Unit 2

Advanced Master Gardener – Water Program Manager Handbook

 

Unit 2 – Laws and Regulations

 

Water is an important resource and many laws and regulations have been enacted to protect water.  There are laws and regulations dealing with protecting water resources as well as protecting users of water resources.  There are laws and regulations that enable improvement of water resources or of land uses that help protect or improve water resources.  Master Gardeners study water partly because of these legal mandates.

Clean Water Act

 

The most all-encompassing law dealing with water is the Clean Water Act (CWA) of 1972.  An earlier Federal Water Pollution Control Act of 1948 established the basic structure for regulating discharge of pollutants into the waters of the United States, but the amendments of 1972 significantly reorganized the 1948 rules, established the Administrator of the U.S. Environmental Protection Agency (EPA) as the responsible enforcer.  The 1972 Amendments to the FWPCA of 1948 law became commonly known as the Clean Water Act, and has been amended several times.  Interpretation of the mandates of the CWA is an ongoing process involving citizens and the courts.

In general the CWA directs that the waters of the United States attain their designated uses.  Designated uses can include:

  • public water supply,
  • protection of fish and wildlife,
  • recreational,
  • agricultural,
  • industrial and
  • navigational water ways

The EPA is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters by preventing point and nonpoint pollution sources, providing assistance to publicly owned treatment works for the improvement of wastewater treatment, and maintaining the integrity of wetlands in order to attain or preserve those designated uses.  It does so by regulation.  For example, it establishes water quality criteria and requires permits for specific activities including discharges to surface waters as in the National Pollutant Discharge Elimination System (NPDES).

U.S. Code. 2013. 33 U.S.C. § 1251 et. seq. Water Pollution Prevention and Control. United States Government Printing Office. Accessed December 30, 2014. http://www.gpo.gov/fdsys/pkg/USCODE-2013-title33/pdf/USCODE-2013-title33-chap26.pdf.

U.S. Environmental Protection Agency. 2014. “Summary of the Clean Water Act.” Accessed December 30, 2014. http://www2.epa.gov/laws-regulations/summary-clean-water-act.

What is protected under the CWA?

 

The CWA does not directly address groundwater contamination.  Groundwater is protected by certain provisions of the Safe Drinking Water Act, The Resource Conservation and Recovery Act, and the Superfund Act.  The CWA provisions focus on surface water and particularly the waters of the United States (WoUSA).  The initial legislation limited protections to navigable waters which implied a commerce connection.  Which waters are covered is a source of considerable disagreement and has been addressed many times in the courts.  As of 2006 the U.S. Supreme Court has held that the term “waters of the United States”

“…includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,] … oceans, rivers, [and] lakes.” (Rapanos v. United States, 2006)

Justice Kennedy successfully added the concept of “significant nexus.”  This concept is what saves waters or wetlands demonstrated to be connected to WoUSA as defined above and regulated under federal law.  Some states, including Virginia protect isolated or non-tidal wetlands that do not fit the definitions above.

Rapanos et ux., et al. v. United States. 2006. Legal Information Institute, Cornell University Law School. Accessed December 30, 2014. http://www.law.cornell.edu/supct/html/04-1034.ZS.html.

Section 404

 

Section 404 is a part of the CWA relating to a number of issues important to Master Gardeners and their communities, creating opportunities for Advanced MG Water Program Managers.  Given that MGs routinely receive questions about shoreline erosion, wetlands or wet spots, and sometimes landscaping approaches that could run afoul of Section 404 (e.g. filling wet spots, damming small streams, etc.), it is important for Advanced MGs and their water program volunteers to become familiar with these concepts and be prepared to offer alternative suggestions and approaches to meet community and individual landowner needs.

Dredging, filling and wetlands are covered under Section 404.  This part of the CWA requires that permits be obtained from the U.S. Army Corps of Engineers prior to dredging, filling and destruction of wetlands.  There are a number of activities deemed so routine or innocuous that a series of “General Permits” exist for such things as installation of power lines, repairs to existing structures, etc.

In order to obtain a Section 404 permit the applicant must certify that the action or project meets state water quality standards.  This permit, termed a Section 401 permit, must be obtained prior to the disturbance from the Virginia Department of Environmental Quality.  In other words, a federally required permit (Section 404) also requires a State required permit (Section 401) prior to the start of the project.

Virginia Department of Environmental Quality. No date. “Wetlands and Stream Protection.” Accessed December 29, 2014. http://www.deq.virginia.gov/Programs/Water/WetlandsStreams.aspx.

