Page 44 - Highway Engineering Handbook Building and Rehabilitating the Infrastructure

ENVIRONMENTAL ISSUES 27

for all contaminants in surface waters, and provided funding for the construction of sewage
treatment plants under the construction grants program. It also recognized the need for
planning to address the critical problems posed by nonpoint source pollution.
One of the mechanisms to achieve the objectives of the CWA is the prohibition of dis-
charges, including dredge and fill material, into navigable waters. The CWA made it
unlawful for any person to discharge any pollutant from a point source into navigable
waters, unless a permit was obtained under its provisions. Sections 402 and 404 of the
CWA establish two complementary permit programs through which appropriate federal or
state officials may authorize the discharge of pollutants.
Section 402 of the CWA has led to development of the National Pollutant Discharge
Elimination System (NPDES) under which permits are issued for the discharge of material
that is other than dredge or fill, including storm water runoff from highway facilities into
navigable waters.
Under subsections 402(p)(2)(C) and (D) of the CWA, storm water permits are neces-
sary for discharges from a municipal separate storm sewer system serving an incorporated
or unincorporated area with a population over 100,000. The EPA definition of municipal
separate storm sewer is “a conveyance or system of conveyances (including roads with
drainage systems, municipal streets, catch basins, curbs, gutters, ditches, manmade chan-
nels, or storm drains).” The definition goes on to specify that the system of conveyances
may be owned by any of a number of types of municipal governing bodies and specifically
includes states, that the conveyances must be specifically designed for the purpose of
collecting or conveying storm water, and that they are not to be part of a combined sewer
or part of a publicly owned treatment works (POTW).
Section 404 of the CWA has led to the development of a permit program adminis-
tered by the USACOE for the deposition of dredged or fill materials into navigable
waters. The definition of navigable waters has been contested in several recent Supreme
Court decisions that have begun to limit the reach of the CWA permit authority in wet-
lands to areas that have a significant nexus with navigable waters. In June 2007, the
EPA and USACOE issued agency guidance regarding CWA jurisdiction following two
of these recent decisions the consolidated cases Rapanos v. United States and Carabell v.
United States [126 S. Ct. 2208 (2006)].
States often have overlapping jurisdiction with the USACOE regarding permitting of
actions within navigable waters. State permits related to navigation and wetland encroach-
ment are common and need to be taken into account when developing a project. State pro-
grams are usually more restrictive, with a more expanded definition of wetland boundaries
or a regulated buffer zone. In two states—Michigan and New Jersey—some permitting
authority has been ceded to the state, simplifying the process.
The CWA prohibits storm waters from being used to transport or collect wastes and
requires that standards for water pollution be established that do not diminish the uses of
the water. EPA has the authority to develop a framework of regulation that can be fully del-
egated to states once the EPA has approved their regulatory program. The CWA requires
states to establish a policy of nondegradation that protects and preserves water (J. T. Dufour,
California Environmental Compliance Handbook, California Chamber of Commerce,
Sacramento, 1993, pp. 72–74).
In the preamble of the November 1990 amendments to the CWA, EPA explains its deci-
sion to include state-owned highways as municipal separate storm sewers. EPA identifies dis-
charges from state highways as a significant source of runoff and pollutants and as one of the
“issues and concerns of greatest importance to the public” (Federal Register, Part II,
Environmental Protection Agency 40 CFR 122, 123, and 124, November 16, 1990, p. 48039).
To avoid the problems associated with multiple permittees for systemwide discharges,
the CWA regulations include a method whereby interconnected systems owned and oper-
ated by local agencies and state-owned highways in areas of medium to high population