The Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. §§1251 -1387, is the federal statute regulating the discharge of water pollution. FWPCA was originally enacted in 1948, and later amended by the Water Quality Act of 1965, which provided for the adoption of water quality standards for interstate waters. While the Rivers and Harbors Act of 1899, 33 U.S.C. §401, et seq., required a permit for deposit of refuse matter in the navigable waters, use of this provision to regulate pollution discharges did not begin until about 1970.

With growing awareness of environmental degradation in general, and water pollution in particular, Congress revised FWPCA into the Clean Water Act ("CWA" or the "Act") in 1972. The goals of the Act included that "the discharge of pollution into the navigable waters be eliminated by 1985," "the discharge of toxic pollutants in toxic amounts be prohibited," and an "interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and... recreation in and on the water... by July 1, 1983." CWA §101(a), 33 U.S.C. §1251(a). Extensive amendments were added in 1977 and 1987. The Act is divided into six titles:

Title I Research and Related Programs

Title II Grants For Construction of Treatment Works

Title III Standards and Enforcement

Title IV Permits and Licenses

Title V General Provisions

Title VI State Water Pollution Control Revolving Funds

This discussion will concentrate on Titles III, IV and V.

The Act envisions primary enforcement and administration through the states, provided the state program is at least as stringent as the federal program. §402(b), 33 U.S.C. §1342(b). New York's preexisting regulatory scheme was substantially revised in 1973 as ECL Article 17, in order to conform to the Clean Water Act, and facilitate delegation of authority for the federal National Pollution Discharge Elimination System ("NPDES") program from EPA to DEC. See 33 U.S.C. §1342(b). While the state terminology (e.g., including "outlets" as well as "point sources") and scope (encompassing not only surface waters but also ground waters) are broader than under federal law, the programs are substantially parallel. New York water quality regulations set forth at 6 N.Y.C.R.R. Parts 649-758.

The primary mechanism to control water pollution is the requirement that direct dischargers obtain a National Pollution Discharge Elimination System permit. CWA §301(a), 33 U.S.C. §1311(a), generally prohibits all discharges of pollutants except in compliance with the Act, while ECL Article 17 contains similar prohibitions on the state level. CWA §402(a), 33 U.S.C. §1342(a), authorizes the issuance of NPDES permits to allow the discharge of pollutants, provided the various standards set by the Act are met. New York has been delegated authority to issue State Pollution Discharge Elimination System ("SPDES") permits, pursuant to CWA §402(b), 33 U.S.C. §1342(b), in lieu of the requirement for federal NPDES permits. See ECL Article 17, Title 8. Generally, a SPDES permit is required if three basic elements are present: (1) a point source (or outlet or disposal system); (2) a discharge of pollutants (or other specified wastes); and (3) receiving waters of the state.

CWA §502(12)(A), 33 U.S.C. §1362(12)(A) defines "discharge of pollutant" as "any addition of any pollutant to navigable waters from any point source." New York State law regulates "any addition of any pollutant to State waters, waters of the contiguous zone, or the ocean through an outlet or point source." 6 N.Y.C.R.R. §750.2(a)(9). Thus, the operative words are "point source" (or "outlet"), "pollutant," and either "navigable waters" or "state waters."

A "point source" is defined as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. The term does not include agricultural storm water discharges and return flows from irrigated agriculture." CWA §502(14), 33 U.S.C. §1362(14); see also ECL §17-0105(16).

This definition is broadly construed to further the intent of the Clean Water Act. Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991), mod. 505 U.S. 557, 112 S.Ct. 2638 (1992); United States v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir. 1979); Friends of Sakonnet v. Dutra, 738 F.Supp. 623, 629 (D.R.I. 1990). Typically, a point source encompasses a direct discharge through a pipe, and it must involve a "discernable, confined and discrete conveyance." O'Leary v. Moyer's Landfill, Inc., 523 F. Supp 642, 647 (E.D. Pa. 1981).