NPDES

 

The National Pollutant Discharge Elimination System is authorized by the Clean Water Act.  As authorized by the Clean Water Act, the National Pollutant Discharge Elimination System (NPDES) permit program controls water pollution by regulating point sources that discharge pollutants into waters of the United States.  Point sources are discrete conveyances such as pipes or man-made ditches.  Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters.  In most cases, the NPDES permit program is administered by authorized states. As we will see the NPDES approach is being applied to stormwater by the MS4 requirements for permits.

Impaired waters

 

Under section 303(d) of the Clean Water Act, states, territories, and authorized tribes are required to develop lists of impaired waters. These are waters that are too polluted or otherwise degraded to meet the water quality standards set by states, territories, or authorized tribes. In other words, waters that do not attain their designated uses.

Total Maximum Daily Loads (TMDLs)

 

When WoUSA are listed as impaired, states (or territories or tribes) are required to prioritize them and develop plans for the impaired waters to attain their designated uses.  One of the methods employed is the development of a Total Maximum Daily Load (TMDL).  The TMDL is a calculation of the maximum amount of a given pollutant that a waterbody can receive and still safely meet water quality standards.

U.S. Environmental Protection Agency. 2014. “Impaired Waters and Total Maximum Daily Loads.” Accessed December 29, 2014. http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/.

Rivers and Harbors Act

 

The Rivers and Harbors Act of 1824 established the Army Corps of Engineers as having the authority of maintaining our nation’s navigable waters.  This established the primacy of the Corps of Engineers in regulations pertaining to wetlands, since some of them are WoUSA.  The Rivers and Harbors Act of 1884 established the Corps of Engineers as responsible for preventing and removing any obstructions in the navigable WoUSA, thus enabling the Corps to prevent such actions as draining of wetlands or un-permitted dams.  Finally, the earliest federal environmental law in existence, the Rivers and Harbors Act of 1890 makes it a misdemeanor to discharge refuse matter of any kind into the navigable waters, or to excavate or fill or dam harbors, WoUSA or tributaries.

 

U.S. Environmental Protection Agency. 2012. “Section 10 of the Rivers and Harbors Appropriation Act of 1899.” Accessed December 30, 2014. http://water.epa.gov/lawsregs/guidance/wetlands/sect10.cfm.

Safe Drinking Water Act

 

The Safe Drinking Water Act of 1974 required EPA to establish national primary drinking water regulations for contaminants that may cause adverse public health effects.  The regulations have included mandatory levels and non-enforceable health goals.  The standards are organized into 6 groups:

  • Microorganisms – EPA has issued standards for Cryptosporidium, Giardia lamblia, Legionella, coliform bacteria and enteric viruses.       EPA also requires two microorganism-related tests to indicate water quality: plate count and turbidity.
  • Disinfectants – Some of the disinfectants used to prevent microorganisms in drinking water are harmful in themselves. The EPA has issued standards for chlorine, chloramine and chlorine dioxide.
  • Disinfection Byproducts – Breakdown products of disinfectants can themselves be harmful at excessive concentrations. Thus the EPA has issued standards for bromate, chlorite, haloacetic acids and trihalomethanes.
  • Inorganic Chemicals – EPA has issued standards for antimony, arsenic, asbestos, barium, beryllium, cadmium, chromium, copper, cyanide, fluoride, lead, mercury, nitrate, nitrite, selenium and thallium. In addition, lead based plumbing requirements have been established. Lead in drinking water nearly always arises from lead-based pipes and solder in copper plumbing at the homeowners end and not from the water treatment plant. Among other aspects of this rule, many water samples from the tap are required rather than samples from the treatment plant to ensure safety from lead in drinking water.
  • Organic Chemicals – EPA
  • Radionuclides – EPA has issued standards for alpha particles, beta particles and photon emitters, radium and uranium.

Interestingly, the Safe Drinking Water Act covers ground water only in so far as it is used as drinking water.  The Safe Drinking Water Act does not cover bottled water.  Bottled water regulations are under the purview of the Food and Drug Administration.

U.S. Code. 2013. 42 U.S.C. § 300f et. seq. Safety of Public Water Systems. United States Government Printing Office. Accessed December 30, 2014. http://www.gpo.gov/fdsys/pkg/USCODE-2013-title42/pdf/USCODE-2013-title42-chap6A-subchapXII.pdf.

U.S. Environmental Protection Agency. 2016. “Summary of the Federal Insecticide, Fungicide, and Rodenticide Act.” Accessed September 5, 2016. https://www.epa.gov/laws-regulations/summary-federal-insecticide-fungicide-and-rodenticide-act.

