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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities 3 The Clean Water Act Congress first enacted the Federal Water Pollution Control Act (FWPCA) in 1948. Substantial amendments to that act—first in 1972 and again in 1977—created the statute now known as the Clean Water Act. Congress amended the FWPCA repeatedly from 1956 on; however, substantial amendments in 1972 created the contemporary structure of the act, which acquired the name “Clean Water Act” in 1977. The 1972 amendments represented a significant change in approach in that they shifted the emphasis in water quality regulation from an earlier focus on state-level water quality standards, to a federal permitting scheme setting technology-based and water quality-based effluent limits for individual dischargers. Moreover, Congress designed the 1972 act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” (Section 101(a)). The Clean Water Act authorizes water quality programs, requires state water quality standards, requires permits for discharges of pollutants into navigable waters, and authorizes funding for wastewater treatment works, construction grants, and state revolving loan programs. The act underwent subsequent amendments in 1981, 1987, and 1990. The U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers, and the states are jointly responsible for implementing the Clean Water Act and for achieving the goals of attaining water quality that is, according to the act, at least “fishable and swimmable.” In general, the Clean Water Act requires states to establish water quality standards for waters within their borders by designating specific uses for their waters (so-called designated uses) and establishing criteria by which to protect those uses, control pollutant sources, and monitor and assess water quality.
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities States are responsible for submitting periodic water quality assessment reports—Section 305(b) reports—and lists—Section 303(d) lists—of impaired waters to the EPA. They then are supposed to restore impaired waters by developing Total Maximum Daily Loads (TMDLs), which are limits that in theory, if fully implemented, should ensure that the state’s waters achieve the relevant quality standards. The EPA establishes federal guidance water quality criteria and oversees the establishment of state water quality standards to ensure that they are consistent with the requirements of the Clean Water Act, including ensuring that state-adopted water quality criteria are sufficient to attain the designated uses assigned by the state.The EPA also oversees state National Pollutant Discharge Elimination System (NPDES) permitting, issuing NPDES permits to dischargers in states that have not assumed this permitting authority and helping to resolve interstate water pollution issues. Finally, the U.S. Army Corps of Engineers implements the “dredge-and-fill” (wetlands) permit program in almost all states, subject to EPA oversight. The Clean Water Act (CWA) is a lengthy and complex body of legislation, and this chapter does not attempt to examine all of its provisions. Instead, for purposes of this report and its emphasis on the Mississippi River, the chapter focuses on the CWA sections and the federal and state authorities and responsibilities that are important in understanding Clean Water Act applications and challenges along the Mississippi River. This report focuses on point and nonpoint source pollution of the mainstem Mississippi River, not ancillary issues that may arise with regard to the dredging and filling of wetlands. As a result, at the federal level, this report focuses on EPA’s regulatory authority, not that of the Corps of Engineers. The EPA’s jurisdiction to regulate discharges of pollutants into the Mississippi River and its major tributaries is clear, despite recent U.S. Supreme Court decisions and agency guidance regarding the extent of federal jurisdiction over wetlands and isolated waters. This chapter also discusses interstate and federal-state water quality interactions and the relevance of the CWA to these interactions. The chapter is divided into four sections: origins of the Clean Water Act; Federal Water Pollution Control Act amendments of 1972; state-level authority in protecting water quality; and interstate water quality protection. ORIGINS OF THE CLEAN WATER ACT The Refuse Act Congress enacted the Rivers and Harbors Act of 1899 to preserve and enhance navigation in the nation’s waters. Section 13, the Refuse Act, prohibits pollution of the nation’s “navigable waters.” The language of Section
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities 13 is broad, and throughout the 1960s the federal government increasingly used it to prosecute water pollution cases. In an attempt to formalize the federal government’s use of the Refuse Act to address water pollution, President Richard Nixon in 1970 ordered the Corps of Engineers and the administrator of the newly formed Environmental Protection Agency “to implement a permit program … to regulate the discharge of pollutants and other refuse matter into the navigable waters of the United States or their tributaries” (Nixon, 1970). These agencies promulgated their regulations within a year, creating the first federal water pollution permit program in the United States. Nevertheless, despite the breadth of the Refuse Act’s language and Supreme Court rulings upholding the use of that act to punish polluters, the Rivers and Harbors Act’s focus on navigation limited its usefulness for water quality regulation. In particular, the only waters subject to the Refuse Act are waters that are or can be made navigable-in-fact, including waters subject to the ebb and flow of the tide (33 C.F.R. Section 329.4). Thus, the Refuse Act could not address water quality problems comprehensively, even with the new permit program. This prompted Congress to expand the definition of regulated “navigable waters” in the Clean Water Act to encompass “the waters of the United States, including the territorial seas” and at least some non-navigable-in-fact waters, as discussed more fully below. The Federal Water Pollution Control Act of 1948 Congress addressed more general water quality concerns through the Federal Water Pollution Control Act of 1948. The FWPCA was not a regulatory program, however; instead, its primary purpose was to encourage states to improve water quality, largely through federal grants and loans for the construction of publicly owned treatment works (POTWs, or sewage treatment plants; FWPCA, 1948). Under this act, the federal Surgeon General (the EPA did not exist until 1970) could institute abatement actions, but only to protect interstate waters and only to abate pollution “which endangers the health or welfare of persons in a state other than that in which the discharge originates” (FWPCA, 1948, Section 2(d)). Congress amended the FWPCA in 1952, 1956, 1961, 1965, 1966, and 1970, slowly expanding the federal government’s abatement authority. In 1961, for example, Congress allowed the Secretary of Health, Education, and Welfare to bring abatement actions when pollution of any navigable-in-fact water (as opposed to interstate waters) affected the health or welfare of any person (FWPCA Amendments, 1961). In 1966, federal enforcement authority expanded again; this time Congress gave the Secretary of the Interior authority to take abatement actions to control pollution of inter-
