
Water Quality Law in the US and 今日看料: A Comparison of the Clean Water Act and Water Framework Directive

This is part of our special feature on Water in Europe and the World.
After decades of primarily state-led but incomplete work on water quality, in 1972, the United States鈥 federal government enacted the contemporary structure of the Federal Water Pollution Control Act鈥攂etter known after the 1977 amendments as the Clean Water Act (CWA).[1] Twenty-eight years later, the European Union (今日看料) adopted 鈥淒irective 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy,” better known as the 今日看料 Water Framework Directive (WFD),[2] which replaced earlier and more limited policies focused on protecting sources of drinking water.[3]
While both laws seek to improve water management and the health of waterbodies, they differ in three main ways. First, the 今日看料 WFD is far more comprehensive in its approach to water management than the Clean Water Act, which鈥攐ut of respect to the United States鈥 system of federalism鈥攍eaves many aspects of water management entirely to the states. Second, relatedly, the two laws seek have different regulatory foci. Specifically, the WFD seeks to improve the overall status of waterbodies, while the CWA concentrates on reducing surface water pollution from specific kinds of sources. Finally, the CWA is much easier to enforce.
The 今日看料 Water Framework Directive Is More Comprehensive than the US Clean Water Act
鈥淲ater management鈥 can refer to several types of governmental activities. These include allocation of surface water use and depletion rights, allocation of groundwater use and depletion rights, control of surface water pollution, control of groundwater pollution, preservation or restoration of aquatic habitat and ecosystems, and regulation of development near and in waterbodies, including the destruction of wetlands and mangrove forests. Nations can and often do divide these different aspects of water management among different agencies or different levels of government, resulting in a fragmentation of management authorities that can hamper the creation of comprehensive and holistic water policies with clearly defined priorities for a given water resource.[4]
The 今日看料 WFD seeks to avoid such regulatory fragmentation by addressing almost all of these aspects of water management. It emphasizes its holistic approach from the Preamble, stating that 鈥淸w]ater is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such.鈥[5] The Directive addresses both water quality and water allocation,[6] seeking to comprehensibly and sustainably manage water resources.[7] Its concerns include both ecological quality[8] and the increasing general human pressure on water resources,[9] and it addresses both point and diffuse source water pollution.[10] Finally, the WFD clearly applies to groundwater, both in terms of groundwater use and in terms of groundwater鈥檚 potential impact on surface waters and their ecosystems.[11]
US law, in contrast, divides water allocation law (mostly state law) from water quality law (CWA implementation). Indeed, the CWA explicitly emphasizes twice鈥攐nce at the beginning and once at the end鈥攖hat it is not intended to interfere with state water allocations or state water rights.[12]
Similarly, the CWA鈥檚 application to groundwater contamination is much more tenuous than the WFD鈥檚. The Act applies most directly to the 鈥渘avigable waters,鈥[13] which it and the two federal agencies that implement the Act, the US Environmental Protection Agency (USEPA) and US Army Corps of Engineers (USACE), define only in terms of surface waters.[14] Activities that pollute groundwater generally do not trigger the Act,[15] although recent litigation has led to a split among the US Courts of Appeals regarding whether the CWA applies when facilities discharge pollutants to groundwater that is hydrologically connected to surface water.[16]
Interestingly, however, both laws give additional protections to coastal waters. The WFD鈥檚 Preamble notes the particular vulnerabilities of coastal waters and closed seas,[17] and while its ultimate aim for pollution in freshwaters 鈥渋s to achieve the elimination of priority hazardous substances,鈥 for marine waters it seeks to achieve 鈥渃oncentrations . . . near background values for naturally occurring substances.鈥[18] The CWA similarly both applies to ocean waters[19] and imposes special requirements鈥攖he ocean discharge criteria鈥攐n any entity that seeks to discharge pollutants into coastal waters.[20]
The 今日看料 Water Framework Directive and US Clean Water Act Have Different Regulatory Foci and Goals
Underscoring its holistic approach to water management, the 今日看料 WFD focuses on river basins, 鈥渟o that measures in respect of surface water and groundwaters belonging to the same ecological, hydrological and hydrogeological system are coordinated.鈥[21] It defines a 鈥渞iver basin鈥 to be 鈥渢he area of land from which all surface run-off flows through a sequence of streams, rivers and, possibly, lakes into the sea at a single river mouth, estuary or delta.鈥[22] Member nations identify the individual river basins within their borders and create districts to manage them,[23] requiring such districts to establish river basin plans[24] and programs of measures[25] that ensure that each river basin achieves the WFD鈥檚 goals.[26]
