Companies that produce and discharge pollutants are subject to U.S. Environmental Protection Agency (EPA) oversight under the Clean Water Act. The EPA routinely conducts inspections focused on federal laws like Oil Pollution Act and Clean Water Act compliance. Findings of noncompliance can lead to civil or criminal enforcement. With the federal government’s continued focus on environmental protection, companies in all industries must prioritize compliance in 2024. Those that don’t will be at risk for substantial penalties, and their failure to comply could lead to suspension or termination of their noncompliant operations.

The Clean Water Act is not new. As the EPA explains, the statute’s origins date back more than 75 years: “The basis of the [Clean Water Act] was enacted in 1948 and was called the Federal Water Pollution Control Act, but the Act was significantly reorganized and expanded in 1972.” Since then, the EPA has continuously enforced the Clean Water Act, adopting a complex set of regulations along the way. With environmental concerns continuing to play an increasingly central role in national (and international) discourse, the Clean Water Act remains as relevant as ever in 2024—and this is likely to be the case well into the future.

“The Clean Water Act is one of several statutes the EPA has been aggressively enforcing in recent years, and this isn’t likely to change any time soon. To avoid unnecessary scrutiny and penalties, companies that produce and discharge pollutants need to ensure that they are devoting adequate resources to Clean Water Act compliance in 2024.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden, P.C.

With this in mind, companies subject to the Clean Water Act must prioritize compliance in 2024. But, what does this mean, exactly? Clean Water Act compliance is complicated; no two companies’ compliance programs will be (or should be) exactly alike. Here are some key insights on Clean Water Act compliance for 2024 and beyond:

Key Areas of Clean Water Act Compliance

The Clean Water Act broadly regulates the discharge of pollutants into U.S. waters. This includes (i) navigable waters (i.e., rivers, lakes, and streams), (ii) the Gulf of Mexico, and (iii) the Atlantic and Pacific Oceans, as well as all “contiguous zones.” It applies to companies and municipalities that both directly and indirectly play a role in introducing dredged or fill material into U.S. waters and places particular emphasis on municipal, agricultural, commercial, and industrial activities that involve:

Generation and Pretreatment of Pollutants

Companies such as industrial facilities that generate pollutants have an obligation to pretreat these pollutants in many cases. This includes (but is not limited to) pollutants such as chemicals, metals, oil, and grease. If a pollutant has the potential to interfere with the operation of a publicly owned treatment works (POTW) facility like municipal wastewater treatment plants, then pretreatment is generally required to prevent this interference.

Wastewater Management

Wastewater is a significant concern for the EPA and multiple other federal, state, and tribal authorities. The Clean Water Act established the National Pollutant Discharge Elimination System (NPDES) program, which regulates the discharge of pollutants into U.S. waterways via wastewater. Companies and municipalities must often adopt extensive operational safeguards to ensure that their municipal sewer systems comply with the pertinent federal standards. Various permits, licenses, and certifications may be required as well.

Stormwater Runoff

The stormwater discharges on the runoff are also a significant environmental concern at the federal level. Industrial sites, construction sites, and other facilities that present risks of point sources for stormwater discharge must also adopt stormwater pollution prevention plans that are capable of withstanding EPA and the Stormwater Management Program scrutiny.

Dredging and Filling

Under Section 404 of the Clean Water Act, companies that discharge dredge or fill material into wetlands and other waters must do so in strict compliance with federal standards. As the EPA explains, “[b]oth the [U.S. Army Corps of Engineers] and EPA are responsible for on-site investigations and enforcement of unpermitted discharges under [the Clean Water Act’s] Section 404.” Unpermitted discharges can expose companies to substantial penalties.

Biosolids

Biosolids generated from sewage sludge are also regulated under the Clean Water Act’s NPDES program. The EPA regularly conducts inspections focused on biosolids compliance, and during these inspections, companies (and municipalities) must be prepared to affirmatively demonstrate compliance through sampling and other means.

Concentrated Animal Feeding Operations (CAFOs)

Concentrated Animal Feeding Operations (CAFOs) are regulated under the Clean Water Act and prohibited from discharging pollutants into U.S. waters without an NPDES permit. These facilities are subject to frequent EPA and permitting authority inspections as well, and they, too, must be prepared to affirmatively demonstrate compliance when necessary.