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities national waters, through the Clean Water Restoration Act of 1966 (CWRA, 1966). However, until 1972 Congress had never created a general federal permit program to control water pollution. Instead, in 1965 Congress amended the FWPCA to create a state-focused, water quality standards approach to water quality regulation (WQA, 1965). Under these amendments, states could continue to receive federal grants and loans to aid in water quality improvements, but now only if they established water quality standards. However, the federal government could eventually set water quality standards for any states that refused to do so. Slow progress by the states in establishing water quality criteria and related programs raised interest in a technology-based regulatory approach and prompted the passage of amendments in 1972. Another significant problem with the 1965 water quality standards program was the difficulty of enforcing an ambient standard regime without source-specific limitations. FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972 Congress enacted the contemporary version of the Clean Water Act through the Federal Water Pollution Control Act Amendments of 1972 (FWPCA, 1972), which set out “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” (Section 101(a)). More specifically, the act established “national goal[s] that the discharge of pollutants into the navigable waters be eliminated by 1985” and “that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983”—the act’s so-called (and still unattained) fishable and swimmable goal (Section 101(a)(1), (2)). The 1972 amendments pursued these goals by transforming the FWPCA’s previously state-focused water quality standards approach into a federal permitting scheme based primarily on end-of-the-pipe effluent limitations for individual dischargers (Craig, 2004). Table 3-1 lists the major sections of the Clean Water Act. This table illustrates clearly the act’s broad scope. It encompasses sewage and industrial waste treatment (Title II), point source discharge permitting (Section 402), ambient water quality objectives (Section 303), state water quality standards, TMDLs and reporting requirements (Sections 303 and 305), nonpoint source management (Section 319), water quality in estuaries (Section 320), ocean discharges (Section 403), wetland protection (Section 404), and other aspects of protection and restoration of surface water quality in the United States.
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities TABLE 3-1 Major Clean Water Act Provisions Section 101, 33 U.S.C. § 1251 Congressional goals and policies Section 103, 33 U.S.C. § 1253 Interstate cooperation Section 106, 33 U.S.C. § 1256 Grants for pollution control programs Title II, §§ 201-221, 33 U.S.C. §§ 1281-1301 Grants for the construction of POTWs Section 208, 33 U.S.C. § 1288 Areawide waste treatment management programs Section 301, 33 U.S.C. § 1311 Act’s basic prohibition; technology-based effluent limitations Section 302, 33 U.S.C. § 1312 Water quality-based effluent limitations Section 303, 33 U.S.C. § 1313 Water quality standards; TMDLs Section 305, 33 U.S.C. § 1315 State water quality reporting Section 309, 33 U.S.C. § 1319 Enforcement Section 319, 33 U.S.C. § 1329 Nonpoint source management programs Section 320, 33 U.S.C. § 1330 National estuary program Section 401, 33 U.S.C. § 1341 State certification of federally authorized activities Section 402, 33 U.S.C. § 1342 NPDES permit program Section 403, 33 U.S.C. § 1343 Ocean discharge criteria Section 404, 33 U.S.C. § 1344 Dredge-and-fill permit program Section 502, 33 U.S.C. § 1362 Definitions Section 505, 33 U.S.C. § 1365 Citizen suits Section 510, 33 U.S.C. § 1370 State authority Three aspects of the current Clean Water Act are particularly relevant to Mississippi River water quality and are discussed in the following sections: (1) the sewage treatment works or POTW construction grant and loan programs (which carried over from the pre-1972 versions of the FWPCA); (2) the two federal permit programs incorporated in the Clean Water Act, especially the NPDES permit program, but also the Section 404 dredge-and-fill permit program; and (3) a continuing water quality standards program, with new provisions to ensure linkage between permitting and overall water quality protection. Federal Funding for Sewage Treatment Plants The National and Interstate Problem of Sewage Pollution The direct discharge of untreated sewage into the nation’s waterways was a well-recognized public health problem that stimulated water quality protection legislation long before Congress enacted even the original FWPCA in 1948. Indeed, uncontrolled and lightly controlled discharges of sewage into interstate waterways—especially the Mississippi River and its tributaries—inspired much of the nation’s pre-1972 interstate pollution