 

Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)

 

The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) is a law set up predominantly to protect applicators and consumers from pesticides.  In 1972 there was a significant revision that expanded the EPA’s authority to oversee sales and use of pesticides to preserve both human health and the environment.  After this revision, understanding the fate and actions of the pesticide in the environment and to non-target organisms requires manufacturers to provide information regarding fate to EPA for regulatory purposes and on the label for consumer protection.

U.S. Code. 2013. 7 U.S.C. § 135 et. seq. Insecticides and Environmental Pesticide Control. United States Government Printing Office. Accessed December 30, 2014. http://www.gpo.gov/fdsys/pkg/USCODE-2013-title7/pdf/USCODE-2013-title7-chap6.pdf.

U.S. Environmental Protection Agency. 2012. “Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).” Accessed December 30, 2014. http://www.epa.gov/agriculture/lfra.html.

 

Constitution of Virginia

 

Article XI of the Constitution of Virginia is devoted to Conservation.  The article states that it is the policy of the Commonwealth to “conserve, develop and utilize its natural resources.”  Further, Article XI states that “it shall be the Commonwealth’s policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction for the benefit, enjoyment, and general welfare of the people of the Commonwealth.”   The General Assembly is permitted to further these policies by entering into public-private partnerships or partnerships with federal agencies.

Constitution of Virginia, Article XI, Conservation, Section 1. Accessed August 22, 2016. http://law.lis.virginia.gov/constitution/article11/section1.

 

Virginia Tidal Wetlands Act

 

This law was enacted in 1972 and revised in 1982.  It recognizes the environmental value of tidal wetlands and establishes a permitting system for impacts to tidal wetlands, including vegetated tidal wetlands and non-vegetated shoreline between low and mean high water.  Tidal wetlands are defined as the mean high tide line where there is no vegetation and 1.5 times the mean high tide line when wetlands are present.

The Virginia Marine Resources Council (VMRC) is the regulating authority for tidal wetlands, although localities have the option to regulate their own tidal wetlands through citizen Wetlands Boards, with oversight from VMRC.  The law regulates activities that disturb tidal wetlands.

Code of Virginia. § 28.2-1200. Fisheries and Habitat of the Tidal Waters: Submerged Lands. Accessed August 22, 2016. http://law.lis.virginia.gov/vacodefull/title28.2/chapter12.

Code of Virginia. § 28.2-1300. Fisheries and Habitat of the Tidal Waters: Wetlands. Accessed August 22, 2016. http://law.lis.virginia.gov/vacode/title28.2/chapter13.

Virginia Nontidal Wetlands Act

 

As mentioned previously, the changing definition of WoUSA left wetlands that could not show a significant nexus to WoUSA without protection under the federal CWA and Rivers and Harbors Acts.  Some states have provision for protection of all wetlands.  Virginia achieved this protection by enacting the Nontidal Wetlands Act in 2000.  This law removes the dependence on federal jurisdiction and federal 404 and 401 permits and regulates nontidal wetlands in Virginia under the State Water Control Law.  The law also required development of voluntary and incentive-based programs to achieve a net resource gain in wetlands.  It does not exist as a separate law and set of regulations, but exists as a multitude of amendments to the Virginia State Water Control Law cited below.

 

Virginia State Water Control Law

 

This law establishes the Virginia Water Protection (WVP) Permit Program.  The VWP program provides detailed standards and procedures for: dredge, fill, or discharge of pollutant into, or adjacent to surface waters; other alteration of the physical, chemical or biological properties of surface waters; excavation in wetlands; and the withdrawal of water from a surface water body. Regulations also list exemptions and establish VWP general permits and outline compensatory mitigation requirements and procedures.

Code of Virginia. § 62.1-44.15:20. Virginia Water Protection Permit. Accessed September 5, 2016. http://law.lis.virginia.gov/vacode/title62.1/chapter3.1/section62.1-44.15:20.

 

Chesapeake Bay Preservation Act (the Bay Act)

 

The Chesapeake Bay Preservation Act, the “Bay Act,” establishes water quality protection measures.  An important aspect of this law and its revisions is the establishment of Resource Protection Areas (RPAs).  RPAs are land along the shorelines of streams, rivers, and other waterways, (including tidal wetlands) and all water bodies with perennial flow.  Within an RPA, certain activities are regulated, such as building and tree cutting.   Advanced Master Gardeners should be aware of RPAs when programs include giving advice regarding landscaping, fertilization and other activities within RPAs.  Water Program Managers must be prepared for clients that require education regarding allowable practices and be able to suggest preferred alternatives to illegal activities within those RPAs.

Code of Virginia. § 10.1, Conservation. Accessed September 5, 2016. http://law.lis.virginia.gov/vacode/title10.1/chapter21.1.