A Primer on the Clean Water Act

Lauren Mulroy is a graduate of Huxley College and served as a RE Sources intern. Robyn du Pré served as the North Sound Baykeeper and coordinated water programs at RE Sources for eight years.

Part Nine

Editor’s Note: This is the final part in the series on the health of northern Puget Sound and Georgia Strait. It was first published under the title, “State of the North Sound and Straits,” by RE Sources and the North Sound Baykeeper in October 2002.

The Clean Water Act established the National Pollutant Discharge Elimination System (NPDES). The key word here is elimination. The NPDES was created as a means to ratchet down on pollutants, eventually getting facilities to zero discharge. The act requires that all “point sources” of pollution have an NPDES permit. Point sources are those that issue from a single point, such as an industrial discharge or that of a sewage treatment plant. Do not assume that because a facility has an NPDES permit, it is not polluting or that its pollution discharges are not harmful. It simply means that the facility has a permit to pollute.

NPDES permits can provide a powerful avenue for citizen involvement, because there is a public comment provision that allows for input on the permits as they are drafted. These permits are generally renewed every five years. Often, citizen comments can result in significant changes to facility NPDES permits, resulting in real change at the end of the pipe.

NPDES permits generally contain numerical effluent limits for some, but not all, of the pollutants in the wastewater. Generally, a facility applying for an NPDES permit must characterize its effluent, testing it for a wide variety of pollutants. Then, the state Department of Ecology sets limits for those pollutants that the state determines have a “reasonable potential to exceed” state water quality standards, discussed below. Most facilities discharge a host of pollutants in quantities so low as to not trigger an effluent limit. Pollutants may be discharged in small amounts, but nonetheless, they are discharged. In areas where several similar facilities discharge into one body of water, the overall effect may be that there are more of some pollutants in the water than is desirable.

Herein lies a flaw of the NPDES system: The system was envisioned as a way to move polluters to zero discharge, but the permits only limit some pollutants, and those limits are determined by the state’s water quality standards, which tend to remain unchanged for many years. If the standards don’t move toward zero, then the permits get stuck with the same effluent limits year after year, and pollution is not eliminated.

In addition to effluent limits, NPDES permits can require facilities to institute better housekeeping practices to contain pollutants, require technology changes to create less pollution or better treat the effluent, require toxicity testing on organisms likely to be affected by the discharge, and a variety of other things. These other requirements are often where much of the action is in NPDES permits. While it is nearly impossible for citizens to get effluent limits that are below those set forth in the water quality standards, citizen comments can result in more rigorous monitoring, toxicity testing for sensitive species likely to be found in the vicinity of the discharge, and studies of sediment contamination, etc. The results of such monitoring and studies can then be used to make the next permit more stringent.

It should also be noted that NPDES permits can be appealed. This means that if you feel a permit does not meet the requirements of the Clean Water Act and the state water quality standards, you can appeal the permit to the state Pollution Control Hearings Board. Unfortunately, appeals are expensive, and there is no provision for the recovery of legal expenses, so appeals are often not practical for individual citizens to undertake.

Currently, 117 facilities have discharge permits in Whatcom and Skagit Counties. These include four oil refineries, an aluminum smelter, a tissue mill, several wood treaters, boatyards and shipyards, hatcheries, gravel pits, auto wreckers, fiberglass fabricators, dairies and a host of other facilities. To review a NPDES permit for a particular facility in Whatcom or Skagit Counties, or to receive notification of permit activity in your area, contact the northwest regional office of the state Department of Ecology at (425) 649-7000.

Established by the state through the legislative process (WAC 173-201A), these standards have three important components:

•Designated uses: Waterbodies are classified according to the uses they traditionally supported. For example, waters that have been used for domestic drinking water, shellfish harvest, salmon migration, etc. are classified as “Class AA Extraordinary.” Even if the waterbody is currently degraded, if it can be shown that these uses historically existed, then dischargers in the area will be held to a higher standard.

•Water quality criteria: These criteria establish standards for each designated use and consist of both numeric and narrative descriptions of chemical, physical and biological conditions necessary to support each of the designated uses. Facilities discharging into Class AA waters have lower allowable limits than do those that discharge into Class A or B waters, for example.

•Anti-degradation requirements: This provision prohibits any activity that would remove an existing use, requires states to minimize lowering the quality of waters that currently meet or exceed standards, and prohibits any activity that would degrade waters of exceptional ecological significance or with high recreational or social value. While the anti-degradation concept is potentially a powerful aspect of the Clean Water Act, it is difficult to quantify, and this component of the act is not used to its potential.

Established by the EPA, these standards set minimum pollution control requirements for various categories of dischargers, such as municipal sewage treatment plants, and some industry groups, such as the pulp and paper industry and aluminum smelters. For example, the EPA promulgated new technology standards for pulp mills in the late 1990s. The new rules required many mills to transition away from the use of elemental chlorine in their bleaching processes, while other types of mills were required to abandon chlorinated compounds entirely. This was expressed in pulp mill permits as permit limits for dioxins that would not be achievable with any chlorine use. Essentially, the technology based limits forced the industry to move beyond old technologies to which it had been wedded.

It should noted here that when there are both technology based standards and water quality based standards for the same pollutant, the Department of Ecology is mandated to choose the most stringent. Citizens who comment on NPDES permits should check to see that Ecology is using the tougher of these two types of limits for each pollutant.