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities law, based on the federal common law of nuisance. Progress in addressing the problem of untreated sewage discharges was steady but slow prior to the Clean Water Act of 1972. Fittingly, it was an interstate sewage pollution case that established the Clean Water Act’s supremacy regarding the regulation of water pollution. In 1972, Illinois sued four Wisconsin cities and two Wisconsin sewage commissions regarding their sewage pollution of Lake Michigan. By the time the case made its way to the Supreme Court for a final resolution almost a decade later, the Clean Water Act was firmly established as Congress’s comprehensive regulatory regime for protecting and restoring water quality. Thus, while interstate water pollution lawsuits involving sewage pollution remain an important aspect of interstate water quality interactions, the Clean Water Act’s requirements for sewage treatment and for interstate negotiations now control such conflicts (Craig, 2004). The Clean Water Act and Sewage Treatment Congress’s approach to addressing sewage pollution through the Clean Water Act has been twofold. First, because collection and treatment of sewage generally is considered a government responsibility, Congress has provided funding to state and local governments to improve their sewage treatment capacity through the construction and improvement of POTWs. Second, Congress subjected these POTWs to a number of regulatory requirements to reduce the impact of their discharges on the nation’s waterways. With respect to sewage treatment capacity, the federal government began funding the construction of POTWs as early as the 1956 amendments to the FWPCA (WPCAA, 1956). However, Congress greatly expanded this grant program (known as the “construction grants program”) in Title II of the Clean Water Act of 1972. Although grants initially were available for any POTW-related project, from October 1984 on, grants “shall be made only for projects for secondary treatment or more stringent treatment, or any cost effective alternative thereto, new interceptors and appurtenances, and infiltration-in-flow correction” (Section 201(g)). Title II authorized grant funds through FY 1990, ranging from $1 billion to $7 billion per year, which could pay up to 55 percent of each project’s total costs (Section 207). By 1999, Congress had authorized $65 billion and had appropriated $73 billion for the grant program, resulting in the construction of thousands of new POTWs. However, by 1989, the Title VI Clean Water State Revolving Fund (CWSRF) program had replaced the Title II grants program. Under this program, the EPA administrator “make[s] capitalization grants to each State” (Section 601(a)), which the states can then use to make loans to municipalities for three purposes: (1) to construct or improve POTWs; (2)
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities to implement states’ nonpoint source management program; and (3) to develop management plans under the National Estuary Program. To receive the initial grant, each state had to agree to a number of conditions, including matching at least 20 percent of the grant with state funds. Congress initially authorized a total of $8.4 billion for CWSRF capitalization grants for FY 1989 through FY 1994 (Section 607), but it appropriated far more. “Since 1987, states have used 96 percent (about $50 billion) of their CWSRF dollars to build, upgrade, or enlarge conventional wastewater treatment facilities and conveyances. Projects to build or improve wastewater treatment plants alone account for over 60 percent of this amount, with the remainder supporting the construction or rehabilitation of sewer and storm water collection systems” (GAO, 2006a). States use the remaining 4 percent for nonpoint source control in Section 319 programs. The Title II grant program and the Title VI CWSRF program have financed the construction and improvement of thousands of POTWs. For example, in 1972, only 32 percent of the nation’s population was served by sewage treatment plants; by 1998, 74 percent of the population had such service (USEPA, 2003a). This program thus produced measurable improvements in the quality of the nation’s waters, including the Mississippi River (Meade, 1995). The program—specifically, the construction and improvement of sewage treatment works—also resulted in some improvements to fish populations in the Mississippi River basin (see, for example, Lerczak and Sparks, 1995). Beyond the construction of sewage treatment infrastructure is the issue of adequate sewage treatment within existing POTWs. Such treatment can be complicated by combined sewer overflow (CSO) events, which occur because many older sewer systems carry both sewage and stormwater runoff to the POTW. Although these systems normally are designed to handle small storm events, large storms often result in untreated discharges to surface waters. Moreover, in addition to the domestic sewage, POTWs receive industrial wastes, including some toxic pollutants that are discharged directly to waterways during CSO events. POTWs also can channel toxic pollutants into waterways from indirect dischargers. The Clean Water Act addresses these POTW-related water quality problems in three main ways. First, POTWs that discharge into the nation’s waters are subject to the act’s National Pollutant Discharge Elimination System permit program, described below. Moreover, NPDES permits for POTWs must contain effluent limitations at least as stringent as secondary treatment (Section 301(b)(1)), requiring POTWs to engage in biological treatment of the sewage in addition to settling of particles in primary treatment. Second, Congress amended the Clean Water Act specifically to address CSO problems. The act now requires that “each permit, order, or decree issued pursuant to [the Clean Water Act] … for a discharge from a munici-
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities pal combined storm and sanitary sewer shall conform to the [EPA’s 1994] Combined Sewer Overflow Control Policy” (Section 402(q)). The EPA’s policy required that POTWs establish nine minimum controls on combined sewer systems by January 1, 1997 (USEPA, 1994). In addition to the nine minimum controls, communities with combined sewer systems are required to develop long-term plans to control combined sewer overflow events as necessary to meet water quality standards (USEPA, 1994). The control of combined sewer overflows, however, remains a significant national water quality issue (USEPA, 2003a). Third, indirect dischargers—industrial dischargers that discharge into sewers leading to POTWs rather than into waterways—have been recognized as a threat to water quality almost as long as the 1972 Clean Water Act has been in existence. Indirect dischargers must pretreat effluent before sending it to the POTW in order to eliminate or reduce pollutants—generally toxic pollutants—“which are determined not to be susceptible to treatment by such treatment works or which would interfere with the operation of such treatment works” (Section 307(b)). As such, the pretreatment program seeks to eliminate “pass-through” pollution problems that otherwise occur when industrial dischargers, often seeking to avoid having to obtain their own NPDES permit, interfere with or pass through the POTWs. Federal Permit Programs for Point Sources The Clean Water Act’s most basic prohibition for individual dischargers states that “except as in compliance with [the Act], the discharge of any pollutant by any person shall be unlawful” (Section 301(a)). Behind this seemingly simple prohibition, however, are several definitional complexities. The Clean Water Act defines a “person” to be “an individual, corporation, partnership, association, state, municipality, commission, political subdivision of a State, or any interstate body” (Section 502(5)). Notably absent from this list is the federal government, but the Clean Water Act does require federal facilities to comply with the act’s requirements “in the same manner, and to the same extent as any nongovernmental entity” (Section 313). Thus, persons covered by the Clean Water Act are broadly defined. More importantly, the Clean Water Act (Section 502(12)) defines the phrase “discharge of a pollutant” to mean: (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft. The Clean Water Act further defines most of the terms in this definition. First, “point source” is defined broadly to include “any discernible,