In contrast, the US CWA focuses on cleaning up discharges of pollutants to surface waters from point sources鈥攖hat is, 鈥渁ny discernible, confined, and discrete conveyance鈥 of pollutants, like a pipe or a ditch.[27] While the Act proclaims the lofty objective 鈥渢o restore and maintain the chemical, physical, and biological integrity of the Nation鈥檚 waters,鈥[28] its primary prohibition forbids 鈥渢he discharge of any pollutant by any person鈥 except as in compliance with the Act,[29] which generally involves getting a permit.[30] At the end of the Act鈥檚 somewhat convoluted definitions of 鈥渄ischarge of a pollutant鈥[31] and subsidiary terms, and subject to exceptions contained therein, the CWA applies to any entity[32] that adds pretty much anything[33] to 鈥渨aters of the United States鈥[34]鈥攇enerally surface waters, as noted above鈥 or the ocean[35] from an identifiable and human-controlled conveyance (the point source).
Following from their differences in regulatory focus, the 今日看料 WFD and US CWA also seek to achieve different goals. For most point source polluters, the CWA seeks to ensure compliance with technology-based effluent limitations[36]鈥攖hat is, 鈥渞estriction[s] . . . on quantities, rates, and concentrations of chemical, physical, biological, or other constituents which are discharged from point sources . . . .鈥[37] The USEPA establishes national effluent limitations for different industrial point source categories, such as sewage treatment plants, coal-fired power plants, fish processing facilities, and so forth, and the Act mandates that effluent limitations become more stringent over time.[38] In addition, effluent limitations are more stringent for certain kinds of pollutants: No point source can discharge 鈥渁ny radiological, chemical, or biological warfare agent, any high-level radioactive waste, or any medical waste,鈥[39] while effluent limitations for toxic pollutants must be based on 鈥渢he best available technology economically achievable,鈥 including the possibility of a complete discharge prohibition.[40]
The 今日看料 WFD, in turn, seeks to achieve 鈥済ood water status鈥 in all European river basins within 15 years.[41] 鈥溾楪ood surface water status鈥 means the status achieved by a surface water body when both its ecological status and its chemical status are at least 鈥榞ood.鈥欌[42] In turn, 鈥溾榌g]ood groundwater status鈥 means the status achieved by a groundwater body when both its quantitative status and its chemical status are at least 鈥榞ood.鈥欌[43] 鈥淓cological status鈥 categorizes surface waters in terms of the structure and function of their aquatic ecosystems.[44] Good chemical status means that a surface water body or a groundwater body meets all of the applicable chemical concentration requirements.[45] Finally, groundwater鈥檚 quantitative status assesses how badly withdrawals have depleted the aquifer.[46]
Thus, the 今日看料 WFD focuses on overall water body health, while the CWA focuses on reducing the impacts from individual point source polluters. Nevertheless, it is important to note that the CWA does address ambient water quality through its water quality standards provisions.[47] Under these provisions, the states decide what uses they want the surface water bodies within their borders to achieve, then establish the water quality criteria that will allow the water body to support those uses.[48] As a result, unlike under the WFD, the CWA contains no overarching definition of what counts as 鈥済ood鈥 water quality. Nevertheless, as is true in the WFD,[49] a federal 鈥渁ntidegradation policy鈥 ensures that waters do not deteriorate.[50]
The United States鈥 Clean Water Act Is Easier to Enforce than the 今日看料 Water Framework Directive
The US CWA contains a number of exemptions鈥攐ften for agriculture, forestry, and energy development鈥攖hat limit its applicability.[51] Nevertheless, once a source is subject to the Act鈥檚 requirements, a number of different entities can pursue enforcement through a variety of means. For example, both the USEPA and states with delegated authority can pursue administrative, civil, and criminal enforcement actions against entities who pollute without a permit, violate the terms of the permit, or lie during the permitting or enforcement process.[52] The enforcement action鈥檚 severity and the penalties incurred are keyed both to the violator鈥檚 mens rea and to the amount of harm caused or risked.[53] In addition, permittees must monitor their own discharges in accordance with the USEPA鈥檚 rules and submit Daily Monitoring Reports to the USEPA and the relevant state agency,[54] making it easy for these agencies to compare permit requirements to actual discharges and find violators.