However, a point source may involve a natural conveyance such as a ditch, gully, or stream, and need not be constructed by the discharger. Sierra Club v. Abston Construction Co., 620 F.2d 41 (5th Cir. 1980); United States v. Earth Science, Inc., 599 F.2d 1979 (10th Cir. 1979). The term also includes an indirect discharge that is not adjacent to the receiving waters, and is conveyed through a point source, such as ditches or pipes. U.S. v. Velsicol Chemical Corp., 438 F. Supp. 945 (W.D. Tenn. 1976); O'Leary v. Moyer's Landfill, Inc., 523 F. Supp 642, 647 (E.D. Pa. 1981). The collection of spoil piles which, through natural precipitation and gravity, were discharged through ditches, gullies and similar conveyances, Sierra Club v. Abston Construction Co., 620 F.2d 41 (5th Cir. 1980), the spraying or spreading of fields, Concerned Area Residents For the Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 1994), cert den'd ___ U.S. ___, 115 S. Ct. 1793 (1995); U.S. v. Oxford Royal Mushroom Products, 487 F.Supp. 852 (E.D. Pa. 1980); Application of North Adirondack Farms, DEC Declaratory Ruling 17-07 (1992), and runoff from a construction site, Kinderhook Lake Corp., DEC Declaratory Ruling 17-02 (1980), have been found to be point sources.

Similarly, pollution directly transmitted through ground into surface waters may be a point source. Friends of Sakonnet v. Dutra, 738 F.Supp. 623, 629 (D.R.I. 1990); McClellen Ecological Seepage Situation v. Weinberger, 707 F. Supp. 1182 (E.D. Cal. 1988); Mutual Life Insurance Company of New York v. Mobil Corporation, 1998 U.S. Dist. LEXIS 4513, 1998 Westlaw 10602 (N.D.N.Y. 1998). The discharge may be delayed from the polluter's act. Werlein v. U.S., 746 F. Supp. 887 (D. Minn. 1990). Virtually any container or discrete source of pollutants that eventually enters waters of the United States is a point source, including a container of chemicals, SED, Inc. v. City of Dayton, 519 F.Supp. 979 (S.D. Ohio 1981), vehicles, Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983), a manure spreader, Concerned Area Residents For the Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 1994), cert den'd ___ U.S. ___, 115 S. Ct. 1793 (1995), and a lagoon. Concerned Area Residents For the Environment v. Southview Farm, 834 F. Supp. 1410 (W.D.N.Y. 1993); Application of North Adirondack Farms, DEC Declaratory Ruling 17-07 (1992); Fishel v. Westinghouse Electric Corp., 640 F.Supp. 442 (M.D. Pa. 1986).

However, runoff from sources such as farms, lawns and golf courses are generally non-point pollution. United States v. Plaza Health Laboratories, Inc., 3 F.3d 643 (2d Cir. 1993), cert den'd ___ U.S. ___, 114 S. Ct. 2764 (1994). A human being who tosses pollution into waters is not a point source. Id. Nonetheless, there is no general exemption for agricultural activities. NRDC v. Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977).

Besides "point sources," New York also regulates "outlets," a term in use in New York before the federal NPDES program was created. However, the terms are virtual synonyms. "Outlet" is defined as "the terminus of a sewer system, or the point of emergency of any water-borne sewage, industrial waste or other wastes or the effluent therefrom, into the waters of the state." ECL §17-0105(11).

"Pollutant" is generally defined as "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." CWA §502(6), 33 U.S.C. §1362(6); see also ECL §17-0105(17).

Typically, pollutants involve chemicals or other industrial waste contained in wastewater discharged from a business or industry, See Application of North Adirondack Farms, DEC Declaratory Ruling 17-07 (1992), or sewage from a sewage treatment plant. However, the term "pollutant," and the scope of the permitting programs, have been broadly construed. Natural Resources Defense Council v. Costle, 564 F.2d 573, 579 (D.C. Cir. 1977).

Demolition materials and other materials being recycled as fill, United States v. Bradshaw, 541 F.Supp. 880 (D.Md. 1981); United States v. Weisman, 489 F.Supp. 1331 (M.D. Fla. 1980); Hanson v. United States, 710 F.Supp. 1105 (E.D. Texas 1989), redeposited natural soils, Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983), manure used as fertilizer, Concerned Area Residents For the Environment v. Southview Farm, 834 F. Supp. 1410 (W.D.N.Y. 1993); Carr v. Alta Verde Industries, Inc., 931 F.2d 1055 (5th Cir. 1991); Higbee v. Starr, 598 F.Supp. 323 (E.D. Ark. 1984), aff'd 782 F.2d 1048 (8th Cir. 1985), and even human blood, United States v. Plaza Health Laboratories, Inc., 3 F.3d 643 (2d Cir. 1993), cert den'd ___ U.S. ___,114 S. Ct. 2764 (1994) , have been found to be pollutants. Likewise, similarly, useful products such as gasoline, United States v. Hamel, 551 F.2d 107 (6th Cir. 1977), and chlorine from treated water, Hudson River Fisherman's Association v. New York City, 940 F.2d 649 (2d Cir. 1991); Application of North Adirondack Farms, DEC Declaratory Ruling 17-07 (1992), are pollutants when they enter regulated waters.