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities confined, and discrete conveyance” (Section 502(14)) such as pipes and ditches. Although this definition is broad, it does not cover all sources of water pollutants. By negative implication, any source of water pollutants that is not a point source is a nonpoint source, and the Clean Water Act’s focus on “discernible, confined, and discrete conveyances” generally means that diffuse sources of water pollutants, such as agricultural or urban runoff or atmospheric deposition, do not qualify as point sources. The Clean Water Act assigns regulation of nonpoint source pollution to the states (Section 319). Second, like point source, the Clean Water Act defines “pollutant” broadly, to include “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water” (Section 502(6)). Given the breadth of the definitions of person, point source, and pollutant, the Clean Water Act’s basic prohibition effectively prohibits all human-controlled additions of almost any material into the navigable waters, the contiguous zone, and the ocean, with limited exceptions. Third, Congress purposely expanded the Clean Water Act’s jurisdictional waters beyond those included in the Rivers and Harbors Act of 1899. Specifically, “navigable waters” for the Clean Water Act are “the waters of the United States, including the territorial seas” (Section 502(7)). In turn, the “territorial seas” are the first 3 miles of ocean extending from shore (Section 502(8)). As a practical matter, the Clean Water Act’s navigable waters designate all of the waters that generally are subject to state jurisdiction, including both the inland waters (lakes, rivers, streams, and some wetlands) and, at least roughly, the offshore coastal waters whose submerged lands were given to states by Congress in the Submerged Lands Act (SLA, 2006). The definition of navigable waters has become controversial as it applies to intrastate and apparently isolated wetlands or other waterbodies from both a statutory and a constitutional point of view. Since the 1985 decision in United States v. Riverside Bayview Homes (474 U.S. 121), the U.S. Supreme Court has struggled with the issue of how far CWA jurisdiction extends over wetlands and waterbodies that are obviously not navigable-in-fact. In that unanimous decision, the court held that the Clean Water Act extends to wetlands adjacent to navigable waters. In contrast, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (531 U.S. 159 (2001)), a bare majority of justices decided that the Clean Water Act does not extend to isolated waters—specifically, to ponds that were not hydrologically connected to navigable waters. Most recently, in Rapanos v. United States (04-1034 U.S. 04-1384, 126 S. Ct. 2208 (2006)),
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities the justices split 4-1-4 regarding the Clean Water Act’s applicability to wetlands adjacent to nonnavigable tributaries of traditionally navigable waters, leaving lower courts and regulators with no clear test for the act’s statutory and constitutional limitations. The proper constitutional balance between the states and the federal government—federalism—clearly was of concern. With respect to navigable, interstate rivers such as the Mississippi, however, Congress’s constitutional authority to regulate to protect water quality is uncontested. Moreover, the connection of upstream waters to the Mississippi River has been used to justify CWA jurisdiction over many tributaries and, more controversially, upstream wetlands. Indeed, in the 2006 Rapanos Supreme Court decision, concurring Justice Kennedy argued for precisely this approach, noting in particular the importance of wetlands to Mississippi River and Gulf of Mexico water quality issues. “Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular. To give just one example, “… nutrient-rich runoff from the Mississippi River has created a hypoxic, or oxygen-depleted, ‘dead zone’ in the Gulf of Mexico that at times approaches the size of Massachusetts and New Jersey…. Scientific evidence indicates that wetlands play a critical role in controlling and filtering runoff” (126 S. Ct. at 2246-47 [citations omitted]). The other two types of waters that the Clean Water Act covers are the “contiguous zone” and the “ocean.” Congress defined contiguous zone through a reference to the 1958 United Nations Convention on the Law of the Sea (Section 502(9)), and this zone refers to the area of ocean beyond the territorial sea, out to 12 miles. The ocean, in turn, is “any portion of the high seas beyond the contiguous zone” (Section 502(10)). In concert with what it claims to be customary international law, the United States asserts jurisdiction over a 200-nautical-mile-wide exclusive economic zone (EEZ) (Reagan, 1983) and has claimed a 200-nautical-mile-wide exclusive fishing zone since at least 1976 (see MSA, 1976). Thus, the Clean Water Act’s regulatory program extends 200 nautical miles out to sea (Craig, 2004). With respect to the Mississippi River, and in the context of this report, the Clean Water Act’s marine coverage is most relevant to the Mississippi River’s effects on the Gulf of Mexico. The act’s extension to the oceans gives the federal government legal authority to regulate water quality in the Gulf of Mexico out to 200 nautical miles. Moreover, state regulatory authority under the Clean Water Act extends only through the territorial sea, or 3 nautical miles offshore, although Florida and Texas do have more farreaching state jurisdiction over the waters of the Gulf of Mexico, extending to 3 marine leagues or about 12 nautical miles. Thus, consideration of Gulf of Mexico water quality generally necessitates state and federal cooperation, although Gulf of Mexico hypoxia occurs primarily in federal waters.
