Clean Water Act

History of Funding

The antecedent for the funding component of the CWA is the long series of amendments to the Federal Water Pollution Control Act (FWPCA), stretching back to 1948. These acts were concerned largely with sanitation and funded sewage treatment, but had no regulatory power to compel improvements in water quality. The importance of environmental conservation was noted, but execution of the act was in the hands of the surgeon general. The antecedent for the dredge-and-fill permitting program is the Rivers and Harbors Act of 1899 (RHA), which charged the U.S. Army Corps of Engineers with protecting the integrity of navigable waterways by establishing a permit program to regulate any dredging or filling of harbors or rivers.

The RHA permit program still exists, and many projects in coastal and riverine wetlands require both a CWA and RHA permit. There was no antecedent for the NPDES permit program. The name of the act was changed to the CWA with the 1977 amendments. Other changes included the addition of exemptions for agriculture and other activities from the 404 permit program, and clarification that CWA jurisdiction covers “waters of the United States” as defined by EPA.

Because the CWA empowers the Corps to require a permit for activities that impacts waters of the United States, it potentially represents a vast expansion of federal power: Many kinds of dryland activities eventually impact water. The CWA has thus been the source of much concern from property-rights advocates, who have argued against an expansive conception of “waters,” and against the Corps' power to conduct an analysis of the secondary and cumulative impacts associated with proposed dredge-and-fill projects. This struggle has resulted in legal precedents that require a “significant nexus” between the activity and the integrity of navigable water in order for CWA jurisdiction to apply. The nature of this “nexus” is not currently clear, and will be the subject of future litigation.

The Corps' long experience in water resource permitting under the RHA, as well as the political resistance to allowing a potentially powerful regulatory program to be administered entirely by the EPA, led the act's authors to have the Corps administer the permit program. The EPA was given the power to veto permits, to set the environmental criteria by which permits would be issued, and to define “waters of the United States.” The Corps resisted this arrangement strenuously throughout the 1970s, arguing that it was duplicative of the RHA, adopted a definition of “waters of the United States” that excluded wetlands, and often handed out permits without reviewing project plans. The NRDC v. Callaway decision in 1975 forced the Corps to adopt a definition of “waters” that was expansive (and was incorporated into the 1977 CWA), and the 1984 settlement in NWF v. Marsh forced the Corps to adopt EPA's guidelines on the environmental criteria for permit approval.

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