your first action, filing a lawsuit is likely to get the attention of the polluter and the state agency. The public lawsuit is also authorized if EPA does not perform a required duty such as meeting a timeline for review and approval of the list of impaired waters.

For more information: River Network CWA Owner’s Manual, p. 136

Water Quality Standards: To determine the requirements in all permits, the CWA established a program for states, tribes, and EPA to set goals for the use of all the nation’s. These goals may include uses such as drinking water, swimming, ceremonies, aquatic life, or agriculture. Levels of protection from all pollutants of concern are required to ensure those uses are viable. That means that waters cannot have unsafe levels of bacteria or toxic contaminants. These goals and protections are called water quality standards, and must also identify and protect waters that are still in good shape (high quality waters). That is called the antidegradation policy. 

These standards are required to be reviewed every 3 years by the state or tribe and that review must include public involvement. That process is called the Triennial Review, and it can be found online. That is your way to call out missing uses in your waters or inadequate levels of protection. In many places, states and tribes have defined additional waters that are subject to the above requirements beyond the definition of national waters. 

For more information: River Network CWA Owner’s Manual, p. 47, EPA website

Assessing the quality of water: Every two years each state and some tribes are required to compare the quality of their waters to the water quality standards in order to determine whether they are supporting the established uses. This assessment process is summarized in an impaired waters list known as the Integrated Report, and it can be found online. This process also requires public review, and it can be your opportunity to identify problems they have not included. This determination is important to prohibit permits from allowing pollution that will cause or contribute to existing problems. 

Once waters are determined to have problems, each state (and authorized tribe) is required to develop plans, known as Total Maximum Daily Loads (TMDLs), for how to fix the problems. The schedule for development of those plans, the plans themselves, and the steps for implementing the plans should be available online. The schedule and the plans are available for public review. You can contribute your thoughts about whether the schedule is timely enough and whether the plans are strong enough to fix the problems. If you are frustrated with the inadequacy of a state’s list of waters that violate water quality standards, you may be able to file a lawsuit to force EPA to act on the flawed list. 

For more information: River Network CWA Owner’s Manual, p. 124, EPA website

Water Quality Certification: States and tribes are authorized to evaluate federal permits and licenses for projects like dams and pipelines to ensure they protect water quality. These water quality certifications (CWA Section 401) are a check to see whether the project will meet or violate the state or tribal water quality standards or other laws. The process requires public review and allows public comment. Commenting on the state and tribal review would allow you to raise concerns that they may not have known, and to put in the public record concerns they may not be taking seriously enough. 

For more information: River Network CWA Owner’s Manual, p. 119, EPA website

Dredging and Filling Permits: The CWA prohibits a different type of pollution from activities such as mining or oil and gas development and pipelines that comes from disturbance of soil in or near water bodies including wetlands. This pollution is generally caused by equipment such as dump trucks, backhoes, or frontend loaders and might occur with residential or commercial development, impoundments, or natural resource extraction.

These permits, administered primarily by the Army Corps of Engineers, are subject to public review, comment, and hearings. They are also generally subject to state and tribal review for violations of their water quality standards – protected uses and required levels of pollution control and critical conditions. Impacts must be avoided or minimized before just mitigating them. If you have concerns related to projects going on in your nearby waters, comments can be directed to the permitting authority or to the state or tribe commenting on the project.   

For more information: River Network CWA Owner’s Manual, p. 112, EPA website

Addressing Environmental Injustices through the Clean Water Act  

More often than not, communities that are burdened by excessive pollution are lower income or communities of color. It is easier to site a pollution source, or many of them, in a lower income community. It shouldn’t be.  

Tribal communities have lost access to so much of their traditional lands and waters. They can use the Clean Water Act to regain authority and control of the water quality needed to support cultural uses that are most important to their traditions.  

Adapting the Clean Water Act to take on the consequences of Climate Change 

With increasing severity and frequency of storms and extreme heat events, with more catastrophic flooding in more places than ever before, with the reality of sea level rise, melting of permafrost, and changing seasonal patterns for flora and fauna, the Clean Water Act’s tools must be adapted to fulfill its objectives. Protection and restoration of the chemical, physical, and biological integrity of the nation’s waters will not be achievable without revising precipitation assumptions, recognizing the impact of thermal loads in the hottest months, understanding the vital role increasing numbers of ephemeral waters play, and challenging our concept of progress as synonymous with a built environment.

The Next 50 Years

The Clean Water Act has dramatically reduced pollution and improved water quality across the country, but progress is threatened by deregulation, lack of enforcement, and other serious problems. This is why you and your neighbors have a key role in ensuring that local clean water regulations and laws are being implemented and enforced.