The Clean Water Act and Off-Road Vehicles

As the battle over the motorization of public lands continues to escalate, it will be critical that activists continue to develop new and more effective means of addressing inappropriate roads and ORVs. The Clean Water Act (CWA) offers some useful and underused tools for activists. It includes four major provisions that may be helpful: state water quality plan requirements; Total Maximum Daily Load requirements; discharge permit requirements; and dredge and fill requirements.

A. State Water Quality Plans

The CWA requires that each state, under Environmental Protection Agency (EPA) oversight, develop state water quality plans and water quality standards. Stream segments are all to be designated according to their highest existing use (i.e., the use requiring the highest degree of water quality protection see 33 USC Sec. 1251(a)(2), Sec. 1313, Sec. 1314), and the water quality standards are intended to protect these designated uses.1 These requirements provide for several potential strategies:

1) Activists can litigate to force states to designate waters that are still undesignated.

2) Activists can sue to force redesignation of waters that are presently "underdesignated;" that is, waters for which the designation allows lower water quality than that required by the actual existing or potential uses.

3) The state, with EPA approval, is required to conduct a review of each state's plan once every three years (called a Triennial Review 33 USC Sec. 1313(c)(1)). Activists can challenge the EPA's failure to conduct adequate Triennial Reviews.

4) Activists can force the EPA to act promptly to address deficiencies in state water quality plans.

The approval of road and ORV-related projects and activities by Federal land management agencies is significant. If a proposed activity is likely to violate state water quality standards, and if the approving agency fails to address these concerns in its NEPA analysis, the agency may be vulnerable to procedural NEPA claims.

There may be fewer substantive handles. Federal agencies are required to obtain state certification that their actions will meet state water quality standards. Unfortunately, the 9th Circuit Court recently ruled that state certification for nonpoint standards is not required. See Oregon Natural Desert Association v. Green, 151 F.3d 945 (9th Cir. 1998). Fortunately, this case seems to have left the door open for similar lawsuits regarding point pollution sources, as well as Sec. 313(a) claims regarding nonpoint pollution sources, discussed below. Moreover, Sec. 313 of the CWA still requires that Federal agencies "shall be subject to, and comply with, all Federal, State, interstate, and local requirements respecting the control and abatement of water pollution." 33 USC Sec. 313(a). This is an important provision, and clearly applies wherever agencies are authorizing or creating trails, constructing facilities, and otherwise taking discrete actions.2

B. Total Maximum Daily Loads

The CWA requires each state to maintain and update a list of stream segments that do not meet state water quality standards (based on the designated use of the segment, as discussed above). These are referred to as Water Quality Limited Segments or WQLS, and are listed on the Sec. 303(d) list. 33 USC Sec. 1313(d). Each segment can be WQL on the basis of any number of specific water quality concerns (turbidity and water temperature are two for which ORV use can have clear implications 33 USC Sec. 1313(d)). States are then required to establish a Total Maximum Daily Load (TMDL) for each WQLS (for each of the parameters for which the stream segment is deficient 33 USC Sec. 1313). States must update the WQLS list (and the associated TMDLs) every two years3 33 USC Sec. 1315(b). Moreover, it may be possible to sue the EPA to force the agency to take over state water quality plans when state TMDL enforcement is inadequate. There may also be handles when Federal agencies approve actions that would violate existing TMDLs. This issue, pertaining to Sec. 313(a) of the CWA, is noted above.4

These obligations present several strategic opportunities. First, activists can legally challenge the EPA's failure to meet any of these obligations. Second, because the state is required to consider public input when updating its 303(d) list, generating public support for adding stream segments to the list, altering the parameters for which segments are listed, or establishing TMDLs for segments, can affect the outcome of that process. Third, activists can conduct water quality sampling themselves, further bolstering an argument that specific stream segments warrant listing on the WQLS list for specific water quality deficiencies. In fact, in some cases (e.g., the Black Hills Water Rangers program) the EPA funds efforts for such citizen monitoring. As a practical matter, states prioritize the establishment of TMDLs, and activist input can affect how this prioritization occurs. Finally, it is worth noting that a Federal agency's approval of actions that will violate state water quality standards (especially if they can be related to drinking water, fishing, or similar issues) may also provide powerful organizing and media handles.