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities Section 404 Dredge-and-Fill Permit Program The Clean Water Act’s more limited permit program is the Section 404 permit program, more colloquially referred to as the dredge-and-fill or wetlands permit program. Under this program, the Secretary of the Army, acting through the U.S. Army Corps of Engineers, has the authority to “issue permits … for the discharge of dredged or fill material into the navigable waters at specified disposal sites” (Sections 404(a), 404(d)). States may acquire limited dredge-and-fill permitting authority (Section 404(g)), but to date only two states—Michigan and New Jersey—have done so (USEPA, 2007a). As a result, Section 404 permits remain almost entirely federal permits. The U.S. EPA oversees the Section 404 permitting program in two ways. First, it issued guidelines that govern all Section 404 permitting (Section 404(b)(1)), and these guidelines require dischargers of dredged and fill material to minimize their adverse impacts on aquatic ecosystems (40 C.F.R. Section 230.1(c)). Second, the EPA has the authority to veto any particular Section 404 permit for a proposed discharge (Section 404(c)), although it has exercised this authority only rarely. Given the CWA definition of “navigable waters,” the Section 404 permit program does not apply more than 3 nautical miles out to sea (Section 502(7); 33 C.F.R. Section 328.4(a)). In addition, the Clean Water Act also limits this permit program to discharges of dredged or fill material, eliminating discharges of all other Clean Water Act pollutants from its scope (Section 404(a)). For the Mississippi River, the Section 404 permit program most prominently applies to wetland filling activities along the river and its tributaries. For example, Section 404 permits have been required to build a marine terminal in coastal wetlands and to construct a sewer in wetlands along an Illinois River tributary (City of Shoreacres v. Waterworth, 332 F. Supp.2d 992, 1016-17 (S.D. Tex. 2004); United States v. Hummel, 2003 WL 1845365, at *4-*5 (N.D. Ill. 2003)). Wetland loss through dredging, draining, and filling has important implications for water quality in the Mississippi River. However, it is important to remember that most wetland loss in the Mississippi River Basin occurred before Congress enacted the 1972 amendments to the Federal Water Pollution Control Act, and Section 404 of the Clean Water Act has almost nothing to say about the restoration of these past wetland losses. Moreover, given the Mississippi River’s role in navigation and commerce, the Corps of Engineers has additional authority under other federal statutes, most notably the Rivers and Harbors Act of 1899, to engage in navigation-related dredging and construction activities that can continue to deplete Mississippi River wetlands. Therefore, although an environmentally conscious appli-
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities use interstate compacts for “cooperative effort and mutual assistance for the prevention and control of pollution and the enforcement of their respective laws relating thereto” and to establish interstate agencies to coordinate and enforce interstate regulation (Section 103(b)). However, unlike the states themselves, these interstate agencies no longer are entitled to federal funding. The Clean Water Act generally authorizes “grants to States and interstate agencies to assist them in administering programs for the prevention, reduction, and elimination of pollution” (Section 106). However, to be entitled to such grants, interstate agencies had to apply to the EPA by early 1973. Thus, interstate agencies created since then to address issues such as Mississippi River water quality are ineligible. Interstate Considerations in State NPDES Permitting The state delegation provisions impose interstate obligations on states that choose to issue NPDES permits. Specifically, in order to obtain NPDES permit program authority, each state had “to insure that … any other State the waters of which may be affected, receive[s] notice of each application for a permit and to provide an opportunity for public hearing before ruling on such an application” (Section 402(b)). In addition, each delegated state (Section 402(b)) must insure that any State … whose waters may be affected by the issuance of a permit may submit written recommendations to the permitting State (and the Administrator) with respect to any permit application and, if any part of such written recommendations are not accepted by the permitting State, that the permitting State will notify such affected State (and the Administrator) in writing of its failure to so accept such recommendations together with its reasons for so doing. Finally, the state issuing the permit must send copies of each permit application, permit action, and permit to the EPA administrator, who can object to the permit’s issuance. If the permit-issuing state does not adequately address EPA concerns regarding a downstream state’s water quality, the EPA can veto the state permit. Federal Interstate Authorities and Responsibilities EPA’s General Authority and Duty to Coordinate Transboundary Pollution Regulation The EPA has multiple sources of authority, and multiple duties, regarding efforts to control transboundary, and especially interstate, water pollution. Most generally, the EPA administrator has three overarching
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities mandatory duties regarding interstate water pollution issues. First, the EPA must “encourage cooperative activities by the States for the prevention, reduction, and elimination of pollution” (Section 103). Second, the EPA must “encourage the enactment of improved and, so far as practicable, uniform State laws relating to the prevention, reduction, and elimination of pollution” (Section 103). Finally, the EPA must “encourage compacts between States for the prevention and control of pollution” (Section 103). Various other Clean Water Act provisions reinforce these general federal coordination obligations regarding transboundary problems. For example, as noted, Congress gave the EPA responsibility for developing nonbinding guidance water quality criteria and information regarding the implementation of those criteria for states to use in their Clean Water Act programs (Section 304), and the EPA’s transboundary responsibilities extend into the international arena (Section 310). Some of the most important of the EPA’s interstate authorities and duties are described below. EPA’s Role in Addressing Federally Licensed or Permitted Sources of Interstate Pollution As discussed above, the Clean Water Act’s state certification provisions give states authority to condition federal licenses and permits to ensure that federally licensed activities do not violate state water quality standards and other water quality requirements. However, the certification provision also requires that other states potentially affected by the discharge—generally referred to as downstream states, but for border rivers such as the Mississippi, also including cross-stream states—be given the opportunity to ensure that their water quality requirements will be met, as well. Most importantly, “[i]f the imposition of conditions cannot ensure such compliance such agency shall not issue such license or permit” (Section 401(a)). Thus, downstream and cross-stream states are also given an opportunity to object to federal permits and licenses, as are the states in which the proposed discharge will originate. States have increasingly been exercising this authority to protect their water quality. It is, however, the EPA that represents and evaluates the interests of downstream and cross-stream states’ interstate water pollution concerns (see Arkansas v. Oklahoma, 503 U.S. 91 (1992)). Specifically, the federal licensing or permitting agency must notify the EPA administrator of the discharge, and “[w]henever such a discharge may affect, as determined by the Administrator, the quality of the waters of any other State, the Administrator within thirty days … shall so notify the other State” (Section 401(a)(2)). Affected (downstream or cross-stream) states then have 60 days to determine whether “such discharge will affect the quality of waters so as to violate any water quality requirement in such State”; if so, they can notify the EPA and the licensing agency of objections, and the EPA adminis-
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities trator must then hold a public hearing on the objections (Section 401(a)(2)). The EPA administrator presents the licensing agency with recommendations regarding the affected state’s objections. Then, that agency, “based on the recommendations of such State, the Administrator, and upon any additional evidence, if any is presented to the agency at the hearing, shall condition such license or permit in such manner as may be necessary to insure compliance with applicable water quality requirements” (Section 401(a)(2)). EPA’s Interstate Oversight of State NPDES Permitting As noted above, states that assume NPDES permitting authority also acquire interstate obligations to potentially affected downstream and crossstream states. However, the EPA is the final source of authority in addressing these interstate permitting issues. Ultimately, interstate considerations depend on the EPA’s authority to veto state-issued permits that do not consider interstate effects and to take over the permitting process for that NPDES permit. In keeping with congressional intent, the EPA rarely invokes its veto authority. However, federal courts have upheld the agency’s authority to take over the NPDES permitting process to address the concerns of downstream states. Thus, in Champion International Corp. v. EPA (850 F.2d 182 (4th Cir. 1988)), when Tennessee complained about an NPDES permit that upstream North Carolina was issuing and negotiations failed to resolve the issue, the U.S. Court of Appeals for the Fourth Circuit upheld the EPA’s issuance of an NPDES permit that included terms designed to address Tennessee’s concerns. EPA’s Authority to Convene Interstate Nonpoint Source Management Conferences When upstream nonpoint sources impair downstream water quality and interfere with the attainment of downstream water quality standards, the downstream state can petition the EPA to convene a management conference of all of the relevant states, with the goal of reaching an interstate agreement to regulate the upstream nonpoint sources sufficiently to achieve downstream water quality requirements (Section 319(g)). If the states reach such an agreement, moreover, they must incorporate that agreement into their respective nonpoint source management programs. These nonpoint source management conferences thus could result in the elimination of much state discretion in nonpoint source pollution management. Moreover, through EPA’s role and especially as a result of any interstate compact that might arise from the conference, which would have to be approved by Congress, interstate nonpoint source management conferences could effectively federalize this state-based area of water quality management.
