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📘 The river needs a permit

You are in the Senate on 17 October 1972. A message from the President has just arrived: he will not sign S. 2770, the Federal Water Pollution Control Act Amendments. He calls its $24 billion price tag unconscionable. Tomorrow the House wil

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What you’ll learn

  1. The night of the vetoPlace the 1972 Act on the Senate floor the night of Nixon's veto, separate the Cuyahoga symbol from the statute, and contrast the 1948 assistance law with the 1972 permit law.S. 2770 vetoed 17 October 1972; enacted over the veto 18 October as P.L. 92-500. Senate 52-12, House 247-23. The 1969 Cuyahoga fire is a symbol, not the text.
  2. The default is noRead 301(a) as a default prohibition, define point source and the agricultural exclusion, and separate the 402 pipe permit from the 404 dirt permit.Discharge of any pollutant is unlawful unless a listed section authorizes it. 402 is NPDES. 404 is dredge and fill. Agricultural stormwater is not a point source.
  3. The river's own numberRead the 101 objective and dated goals without nicknaming them as the statute's words, then show 303 standards and 303(d) TMDLs as the waterbody's own number.Integrity is chemical, physical, and biological. 1983 and 1985 dates have passed; the goals remain. A TMDL is what happens when a legal pipe still leaves the river short.
  4. Where the water endsShow that navigable waters means waters of the United States, walk 404 and its farming recapture, and leave Sackett's continuous-surface-connection test as tonight's hunt.Five words do the jurisdictional work. 404 covers fill; 404(f)(2) recaptures a change of use. Sackett (25 May 2023) requires a continuous surface connection.

Questions this course answers

What does section 301(a) of the Clean Water Act actually make unlawful?

33 U.S.C. § 1311(a) makes the discharge of any pollutant by any person unlawful except as in compliance with specified sections, including 1342 (NPDES) and 1344 (dredge and fill). It does not seize state water allocation, and agricultural stormwater is written out of the point-source definition.

Match each Clean Water Act provision to the job it actually does

101 names the objective. 402 and 404 are the two permit doors. 303(d) is the waterbody number when technology at the pipe cannot meet the designated use.

Put the documented sequence in order

CRS dates the original Act to 1948. The Presidency Project dates the veto to 17 October 1972 and enactment of P.L. 92-500 to 18 October. Sackett was decided 25 May 2023.

Section 502(7) never says wetland. Complete the Act's own definition of navigable waters.

33 U.S.C. § 1362(7) defines navigable waters as the waters of the United States, including the territorial seas. Wetlands enter later, through 404(g) and through cases. Sackett holds that only wetlands indistinguishable from those waters, by a continuous surface connection, qualify.

In your own words, why is it more honest to say the Clean Water Act creates procedures than to say it cleaned the rivers?

CRS is clear that the 1983 and 1985 dates have passed and the goals remain. The statute's tools are permits, standards, loads, and enforcement. Those tools are how the conflicts are argued. They are not a deed to the river.

Under Sackett v. EPA, when may an adjacent wetland be treated as waters of the United States?

The Sackett syllabus requires a relatively permanent adjacent water connected to traditional interstate navigable waters, plus a continuous surface connection that makes the wetland indistinguishable from that water. The Court rejected the significant-nexus approach that had reached the Sacketts' lot via a ditch and a creek. It did not hold that no wetlands are covered.