Also known as dilution zones, these are areas where some or all water quality standards are waived to allow for dilution of pollution. This is a challenging aspect of the act for many who are concerned about water quality, because it relies on that old saw, “dilution is the solution to pollution.” In most cases, this just is not true. Mixing zones are especially problematic when discharges contain persistent, bio-accumulative pollutants (PBTs). PBTs do not go away: They stay in the environment and make their way up the food chain. Allowing greater amounts of PBTs to be discharged with the thought that they will become diluted is misguided, at best.

These are waters that fail to meet state or federal water quality standards for one or more parameters. Section 303 (d) of the Clean Water Act requires states to submit a list of its impaired waterways to the EPA every four years. This list is often referred to as the “303(d) list.” It does not take massive degradation for a waterbody to be listed as impaired. Reaches of a stream can be listed, for example, due to high temperature. Also, a waterway can be listed because of sediment contamination. While it’s unfortunate to have impaired waterbodies, it is important that communities get their impaired waterbodies on this list as it opens up opportunities for restoration funding and ensures that dischargers will be held to a higher standard.

In Whatcom and Skagit Counties, there are over 70 waterbodies listed as impaired. Most rivers and creeks are listed for parameters such as high temperature, fecal coliform or depressed dissolved oxygen. Several marine waterbodies are listed for toxic contaminants, many of which result from sediment contamination.

In Washington, there are sediment quality standards incorporated by reference into our water quality standards. That means that waterways with sediment contamination are placed on the 303(d) list.

If you are concerned about the health of your local waterbody, you may want to start by checking to see if it is listed as impaired on the 303(d) list. If it is not on the list, it does not necessarily mean that the waterbody is healthy. There are many reasons that degraded waterbodies are not listed, including lack of political will and lack of reliable water quality data. Find out whether the water has been monitored. If so, data should be available that you can submit to the Department of Ecology. If not, perhaps you can convince Ecology, the local conservation district, or a local school to begin a monitoring program. If data do exist that show a problem and the state still refuses to list your waterbody, you can then ask the EPA to disapprove the list.

If a waterbody is listed on the 303(d) list, the Clean Water Act requires that the state prepare a TMDL study for the waterbody. These studies are important, because in a TMDL the state assesses how much of a given pollutant can be discharged into the water without violating water quality standards. Then, a pollution budget is assigned to that waterbody, and that budget is divided among the facilities that discharge to that area. So, while no individual facility may be violating water quality standards, together several facilities might contribute to the impairment of the waterbody. The TMDL gives the state the power to require more stringent effluent limits of all facilities discharging into that waterbody for the pollutant of concern.

While we hope that the government agencies charged with enforcing environmental laws will vigorously do so, this is often not the case. Recognizing this, the Clean Water Act grants citizens the right to undertake enforcement actions in the form of citizen suits. Under the act, any individual or organization that is adversely impacted or has the potential to be adversely impacted by a documented discharge violation may bring suit against the discharger. Citizens may only bring this type of suit if state or federal enforcement agencies have not taken an enforcement action. If the suit is successful, the court can order relief similar to that required in a governmental enforcement action, such as issuing an injunction requiring compliance and levying fines of up to $25,000 per day of violation. Successful litigants may recover their legal expenses for bringing suit, as well.

The above information is a very brief primer on some of the most important aspects of the Clean Water Act. Certainly, the act contains many more provisions, and the specifics of implementation vary from state to state. Here in Washington, the state Department of Ecology has authority to implement and enforce the act. If you are interested in learning more about the NPDES permitting program in Washington or the status of your local waterway, you can log onto the Ecology Web site at http://www.ecy.wa.gov. You can also contact RE Sources for information on citizen action training on the Clean Water Act, for help with a specific permit or facility, or to volunteer with the North Sound Baykeeper reviewing discharge permits and monitoring facilities.

The waters of northern Puget Sound and the Strait of Georgia are precious natural assets. Sadly, this rich ecosystem has been degraded, sometimes badly, by the human activities of the past 100 years. To a great extent, many of these negative impacts occurred before our society understood the ways that our behavior impacts the world around us. Now, we live with a legacy of degraded shorelines, contaminated sediments, depleted fish populations, shellfish closures, and the most contaminated marine mammals on earth.

But we also live in an opportune time and place. The waters of the northern Puget Sound and the Strait of Georgia are not as degraded as are those of the central and south Sound. The Straits of Georgia and Juan de Fuca keep local waters flushed with cleaner flow from the north. Many historic practices that degraded water quality, such as the discharge of mercury into Bellingham Bay, have been curtailed or ended completely. Even folks who live well away from the marine shore, such as dairy farmers, are becoming aware of their impact on the marine environment and changing their practices to lessen their impacts. In addition, we have a population that cares about the natural world and feels lucky to live here.

We can turn around the downward trend of ecosystem health, but it will take the involvement of each resident, doing their part. We need to cultivate a sense of belonging to the natural world and then live responsibly within it. This means thinking about ways that our individual behaviors affect the ecosystem of which we are a part.

We must examine our driving habits and our gardening methods, the way we build and the way we clean, how we dispose of our waste, and what we do when we walk the dog. And we can each take a close look at our buying habits; it is the sheer enormity of stuff that we Americans have that places the great strain on the natural world.

In addition to making lifestyle choices that lighten our step on the earth, we must also become engaged and informed citizens. We must communicate regularly with elected officials and hold regulatory agencies, such as the Department of Ecology, to the highest of standards. We must encourage them to stand up to business interests that would have them sell away long-term environmental integrity in favor of short-term economic gain.

We can return the marine ecosystem of the northern Sound and Straits to its status as a coastal jewel. And as we do so, we will find great rewards in the beauty of a thriving marine ecosystem, with all the gifts it has to offer. §

The human race is challenged more than ever before to demonstrate our mastery, not over nature, but of ourselves.
—Rachel Carson