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities Perhaps for these reasons, formal nonpoint source management conferences are not used as often as they might be. Several states, including Alabama, Kentucky, and the Long Island Sound states of New York and New Jersey have made use of the nonpoint source management conference concept and have solicited grants from the EPA to do so. One of the few formal Section 319(g) petitions to the EPA, however, was Louisiana’s petition regarding the Gulf of Mexico, which the EPA transformed into the Mississippi River-Gulf of Mexico Watershed Nutrient Task Force. As with the rest of the nation, interstate cooperation to address nonpoint source pollution in the Mississippi River tends to occur outside the CWA nonpoint source provisions. For example, the Mississippi River-Gulf of Mexico Watershed Nutrient Task Force is addressing nutrient pollution caused by both point and nonpoint sources along the entire river (USEPA, 2006a). In contrast, when states such as Louisiana work to address nonpoint source pollution of the Mississippi River through their own nonpoint source management programs, they do not appear to use the Clean Water Act’s conferencing mechanism (LDEQ, 1999). EPA-Led Interstate Management Conferences for the National Estuary Program In 1987, Congress established the Clean Water Act’s National Estuary Program (WQA, 1987). Once an estuary is selected for inclusion in the program because of its national significance, the CWA requires the EPA to hold a management conference in order to assess the overall water quality trends within the estuary, to “develop the relationship between the in place loads and point and nonpoint source loadings of pollutants in the estuarine zone and the potential uses of the zone, water quality, and natural resources,” and (Section 320(b)) to develop a comprehensive conservation and management plan that recommends priority corrective actions and compliance schedules addressing point and nonpoint sources of pollution to restore and maintain the chemical, physical, and biological integrity of the estuary, including restoration and maintenance of water quality, a balanced indigenous population of shellfish, fish and wildlife, and recreational activities in the estuary, and assure that the designated uses of the estuary are protected. The National Estuary Program thus provides states and the EPA with a mechanism for comprehensively addressing estuarine water quality, including point, nonpoint, and interstate sources of pollutants. There are seven National Estuaries along the Gulf coast, including the Barataria-Terrebonne Estuary in Louisiana (USEPA, 2006b).
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities Interstate Implications of EPA-Set TMDLs State-set TMDLs are predominantly intrastate in focus. For example, the Clean Water Act requires each state to identify water quality-limited waters for “those waters within its boundaries” and to establish TMDLs for those waters (Section 303(d)). Moreover, each state must then use the information generated as part of a continuing planning process within the state (Section 303(e)). Two kinds of interstate water quality authority issues are relevant to TMDLs. First, a downstream state with impaired waters might attempt to use the TMDL process to directly force particular point and nonpoint sources in upstream or cross-stream states to comply with more stringent discharge limitations and BMP requirements, respectively, in order to help achieve the downstream state’s water quality standards. Because sources within the upstream and cross-stream states are the regulatory province of those other states, the Clean Water Act’s TMDL provisions probably do not authorize downstream states to engage in this kind of direct cross-border regulation. For example, Florida, which is in the process of establishing a TMDL for mercury in the Everglades, recently implied that it lacked authority to reach out-of-state sources of mercury deposited via the air, even though such cross-boundary atmospheric deposition may be a significant nonpoint source of mercury pollution in the Everglades (FDEP, 2003). Second, TMDLs must deal with cross-border effects. As noted previously, TMDLs technically have an intrastate focus—the upstream state establishes TMDLs to meet its own water quality standards for its waters. Nevertheless, given that the Clean Water Act, as interpreted by EPA, imposes obligations on upstream states to protect downstream water quality through the adoption of their own water quality standards (40 C.F.R. Section 131.10), Section 303(d) effectively requires an upstream state to adopt a TMDL at a level such that it will prevent interference by its point and nonpoint sources with attainment of downstream state water quality standards. Otherwise stated, in achieving its own water quality standards through compliance with the TMDL, the upstream state will eliminate the downstream effects. Regardless of an upstream state’s interstate TMDL obligations, however, the EPA has the authority to establish TMDLs with both downstream and upstream interstate effects. There are also regulatory requirements (at least for point sources), in the form of more stringent discharge limitations, which are based on water quality criteria developed by the EPA explicitly to address interstate water quality problems. For example, the Clean Water Act requires the EPA to set TMDLs when states fail to do so (Section 303(d)), and the federal courts have upheld the EPA’s authority to set fed-
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities eral TMDLs even when only nonpoint source pollutants are contributing to the water quality impairment. The Clean Water Act also specifies that the EPA must “encourage the enactment of improved and, so far as practicable, uniform State laws relating to the prevention, reduction, and elimination of pollution” (Section 103). TMDLs certainly could be one mechanism for providing such encouragement, especially in combination with EPA-recommended water quality criteria for problematic pollutants. The EPA increasingly has been asserting its own interstate water quality authority. For example, the EPA has developed a watershed program to encourage states to address water quality issues cooperatively and comprehensively on a watershed basis (USEPA, 2006c; Box 7-2 further discusses EPA’s watershed approach to water management). The most active component of the EPA’s watershed program thus far is the targeted watershed grant program. Since 2003, the EPA has been funding projects designed to improve the overall water quality, fish productivity, and other qualities of targeted watersheds. Indeed, three targeted watershed projects funded in 2004—the Upper