C. Discharge Permits

The CWA requires the issuance of a discharge permit (often referred to as a National Pollutant Discharge Elimination System or NPDES permit) for any discharge of pollutants into a body of water. 33 USC Sec. 1311(a). The CWA also provides that "[a]ny applicant for a Federal license or permit to conduct any activity which may result in any discharge into the navigable waters" obtain state certification that the activity will not violate water quality standards. 33 USC Sec. 1341. Unfortunately, these provisions only apply to point pollution sources, and the courts have roundly resisted efforts to expand the definition of point sources to include pollution caused by roads, the operation of ORVs, and similar land uses.

Because a permit is required for any discharge of any pollutant (33 USC Sec. 1362(12), these provisions can still be useful to activists. For one thing, in many cases the construction of ORV facilities may require the issuance of a discharge permit. The discharge permit provisions may apply to parking lots, warming huts, fuel tanks, and similar structures. It is also possible to challenge the EPA's failure to enforce a NPDES permit. These provisions even apply to inadvertent point discharges (such as storage tank leaks).

Although roads themselves probably do not constitute point sources, opportunities exist for point source claims relating to roads and trails. Any human-made object (such as a culvert), and potentially any gully or rut from which ORV-produced pollution or sediment is conveyed to a body of surface water (so long as the gully constitutes a "discrete conveyance") might be subject to point source regulation.

D. Section 404

Section 404 of the CWA applies to all dredge and fill activities in any navigable waters of the U.S. The Army Corps of Engineers must issue a permit before any material can be removed or added to such waters (including designated wetlands). The construction of roads or ORV trails through or adjacent to such waters, and ORV use that results in soil erosion into such waters, may be vulnerable to these sorts of challenges.5

To the extent that trail construction impacts the flows and other hydrological processes of a wetland, even when the construction occurs adjacent to a wetland (as opposed to within it), these CWA provisions may be applicable. The trail construction itself also may constitute a dredge and fill of the water body.

Moreover, Best Management Practices (BMPs) are required for various nonpoint activities. You may be able to sue to force an agency to develop BMPs where they do not exist, to force revision of BMPs when they are inadequate, and to require enforcement of BMPs where it does not occur.

Conclusion

The Clean Water Act has not yet been extensively applied to roads and ORVs; leaving much territory unexplored. When considering the CWA, it is well worth thinking about how its provisions might fruitfully be integrated with those of other legal mandates, such as the Endangered Species Act, the National Forest Management Act, and Executive Orders 11644 and 11989. Legal challenges of agency actions (or inactions) that violate multiple legal obligations tend to be much more powerful.

This Legal Notes is intended to provide some guidelines about when the provisions of the Clean Water Act may be applicable to roads or ORVs the CWA and its case law are complex. Unless you have particular expertise in Clean Water Act litigation, we recommend that you consult with an attorney if any of the above-mentioned triggers seem to apply to your situation.

Jacob Smith is Wildlands CPR's Motorized Wreck-Recreation Program coordinator, based in Boulder, CO.

End Notes

1. Where current uses of a stream segment have been degraded, the designation is supposed to reflect the highest potential use of those waters.

2. It may even be possible to argue that violations of Federal water quality standards, resulting from the failure to meet mandatory duties (as opposed to discretionary duties), still fall under the rubric of Sec. 313(a).

3. In fact, many states have never established TMDLs; several lawsuits on this issue are currently in progress. For such states (where legal action has not yet been initiated), this may be an important precursor to CWA efforts to curtail inappropriate ORV use.

4. The CWA also includes "anti-degradation" requirements, 33 USC Sec. 1313(d)(4)(B), that are triggered by the inclusion of a stream segment on the Sec. 303(d) list. While States may lower water quality standards (e.g. to accommodate important economic or social development), standards must be adequate to protect existing uses. Id.

5. The redistribution of soils within a wetland due to ORV activity may not trigger these provisions, however.