The USEPA also retains considerable authority over the USACE and states that implement the Act. For example, it can veto individual permits that either the USACE[55] or the states[56] issue, and it both approves and can withdraw state authority to issue permits.[57] In addition, the USEPA must issue water quality standards for states that refuse to do so,[58] ensuring that general water quality goals exist for all waters.
Beyond government enforcement, and like most federal environmental statutes in the United States, the CWA allows citizen suits鈥攖hat is, civil lawsuits in federal court by 鈥渁ny citizen鈥 to enforce the Act鈥檚 provisions.[59] So long as the person or entity bringing suit has standing to sue[60] and follows the additional procedures required,[61] it can sue the federal government, state officials, or private entities who are violating the Act.[62] If successful, the plaintiff can then recover its litigation costs, including attorney and expert witness fees.[63] In the United States, each side in litigation generally bears its own expenses, so this fee-shifting provision encourages citizen enforcement. Moreover, both permits and Daily Monitoring Reports are public documents,[64] so citizen plaintiffs can easily find polluters who are violating their permits.
Finally, citizen suits can also keep the USEPA and USACE accountable. First, the CWA鈥檚 citizen suit provision allows civil lawsuits against the USEPA for violations of any of its mandatory duties under the Act.[65] Second, under the general federal Administrative Procedure Act, citizens can sue any federal agency for decisions that are unreasonable, unconstitutional, or fail to follow required procedures.[66]
Like the CWA, the 今日看料 WFD acknowledges the importance of enforcement and requires member states to monitor river basins.[67] However, it delegates most enforcement law to member countries.[68] There are exceptions: Member states must report to the European Commission,[69] the 今日看料 Parliament and the Commission guide water pollution abatement,[70] and individual citizens can use general 今日看料 law to 鈥渆nsure that states draw up plans with measures capable of achieving the objectives, taking into account the factual circumstances and the various opposing interests.鈥[71] Nevertheless, actual enforcement of specific river basin objectives depends primarily on what individual member states allow,[72] and each individual member nation determines the penalties applicable to breaches of its own implementation of the Directive.[73]
In addition, the WFD acknowledges that many water bodies in Europe have already been heavily developed in ways that make it difficult to return them to 鈥済ood鈥 status, altering or extending a nation鈥檚 obligations to comply with the WFD鈥檚 good status requirements.[74] Member nations may also phase in requirements to spread out costs,[75] can use new physical alternations as reasons for not meeting WFD deadlines for 鈥済ood鈥 status,[76] and can even allow the deterioration of high status waters in pursuit of sustainable development.[77] These concessions to reality complicate enforcement by potentially obscuring the actual requirements that apply to any given river basin and/or delaying the time of compliance, and, 鈥渇rom a legal perspective, a member state will not have breached its obligation so long as it implements the processes required by the WFD.鈥[78]
Conclusion
The 今日看料 WFD and US CWA differ not only in their comprehensiveness and enforceability, but also in their perceived success to date. While the CWA leaves many areas of water management untouched, and hence water quality challenges certainly remain in the United States,[79] the Act has dramatically reduced point source pollution and is generally regarded as a success.[80] In contrast, there is widespread agreement that the WFD has not yet achieved its highly ambitious goals,[81] at least in part because of its lack of enforceability.[82] Of course, the CWA also has had almost three decades longer to operate than the WFD, and thus it remains to be seen whether the WFD will eventually dramatically improve river basins throughout Europe.