Mississippi River project in Iowa, the Sangamon River project in Illinois, and the Fourche Creek project in Arkansas—were designed specifically to address one of the largest interstate pollution problems: Gulf of Mexico hypoxia caused by Mississippi River pollution. There is also the potential of cross-border water quality trading to implement cross-border TMDLs (Chapter 6 contains further discussion of the water quality trading concept). As a practical matter, the EPA is already establishing TMDLs that must have interstate regulatory effects if they are to achieve water quality standards. For example, in February 2002, EPA Region 4 set a total mercury TMDL for the Ochlockonee River in Georgia (near its southern border) to satisfy a legal agreement (USEPA Region 4, 2002). Atmospheric deposition of mercury accounts for 99 percent of the mercury loading to the Ochlockonee watershed, and the sources of atmospheric mercury are both local and distant. Thus, achievement of the mercury water quality standard in the Ochlockonee River will require increased regulation of out-of-state sources, probably through the EPA’s interstate authority under the Clean Air Act. Addressing nutrient pollution in the mainstem Mississippi River to improve water quality in the Gulf of Mexico almost would certainly require TMDLs with interstate effects, as Gulf of Mexico TMDLs are already demonstrating. For example, as described in Box 3-3, interstate effects were inevitable when EPA Region 6 and Louisiana developed a mercury TMDL for the Louisiana coastal waters of the Gulf of Mexico. Finally, EPA’s reference water quality criteria must “accurately reflect the latest scientific knowledge … on the kind and extent of all identifiable effects on health and welfare … which may be expected from the presence
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities BOX 3-3 The EPA-Set Louisiana Coast-Gulf of Mexico Mercury TMDL In June 2005, EPA Region 6 and the State of Louisiana established a fish tissue mercury TMDL for the coastal bays and Gulf of Mexico waters of Louisiana (USEPA Region 6, 2005). This TMDL necessarily implicates the entire Mississippi River, because “the Mississippi River represents a significant source of [mercury] to the Coastal Bays and Gulf Waters of Louisiana because of the large drainage area and massive flow rate. … The total mercury load from the Mississippi River is estimated at 2,117,000 grams per year. Classification of [mercury] loading from the Mississippi River as a nonpoint source is necessary since it was beyond the scope of these TMDLs to differentiate point sources from nonpoint sources of mercury for a geographic area covering almost two-thirds of the continental United States.” The sources of mercury pollution on the Louisiana Gulf Coast, and the necessary reductions in mercury loadings from those sources, including the Mississippi River, are shown in the following table. Load Allocations for Coastal Basins Coastal Segment Segment Name Point Source Hg Load (g/yr) NPS Hg Load (g/yr) Total Hg Load (g/yr) Hg Load Reduction (g/yr) NPS Load Allocation (g/yr) 010901 Afchafalaya Bay and Delta 174 55,629 56,803 32,924 22,705 021102 Barataria Basin Coastal Bays 324 94,590 94,914 56,000 38,591 042209 Lake Pontchartrain Basin Coastal Bays 527 52,188 52,715 31,102 21,086 070601 Mississippi River Basin Coastal Bays 0 2,127,578 2,127,578 1,255,271 872,307 110701 Sabine River Basin Coastal Bays 57 20,077 20,134 11,879 8,198 120806 Terrebonne River Basin Coastal Bays 985 115,321 116,306 68,620 46,700 NOTE: NPS = nonpoint source. of pollutants in any body of water” (Section 304(a)(1); emphasis added). This broad command certainly extends to interstate water quality effects and the cumulative impacts of pollutants along large rivers such as the Mississippi. Coupled with the EPA’s authority to approve and disapprove state water quality standards and to encourage cooperative interstate efforts, this broad grant of water quality criteria-setting authority could allow
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities Given these contributions and necessary reductions, EPA Region 6 assigned the mercury waste load allocations (WLA; point sources), load allocations (LA; nonpoint sources), and margin of safety (MOS) as follows: TMDL Summary Coastal Segment Segment Name TMDL (g/yr) WLA (g/yr) LA (g/yr) MOS (g/yr) 010901 Afchafalaya Bay and Delta 22,879 174 22,705 0 021102 Barataria Basin Coastal Bays 38,915 324 38,591 0 042209 Lake Pontchartrain Basin Coastal Bays 21,613 527 21,086 0 070601 Mississippi River Basin Coastal Bays 872,307 0 872,307 0 110701 Sabine River Basin Coastal Bays 8,255 57 8,198 0 120806 Terrebonne River Basin Coastal Bays 47,685 985 46,700 0 Simultaneously, however, EPA Region 6 noted the load allocation for the Mississippi River basin accounts for the mercury load from upstream sources in the basin (including point and nonpoint sources). Because of the large geographic scope of the basin and the difficulty in identifying specific sources, EPA has not allocated specific waste loads to point sources in the Mississippi River basin upstream of the TMDL area. Thus, EPA Region 6 assumed that it had authority to impose a load allocation on the entire upstream Mississippi River basin. Moreover, it assumed that it had further authority to assign specific waste load allocations to upstream point sources to achieve the Gulf of Mexico TMDL, even though, because of the complexity, EPA Region 6 actually chose not to do so. the EPA to guide multistate attention to interstate water quality issues on large rivers. Moreover, the Clean Water Act expressly directs the EPA to consider scientific information regarding “the concentration and dispersal of pollutants” and effects such as “rates of eutrophication and rates of organic and inorganic sedimentation for varying types of receiving waters” (Section 304(a)(1)), again indicating that Congress wanted the EPA to look