Spill Prevention and Remediation

The Clean Water Act prohibits the discharge of oil and other hazardous substances “in quantities that may be harmful to the public health or welfare or the environment.” Companies must take adequate steps to prevent spills, and regardless of these preventative measures, they must also be prepared to take remedial measures if necessary.

Operative Provisions of the Clean Water Act

The Clean Water Act has several operative provisions, and understanding which of these provisions apply to a company’s operations is essential for developing and implementing an effective compliance program. While understanding each of these sections requires an in-depth look at the statutory language and relevant EPA regulations, here is a brief introduction to when each section applies:

• Section 308 (Inspections, Monitoring, Entry) – Section 308 establishes the EPA’s authority to conduct compliance inspections under the Clean Water Act. Among other things, it provides that the EPA “shall have a right of entry to, upon, or through any premises in which an effluent source is located or in which any records required to be maintained [under the statute are located].”
• Section 309 (Federal Enforcement Authority) – Section 309 establishes the EPA’s authority to enforce compliance with the Clean Water Act. It authorizes the EPA to impose civil penalties and injunctions for all violations while authorizing criminal prosecution for negligent and knowing violations.
• Section 401 (State and Tribal Certification of Water Quality) – Section 401 gives state and tribal authorities the power to manage certain licensing and permitting functions under the Clean Water Act. When managing Clean Water Act compliance, companies must ensure that they engage with the appropriate authorities to secure the approvals or waivers they need.
• Section 402 (National Pollutant Discharge Elimination System) – Section 402 establishes the NPDES program, which applies to wastewater, stormwater, biosolids, and CAFOs. The NPDES imposes several requirements for companies that are subject to the Clean Water Act, including permitting requirements (among many others).
• Section 403 (Ocean Discharge Criteria) – Section 403 establishes the requirements for securing approval of “a discharge into the territorial sea, the waters of the contiguous zone, or the oceans.” It applies to all forms of “pollutants,” as defined in Section 502 of the statute, including oil spills and spills of other hazardous materials.
• Section 404 (Discharge of Dredge and Fill Material) – Section 404 specifically addresses the discharge of dredge and fill material into wetlands and other waterways. Here, too, permitting requirements apply; however, securing a permit is just one step of many that companies must take before engaging in dredging operations or depositing fill material into U.S. waters.

Developing, Implementing, and Maintaining an Effective Clean Water Act Compliance Program

Despite the Clean Water Act’s breadth and complexity, the EPA (and other federal, state, and tribal authorities) expect companies to maintain strict compliance. As noncompliance can lead to civil fines, injunctions, and even criminal prosecution, companies that are subject to the Clean Water Act’s requirements and prohibitions need to make compliance a priority. Inspectors often review the Spill Prevention Control and Countermeasures plan to ensure facilities follow environmental regulations.

Developing an effective Clean Water Act compliance program is a multi-step process. To ensure that they are prepared to effectively maintain compliance on an ongoing basis, companies must take steps including (but not limited to):

• Assessing their specific compliance obligations under the Clean Water Act and the EPA’s regulations;
• Reviewing their existing Clean Water Act compliance policies and procedures (if any);
• Developing custom-tailored compliance policies and procedures that address their specific obligations under the Clean Water Act;
• Engaging with federal, state, and tribal authorities as necessary to secure permits, licenses, certifications, and waivers under the NPDES program;
• Implementing internal controls to allow for proactive Clean Water Act compliance management;
• Appointing a chief compliance officer (or equivalent) and providing training to all relevant personnel; and,
• Monitoring for compliance internally, conducting periodic compliance audits, enforcing compliance on effluent limits internally as necessary, and monitoring for changes in the law and EPA regulations.

Again, these are just examples. As with any area of corporate compliance, a key consideration for executives and other business leaders is that compliance is not a one-time event. Companies must continually take proactive measures to maintain compliance with the Clean Water Act, and they must also adopt policies and procedures that ensure adequate documentation of their ongoing compliance efforts. In the event of an EPA inspection or other inquiry, being able to affirmatively demonstrate compliance can be essential for mitigating the costs and risks involved. With comprehensive, custom-tailored, and fully implemented Clean Water Act compliance programs, companies can protect themselves and their shareholders in 2024 and beyond.