"[E]lements such as nitrogen and phosphorous, entirely natural and harmless under most circumstances, are considered pollutants when added to water because they contribute to biological oxygen demand." National Wildlife Federation v. Gorsuch, 530 F.Supp. 1291, 1310-11 (D.D.C. 1982), rev. on other grounds, 693 F.2d 156 (D.C. Cir. 1982). Biological oxygen demand is the process by which organic wastes consume too much oxygen in the process of decomposition thereby depriving fish and other aquatic life of necessary oxygen. Likewise, thermal pollution is a pollutant. Power Authority of the State of New York v. Williams, 101 A.D.2d 659, 475 N.Y.S.2d 901 (3d Dep't 1984), app. den'd 63 N.Y.2d 605, 481 N.Y.S.2d 1023 (1984).

Mixtures of pesticides and other discharges are pollutants. Application of North Adirondack Farms, DEC Declaratory Ruling 17-07 (1992). However, pesticides intentionally deposited in a lake to kill lampreys, Richard Booth, DEC Declaratory Ruling 24-07 (1983), or water from a dam that is supersaturated with gases, National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982), are not.

CWA §502(7), 33 U.S.C. §1362(6) defines "navigable waters" as "the waters of the United States, including the territorial seas." EPA has successfully interpreted this term to have the broadest possible meaning allowed under the Commerce Clause of the U.S. Constitution, and as such it is not limited to waters which boats actually sail upon, and covers all surface waters which eventually may flow into such waters including wetlands. The courts have found that Congress "intended to assert jurisdiction over the nation's waters to the maximum extent permissible under the Constitution, unlimited by traditional concepts of navigability." Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984).

The definition of "waters of the state" regulated under ECL Article 17 not only includes all navigable waters within the state ("lakes, bays, sounds, ponds, impounding reservoirs... rivers, streams, creeks, estuaries, marshes, inlets, canals, the Atlantic ocean... and all other bodies of surface... water, natural or artificial, inland or coastal, fresh or salt, public or private"), but also encompasses all "bodies of... underground water" (including "springs, wells"). Thus, while CWA only regulates surface waters, a SPDES permit is required under New York State law for all discharges to both surface and ground waters. Exceptions from SPDES permit requirements include a private septic systems for three-family and smaller dwellings. 6 N.Y.C.R.R. §751.3(a).

Procedures for application for SPDES permits are set forth at Title 8 of ECL Article 17 and 6 N.Y.C.R.R. Parts 752 and 753. A complete application for a SPDES permit should be filed at least 180 days before the discharge is proposed to commence. DEC can require the submission of additional information, as well as a site inspection, before acting on an application. DEC then makes a tentative decision, which would include a draft permit if the decision is favorable. Public notice of the application and the tentative determination are then given in the Environmental Notice Bulletin and a local newspaper, and the public is given a comment period to submit written statements, or request a public hearing. DEC's Uniform Procedures under ECL Article 70 apply to a SPDES application, although DEC is also specifically required by ECL Article 17 to hold a public hearing if there is significant public interest. Similar procedures apply on the federal level to NPDES permits. See 40 C.F.R. Part 122.

All NPDES/SPDES permits must include effluent limitations which restrict the quantity, quality, rates and concentration of chemical, physical, biological, and other constituents of effluents which are discharged. ECL §17-0809; CWA §402(a), 33 U.S.C. §1342(a); see also 6 N.Y.C.R.R. Part 754. These must ensure compliance with applicable technology and water quality-based standards. The permits may also include a compliance schedule when a discharger is not in compliance with applicable standards. Further, the permits generally provide requirements for monitoring and reporting of discharges, including submission of regular discharge monitoring reports ("DMRs") which report the discharger's own laboratory testing of its effluent, and various other conditions. ECL §17-0815. Permits may allow exceptions for "upsets."