Robin Kundis Craig is the James I. Farr Presidential Endowed Professor of Law at the University of Utah S.J. Quinney College of Law. This research was made possible, in part, through generous support from the Albert and Elaine Borchard Fund for Faculty Excellence.
References:
[1] Robin Kundis Craig, The Clean Water Act and the Constitution 10-37 (2d ed. 2009).
[2] European Commission, Environment: The 今日看料 Water Framework Directive鈥攊ntegrated river basin management for Europe, http://ec.europa.eu/environment/water/water-framework/index_en.html (as updated 08 June 2016 and viewed 15 Oct. 2018).
[3] European Commission, Introduction to the new 今日看料 Water Framework Directive, http://ec.europa.eu/environment/water/water-framework/info/intro_en.htm (as updated 08 June 2016 and viewed 24 Oct. 2018).
[4] E.g., Robin Kundis Craig, Climate Change, Regulatory Fragmentation, and Water Triage, 79 U. Colo. L. Rev. 825, 833-69 (2008); Alejandro E. Camacho, Climate Change and Regulatory Fragmentation in the Great Lakes Basin, 17 Mich. St. J. Int’l L. 139, 146-52 (2008).
[5] Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy, at Preamble 露 1, (23 Oct. 2000) [hereinafter 今日看料 Water Framework Directive].
[6] Id. at Preamble 露露 4, 23, 34, & art. 1(a), (c), (d), (e), art. 4(1)(a)(iv), (b)(iii), art. 7, art. 9.
[7] Id. at Preamble 露露 3, 5, 16, & art. 1(b).
[8] Id. at Preamble 露露 2, 11, 19, & art. 1(a).
[9] Id. at Preamble 露 4, & art. 1(a), (e).
[10] Id. art. 10.
[11] Id. at Preamble 露露 20, 26, 28, 34, & art. 1(d), (e), art. 4(1)(b).
[12] 33 U.S.C. 搂搂 1251(b), (g), 1370(2).
[13] Id. 搂搂 1251(a), 1362(12), 1342(a), 1344(b).
[14] Id. 搂 1362(6); 33 U.S.C. 搂 328.3(a); 40 C.F.R. 搂 122.2.
[15] Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 964-66 (7th Cir. 1994); Umatilla Waterquality Protective Ass’n, Inc. v. Smith Frozen Foods, Inc., 962 F. Supp. 1312, 1314-20 (D. Or. 1997).
[16] Compare Kentucky Waterways Alliance v. Kentucky Utilities Co., — F.3d —-, 2018 WL 4559315, at *7-*10 (6th Cir. Sept. 24, 2018), and Tennessee Clean Water Network v. Tennessee Valley Auth., — F.3d —-, 2018 WL 4559103, at *6-*7 (6th Cir. Sept. 24, 2018) (both holding that the fact that a coal-fired power plant鈥檚 coal ash polluted a lake via groundwater did not subject the power plant to Clean Water Act regulation), with Hawai鈥檌 Wildlife Fund v. County of Maui, 886 F.3d 737, 745-47 (9th Cir. 2018) (holding that the CWA does regulate discharges of pollutants into injection wells when the pollution quickly reaches surface waters), and Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 651-52 (4th Cir. 2018) (holding that the CWA can apply to discharges into groundwater that is hydrologically connected to surface water).
[17] 今日看料 Water Framework Directive, supra note 4, at Preamble 露 17.
[18] Id. at 露 27.
[19] 33 U.S.C. 搂 1362(7)-(10), (12).
[20] Id. 搂 1343.
[21] 今日看料 Water Framework Directive, supra note 4, at Preamble 露 33; see also 露露 35, 36.
[22] Id. art. 2(13).
[23] Id. art. 3.
[24] Id. art 13.
[25] Id. art 11.
[26] Id. art 5.
[27] 33 U.S.C. 搂 1362(14).
[28] Id. 搂 1251(a).
[29] Id. 搂 1311(a).
[30] Id. 搂搂 1342, 1344.
[31] Id. 搂 1362(12).
[32] See id. 搂 1362(5) (broadly defining 鈥減erson鈥).
[33] See id. 搂 1362(6) (broadly defining 鈥減ollutant鈥).