Grounded in trusted sources

  • 33 U.S.C. § 1251 (CWA § 101). Objective: restore and maintain the chemical, physical, and biological integrity of the Nation's waters. Goals: eliminate the discharge of pollutants into the navigable waters by 1985; wherever attainable, water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water by July 1, 1983. § 101(b): primary responsibilities and rights of States. § 101(g), added Pub. L. 95-217, § 5(a) (Dec. 27, 1977): State authority to allocate quantities of water shall not be superseded, abrogated or otherwise impaired. § 101(a)(7), added Pub. L. 100-4 (Feb. 4, 1987): national policy on nonpoint-source programs. https://www.law.cornell.edu/uscode/text/33/1251
  • 33 U.S.C. §§ 1311, 1342, 1362 (CWA §§ 301, 402, 502). § 1311(a): the discharge of any pollutant by any person shall be unlawful except as in compliance with §§ 1311, 1312, 1316, 1317, 1328, 1342, and 1344. § 1311(b): BPT / secondary treatment by July 1, 1977; BAT generally no later than March 31, 1989. § 1342(a): Administrator may issue a permit for the discharge of any pollutant notwithstanding § 1311(a). § 1342(b): state programs; permits for fixed terms not exceeding five years. § 1362(6) pollutant includes dredged spoil, rock, sand; § 1362(7) navigable waters means the waters of the United States, including the territorial seas; § 1362(12) discharge of a pollutant is addition of any pollutant to navigable waters from any point source; § 1362(14) point source is any discernible, confined and discrete conveyance, and does not include agricultural stormwater discharges and return flows from irrigated agriculture. https://www.law.cornell.edu/uscode/text/33/1311 ; https://www.law.cornell.edu/uscode/text/33/1342 ; https://www.law.cornell.edu/uscode/text/33/1362
  • 33 U.S.C. §§ 1313, 1344 (CWA §§ 303, 404). § 1313(c)(2)(A): a water quality standard consists of designated uses and water quality criteria based upon such uses; protect public health or welfare; consider public water supplies, fish and wildlife, recreation, agriculture, industry, navigation. § 1313(d)(1): each State shall identify waters for which 301(b)(1)(A) and (B) effluent limitations are not stringent enough, and establish the total maximum daily load at a level necessary to implement applicable standards, with seasonal variations and a margin of safety. § 1344(a): Secretary may issue permits for dredged or fill material; § 1344(c): EPA may prohibit a site for unacceptable adverse effect on municipal water supplies, shellfish beds, wildlife, or recreational areas; § 1344(d): Secretary means Secretary of the Army acting through the Chief of Engineers; § 1344(f)(1): normal farming, silviculture, and ranching not prohibited; § 1344(f)(2): recapture if the purpose is to bring an area of the navigable waters into a use to which it was not previously subject. https://www.law.cornell.edu/uscode/text/33/1313 ; https://www.law.cornell.edu/uscode/text/33/1344
  • Richard Nixon, Veto of the Federal Water Pollution Control Act Amendments of 1972, 17 October 1972. Objects to S. 2770's unconscionable $24 billion price tag; 'staggering, budget-wrecking $24 billion'; hopes one third plus one in one House will sustain the veto. American Presidency Project note: S. 2770 was enacted over the President's veto on October 18, 1972, as Public Law 92-500 (86 Stat. 816). https://www.presidency.ucsb.edu/documents/veto-the-federal-water-pollution-control-act-amendments-1972
  • U.S. Senate, Vetoes by President Richard Nixon. S. 2770, To amend the Federal Water Pollution Control Act, vetoed Oct 17. 'Veto overridden by the House on Oct 18 by vote No. 459 (247-23). Veto overridden by the Senate on Oct 17 by vote No. 571 (52-12). Veto overridden.' https://www.senate.gov/legislative/vetoes/NixonR.htm
  • Congressional Research Service, Clean Water Act: A Summary of the Law, RL30030, updated 18 October 2016 (Laura Gatz). 1948 Act: first comprehensive federal interest; no federally required goals, objectives, limits; interstate enforcement only with originating-state consent. 1965: state standards for interstate waters. Late 1960s: enforcement too time-consuming; hard to link a discharger to stream-quality violations. 1972 'did not continue the basic components of previous laws as much as it set up new ones.' Objective and two goals (zero discharge by 1985; 'fishable' and 'swimmable' by mid-1983 where possible); 'those dates have passed, the goals remain.' Technology-forcing: BPT and secondary treatment by 1 July 1977; BAT by 31 March 1989. 'All discharges into the nation's waters are unlawful, unless specifically authorized by a permit.' 1987 amendments authorized nonpoint-source measures. Table 1: 1948 P.L. 80-845; 1972 P.L. 92-500; 1977 Clean Water Act of 1977 P.L. 95-217; 1987 Water Quality Act P.L. 100-4. https://www.congress.gov/crs-product/RL30030
  • Sackett v. EPA, 598 U.S. ___ (2023), decided 25 May 2023. Syllabus: CWA's use of waters in § 1362(7) refers only to geographical features described in ordinary parlance as streams, oceans, rivers, and lakes, and to adjacent wetlands that are indistinguishable from those bodies due to a continuous surface connection. Two-step test, quoting the Rapanos plurality: relatively permanent body of water connected to traditional interstate navigable waters; continuous surface connection making it difficult to determine where the water ends and the wetland begins. Facts: Sacketts backfilled a lot near Priest Lake, Idaho; EPA claimed wetlands via a ditch, a creek, and the lake. https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf
  • Michael Rotman, 'Cuyahoga River Fire: The Blaze That Started a National Discussion,' Cleveland Historical (CSU Center for Public History + Digital Humanities). 22 June 1969 oil-slick fire near the Republic Steel mill; about $100,000 damage to two railroad bridges; not the first fire; Time photograph was the November 1952 fire; no picture of the 1969 fire is known; Mayor Carl Stokes press conference the next day. Treat as local documentary history of the symbol, not as a cause of P.L. 92-500. https://clevelandhistorical.org/items/show/63

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