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities broadly—including across state borders—when establishing its water quality criteria. SUMMARY The Clean Water Act of 1972 represented a significant change in U.S. water quality regulation in that the emphasis shifted from a focus on state-level water quality standards to a federal permitting scheme according to technology-based or more stringent water quality-based limits for individual dischargers. The Clean Water Act authorizes water quality programs, requires state water quality standards, requires permits for discharges of pollutants into navigable waters, and authorizes funding for publicly owned wastewater treatment works. The Clean Water Act has been effective in addressing point sources of water pollutants. In particular, its NPDES permit program’s technology-based effluent limitations ensure that easily identifiable industrial point sources and POTWs employ effective pollution control technology. Moreover, while states now issue most NPDES permits and engage in a significant portion of enforcement, the NPDES permit program has the additional advantages of being subject to federal and citizen enforcement (Sections 309 and 505). The Clean Water Act also addresses ambient water quality goals for the nation that its regulatory mechanisms are supposed to achieve. Specifically, the CWA requires states to develop water quality standards that consist of designated uses and water quality criteria that define acceptable pollutant levels for the waterbody given those designated uses. Notably, however, the Clean Water Act addresses nonpoint source pollution only in a limited, indirect manner. This is a crucial difference given the significance of nonpoint source water pollution throughout the nation and its special importance to Mississippi River and northern Gulf of Mexico water quality. The Clean Water Act’s nonpoint source provisions depend on the states’ political will to adopt and their economic capacity to enforce legally binding management measures to control runoff and other forms of nonpoint source pollution. State nonpoint source management programs, reinforced through the state water quality standard goals and specified TMDLs, could do much to address nonpoint source pollution. This would require states to have sufficient scientific and technological information to enact enforceable nonpoint source pollution control requirements, along with sufficient financial strength and political will to enforce those requirements. The Clean Water Act provides a regulatory role for interstate agencies in appropriate circumstances (Sections 103 and 106). The Mississippi River presents an opportunity for states to share regulatory authority with one or more interstate water quality regulatory organizations (although the
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities CWA does not provide for the financing for interstate bodies of this type formed after 1972). Even if the EPA and the states use these interstate water quality mechanisms to improve Mississippi River water quality, however, Mississippi River water quality will continue to suffer from several problems that the Clean Water Act cannot address. Some of these problems derive from statutory choices that Congress potentially could change. For example, many agricultural sources of water pollution are exempt from the Clean Water Act’s provisions that regulate point sources. Furthermore, some impairments of Mississippi River water and environmental quality stem from legacy problems that the Clean Water Act is not designed to address. For example, the Clean Water Act has nothing to say about endangered species, invasive species, habitat destruction, or other threats to biological diversity except to mandate the attainment and maintenance of water quality sufficient to support native fish, shellfish, and ecological communities. The statute can be used only indirectly to influence decisions made regarding navigation or flood control activities that can affect water quality, such as lock-and-dam construction or the dredging of navigation channels, in that it gives states the opportunity to condition federally issued permits and licenses. It does not mandate restoration of wetlands filled or otherwise altered long before the act took its current form. Moreover, some water quality issues—notably mercury contamination—derive from atmospheric deposition. Since the Clean Water Act does not authorize direct regulation of air pollution, it can only respond to these types of problems, but not really prevent them. As a result, the Clean Water Act cannot be used as the sole legal vehicle to achieve all water quality objectives along the Mississippi River and into the northern Gulf of Mexico. Nevertheless, the Clean Water Act provides a legal framework that, if comprehensively implemented and rigorously enforced, can effectively address many aspects of intrastate and interstate water pollution, although the emphasis to date has been predominantly on the former. Section 303 of the Clean Water Act requires states or the EPA to develop TMDLs for waters that do not meet water quality standards. TMDLs require regulators to look comprehensively at all sources of water pollution—point source, nonpoint source, and background. As a result, the TMDL provisions are becoming and are likely to remain key provisions of the Clean Water Act in finally achieving the goal of all of the nation’s waters being at least fishable and swimmable. For TMDLs and water quality standards to be employed effectively to manage water quality in interstate rivers such as the Mississippi, it is essential that the effects of interstate pollutant loadings be considered fully in developing the TMDL. The Clean Water Act assigns most interstate water quality coordination authority to the EPA. The EPA has mandatory duties to “encourage cooperative activities by the States for the prevention, reduction, and elimi-
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Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities nation of pollution” and to “encourage the enactment of improved and … uniform State laws relating to the prevention, reduction, and elimination of pollution” (Section 103). Moreover, the EPA has clear statutory authority to (1) take over from states the setting of water quality standards and TMDLs when state efforts do not comply with the Clean Water Act’s requirements; (2) convene, at a state’s request, interstate nonpoint source management conferences; (3) convene multistate conferences to develop comprehensive water quality management plans to protect National Estuaries; (4) hold hearings to address interstate pollution caused by federally licensed or permitted activities, including water-based activities permitted by the U.S. Army Corps of Engineers; and (5) veto state NPDES permits and take over the permitting process to ensure that interstate pollution from upstream or cross-stream point sources is adequately addressed. As a result, the EPA has the authority to establish TMDLs with interstate effects and, at least for point sources, regulatory requirements designed to achieve those TMDLs, including water quality criteria set at levels designed to address interstate water quality problems. The Clean Water Act also encourages the EPA to stimulate and support interstate cooperation to address larger-scale water quality problems. The act provides the EPA with multiple authorities that would allow it to assume a stronger leadership role in addressing Mississippi River and northern Gulf of Mexico water quality.