The Clean Water Act: Rules and Policy

Rules

After Congress passes a law or statute, federal agencies generally establish rules or regulations that are published in the Code of Federal Regulations (C.F.R.). The regulations provide further detail on how the statute will be implemented and are required to be consistent with the statute. Sometimes they are not. For example, the U.S. Environmental Protection Agency (EPA) used regulations to exempt ship discharges from requiring water pollution discharge permits, a decision that was overturned through a petition to EPA followed by a series of lawsuits by NWEA.

Policy

In addition to regulations, agencies such as EPA issue guidance documents that provide even more detail about how the agency intends to meet the statute and regulations. Most guidance is in the form of guidance documents but sometimes it is set out in memoranda or letters. While EPA is required to take public comment on proposed regulations, only sometimes does it offer the public an opportunity to comment on guidance. In some instances, neither the Clean Water Act nor the regulations address a policy matter, leaving guidance as the only place in which EPA articulates its policies. EPA’s water pollution trading guidance is an example of a major policy that has no basis in the law.

When states are charged with implementing the Clean Water Act and its federal regulations, they often create their own statutes, regulations, and guidance. These state laws and policies are not always consistent with the federal laws they are required to implement. Even more insidious are the ways in which states may appear to be carrying out federal law—for example by issuing water pollution discharge permits—while failing to meet the applicable federal requirements. These state policies are often not put in writing; they only become obvious when one examines the state’s regulatory actions.

NWEA Actions

NWEA provides comments on and participates in federal rulemaking and policy initiatives when possible. For example, NWEA Executive Director Nina Bell represented environmental interests on EPA’s Federal Advisory Committee on the Total Maximum Daily Load (TMDL) Program from 1996-1998. NWEA has filed Freedom of Information Act (FOIA) requests to better illuminate how EPA runs its Clean Water Act programs and other agencies carry out related laws.