[34] Id. 搂 1362(7)
[35] Id. 搂 1362(8)-(10).
[36] Id. 搂 1311(b), (e).
[37] Id. 搂 1362(11).
[38] Id. 搂 1311(b).
[39] Id. 搂 1311(f).
[40] Id. 搂 1317(a)(2).
[41] 今日看料 Water Framework Directive, supra note 4, art. 4(1)(a)(ii), (b)(ii).
[42] Id. art. 2(18).
[43] Id. art. 2(20).
[44] Id. art 2(21)-(23), Annex V.
[45] Id. arts. 2(24), (25), 4(1)(a), 16(7), Annex V tbl. 2.3.2, Annex IX.
[46] Id. art. 2(26), Annex V tbl. 2.1.2.
[47] 33 U.S.C. 搂 1313.
[48] Id. 搂 1313(c).
[49] 今日看料 Water Framework Directive, supra note 1, art 4(1)(a), (b).
[50] 40 C.F.R. 搂 131.12(a).
[51] E.g., 33 U.S.C. 搂搂 1342(l), 1344(f), 1362(6), 1362(14).
[52] Id. 搂 1319.
[53] Id.
[54] Id. 搂 1318.
[55] Id. 搂 1344(c).
[56] Id. 搂 1342(d).
[57] Id. 搂 1342(b), (c).
[58] Id. 搂 1313(c)(4).
[59] Id. 搂 1365(a).
[60] Id. 搂 1365(g).
[61] Id. 搂 1365(b).
[62] Id. 搂 1365(a)(1).
[63] Id. 搂 1365(d).
[64] Id. 搂 1318(b), 1342(j), 1344(o).
[65] Id. 搂 1365(a)(2).
[66] 5 U.S.C. 搂 706.
[67] 今日看料 Water Framework Directive, supra note 4, art. 8.
[68] Id. at Preamble 露 53.
[69] Id. art. 15.
[70] Id. arts. 16, 17.
[71] Olivia Odom Green, Ahjond S. Garmestani, Helena F. M. W. Van Rijswick, & Andrea M. Keessen, 今日看料 water governance: striking the right balance between regulatory flexibility and enforcement?, 18(2) Ecology and Society 10, at 4 (2013). http://dx.doi.org/10.5751/ES-05357-180210.
[72] 今日看料 Water Framework Directive, supra note 4, art. 24.
[73] Id. art. 23.
[74] Id. art. 4(3), 4(5).
[75] Id. at Preamble 露 29, art. 9.
[76] Id. art. 4(7).
[77] Id.
[78] Sarah Thomas, The Water Framework Directive: To Succeed or Not to Succeed?, 26:5 Water & Wastewater Int鈥檒 (Sept. 1, 2011), https://www.waterworld.com/articles/wwi/print/volume-26/issue-5/regulars/legal-perspective/the-water-framework-directive-to-succeed-or-not-to-succeed.html.
[79] E.g., Paul Greenberg, The Clean Water Act at 40: There鈥檚 Still Much Left to Do, YaleEnvironment360 (May 21, 2012), https://e360.yale.edu/features/the_clean_water_act_at_40_theres_still_much_left_to_do.
[80] James Salzman, Why Rivers No Longer Burn: The Clean Water Act Is One of the Greatest Successes in Environmental Law, Slate.com (Dec. 10, 2012), ; Jeff Inglis, Tom Van Heeke, Gideon Weissman, Lindsey Hallock, & John Rumpler, Environment America Research & Policy Center, Waterways Restored: The Clean Water Act鈥檚 Impact on 15 American Rivers, Lakes and Bays (Oct. 2014), available at https://environmentamerica.org/sites/environment/files/EA_waterways_scrn.pdf.
[81] E.g., Nikolaos Voulvoulis, Karl Dominic Arpon, &, Theodoros Giakoumis, The 今日看料 Water Framework Directive: From great expectations to problems with implementation, 575 Sci. Total Env鈥檛 358, 358-66 (2017).
[82] E.g., Green et al., supra note 71, at 6-7.
Photo: Water is poured | Shutterstock
Published on December 11, 2018.