The Clean Water Act

What is the Clean Water Act?

The Clean Water Act (CWA) is the primary law that governs pollution to our country’s rivers, streams, and wetlands. The CWA establishes the basic structure for regulating impacts to rivers, streams, and wetlands are jurisdictional under the Clean Water Act (these waters are collectively known as “waters of the U.S”). Title IV of the CWA, the pertinent title to development and construction projects, spells out the permits and licenses that are required for projects that impact waters of the U.S. Some of these include:

• Section 401 requires state water quality certification
• Section 402 requires a permit for stormwater discharges
• Section 404 requires a permit for dredge and fill

The CWA is primarily administered by the Environmental Protection Agency (EPA) in coordination with the U.S. Army Corps of Engineers (USACE) and state governments..

Learn More about the Clean Water Act here >>

A Brief History of the CWA

Prior to the 1960’s, environmental awareness in the U.S. was virtually nonexistent. The Lacey Act of 1900 prohibited illegal plant and animal trade, the Antiquities Act of 1906 preserved national monuments, and the Migratory Bird Treaty Act of 1918 had been passed in response to over-hunting, but the US had no laws targeting the impacts of human-centered activities on the environment, nor did anyone really seem to care. 

Then, in the 1960s, following the release of Rachel Carson’s Silent Spring (1962), the Cuyahoga River fire in Ohio (1969), and public backlash from the Interstate Highway System, public concern for the environment heightened.  Decades of increased urbanization, industrial expansion, and resource exploitation was putting the continued health of the environment at risk. Following a congressional investigation into federal mismanagement of the country’s environmental resources, NEPA was signed into law by President Nixon on January 1, 1970. 

In the Act, Congress stated that “it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures… to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”

Learn more about NEPA’s history >>

What exactly are 'waters of the U.S.'?

Waters of the U.S. are the oceans, rivers, streams, lakes, creeks, marshes, and wetlands that are considered "jurisdictional" under the Clean Water Act - as in, they are within the regulatory jurisdiction of the USACE. However, determining exactly which waters are jurisdictional has been quite a debate for the last decade. 

Since the passing of the Clean Water Act in 1972, the definition of "waters of the U.S" has been volleyed around through dozens of court cases, a handful of executive orders, and a couple of final rules. We won't bore you with the timeline or the details, but here is what you really need to know: the definition of waters of the U.S. changes on a fairly regular basis, so don't get too comfortable with any one definition.

The most recent change to the definition of waters of the U.S. was established in the 2020 Navigable Waters Protection Rule, a rule that was passed under the Trump administration that drastically narrows the definition of waters of the U.S. in comparison to previously accepted standards and court interpretations.

Under the current 2020 Navigable Waters Protection Rule, waters of the U.S. are generally defined as:

• The territorial seas and traditional navigable waters include large rivers and lakes and tidally-influenced waterbodies used in interstate or foreign commerce.
  
  
• Perennial and intermittent rivers and streams that contribute surface flow to traditional navigable waters in a typical year
  
  
• Lakes, ponds, and impoundments of jurisdictional waters where they contribute surface water flow to a traditional navigable water or territorial sea in a typical year
  
  
• Adjacent wetlands that either physically touch other jurisdictional waters, are separated from a water of the U.S. by only a natural berm, bank or dune, or wetlands inundated by flooding from a waters of the U.S.

A notable categorical exclusion to the current definition of waters of the U.S. under the 2020 rule is ephemeral (dry) tributaries, which have historically been considered jurisdictional if they had some form of chemical, physical, or biological connection to a downstream waters of the U.S. Under the current rule, dry tributaries are never jurisdictional.

Learn more about the Navigable Waters Protection Rule here >>

What parts of the CWA apply to my project?

1. Section 401 Water Quality Certification - Section 401 of the CWA requires projects that will impact waters of the U.S. to obtain certification that the proposed activity will comply with state-established water quality standards. Each state has different water quality standards around pollutant limits and policies. Individual water quality certification may be required for projects that have substantial impacts to water quality. Many states have blanket certifications that allow projects to proceed without individual certification as long as certain pollutant thresholds are not exceeded.
   
   
   
2. Section 402 Stormwater Permits - Section 402 of the Clean Water Act established the National Pollutant Discharge Elimination System (NPDES), which regulates pollution into waters of the U.S. from “point sources”, such as pipes, ditches, channels, tunnels, conduits, or containers -- sources usually found on construction sites. Section 402 is typically administered by state governments. Most construction activities with land disturbance greater than one acre are subject to Section 402 and fall under a state general permit, which details standard monitoring requirements and other activities necessary to manage stormwater during and after construction. Even if a project will not directly impact waters of the U.S., the project may still be subject to Section 402 for stormwater runoff into nearby water resources.
   
   
   
3. Section 404 Dredge and Fill Permits - Section 404 of the CWA establishes a program to regulate the discharge of dredged or fill material into waters of the U.S. Section 404 requires a permit before dredged or fill material may be discharged into waters of the U.S. The U.S. Army Corps of Engineers (USACE) and/or state environmental agencies that have assumed authority under the CWA regulate impacts to waterways and wetlands that are jurisdictional under Section 404.
   
   

Get more details about the Clean Water Act here >>

What does it take to get a Clean Water Act 404 permit?

The U.S. Army Corps of Engineers (USACE) is the regulatory agency that authorizes impacts to waterways and wetlands that are jurisdictional under Section 404 of the CWA. Permitting or pre-construction authorization for impacts to waters of the U.S. may be required for a proposed project, depending on the amount of impact to waters of the U.S. and on the federal, state, and local regulatory requirements.

Steps to determine if a project will impact waters of the U.S

1. Run a Transect Report to determine areas within the project where waters of the U.S. are likely to occur
   
   
2. Creating a preliminary site plan to avoid these areas (thereby minimizing or avoiding the potential for painful permitting timelines)
   
   
3. If it looks like the site plan intersects waters of the U.S., contract with a wetlands biologist to confirm the extent of the features onsite
   
   
4. Overlay waters of the U.S. with the final site plan to determine the amount of impacts.
   
   

Find Waters of the U.S. on Your Project with Your Complimentary Transect Report >>

Permit Types

For projects that have only minimal impacts to waters of the U.S., the project can often proceed with minimal USACE coordination under a streamlined 'general' or 'nationwide' permit. Projects with more than minimal impacts may require an individual permit.

• General or Nationwide Permit: For projects that have only minimal adverse effects (usually 0.5 acres of impacts or less, though it varies by project type)
  
  
• Individual Permit: For projects with more than minimal impacts and/or that exceed the thresholds of a general or nationwide permit. An Alternative Analysis and public notice is typically required for individual permits.
  
  

All general conditions of the general and nationwide permits must be met in order to use these streamlined permits. Two of the most common general conditions consider the project’s effects to federally-protected species and cultural resources. As such, these resources are often considered as part of the USACE permitting process.

Pro Tips

• If a project minimizes and/or avoids impacts to waters of the U.S., including wetlands, then federal permitting can often be avoided.
  
  
• Many states have additional water-related permitting requirements in place of or in addition to federal CWA 404 requirements.
  
  
• Use Transect early in the site planning process to determine the potential impacts to waters of the U.S., federally-protected species, and cultural resources.