Generally, NPDES/SPDES permits are effective for five years, although they can be modified, suspended or revoked for sufficient cause. An application for renewal of a permit must be filed 180 days prior to expiration. Submission of a timely renewal application extends the existing permit until the application is decided. 5 U.S.C. §558(c); SAPA §401(2). Variances for effluent requirements are possible in very limited situations, where a discharger has "fundamentally different factors" presented than others in its industry, and require EPA approval. CWA §301(n), 33 U.S.C. §1311(n).

The discharge of dredged or fill material into navigable waters of the United States is prohibited without a permit issued by the U.S. Army Corps of Engineers, pursuant to CWA §404, 33 U.S.C. §1344. However, such permits must comply with EPA regulations, and generally also require water quality certification from EPA. The authority for giving water quality certifications has been delegated in New York to DEC. Categorical "nationwide permits" have been issued for about 40 different categories of activities, 40 C.F.R. §330.5, and DEC has issued categorical water quality certifications for many of these.

DEC has a similar regulatory program prescribed by ECL §15-0505, with regulations at 6 N.Y.C.R.R. Part 608. Generally, a joint application is filed for the two permits.

Although formerly exempt, certain storm water dischargers were subjected (after repeated extensions) to regulation effective October 1, 1992. EPA studies have found that storm water which comes in contact with certain types of storage facilities and open landfills becomes contaminated and eventually pollutes receiving waters. The regulations provide a list of types of dischargers requiring permits and cover discharges associated with industrial activity, and from municipalities with populations of 100,000 or more. 40 C.F.R.  §122.26. Dischargers covered by this provision were required to (a) submit an individual SPDES application, (b) qualify as part of a group application, or (c) be covered under a regulatory "general permit."

EPA regulations promulgated in 1995 are far more comprehensive than the 1992 regulations and include "point source discharges of storm water from commercial, retail, light industrial and institutional facilities, construction activities under five acres, and from municipal separate storm sewer systems serving populations of less than 100,000." 60 F.R. 40230. A permit is required for dischargers in this category if the permitting authority determines that the discharge is contributing to impairment of water quality or significantly contributing pollutants to receiving waters. Permitting requirements for all other discharges in this category was deferred until 2001. A supplemental rule was proposed in January, 1998, in which EPA proposes to create a nationwide designation which includes "storm water discharges from small municipal separate storm water sewer systems located in urbanized areas and construction activities that result in land disturbance equal to or greater than one acre." 63 FR 1536. A waiver based on water quality conditions may be available to sources included in the nationwide designation, including, construction activities affecting an area of between one and five acres. Barring any amendments to the CWA, the proposed rule will become final in March, 1999.

Under the Act, effluent standards are based either upon available technology, as prescribed by EPA, and/or state water quality standards. These standards are incorporated on an individual basis into NPDES/SPDES permits. CWA §401(a), 33 U.S.C. §1341(a).

The EPA has broad discretion in setting technology standards on an industry-by-industry basis. Under the Act, dischargers were required to implement "best practicable control technology currently available" ("BPT") by July 1, 1977, CWA §301(b)(1)(A), 33 U.S.C. §1311(b)(1)(A), except that more stringent BPT regulations established after 1981 did not have to be met until March 31, 1989. §301(b)(3), 33 U.S.C. §1311(b)(3). BPT has been interpreted as the "average of the best" existing treatment performance, considering "the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application." While cost is a factor to be considered, courts look at whether costs are wholly disproportionate to the benefits to be achieved.

The Act also required the achievement of "best available technology economically achievable" ("BAT") for "toxic pollutants" and "nonconventional pollutants" by March 31, 1989. CWA §301(b)(2), 33 U.S.C. §1311(b)(2). BAT is defined by EPA as the best existing technology performance in an industry category, "tak[ing] into account... the cost of achieving." It is designed to force new technology. By the same deadline, "best conventional pollutant control technology" ("BCT") was required for conventional pollutants, such as total suspended solids, BOD, pH, oil and grease. §301(b)(2)(E), 33 U.S.C. §1311(b)(2)(E). In setting BCT, EPA may consider the reasonableness of costs, but there is no requirement that it balance costs and the benefits of effluent reduction. It has been interpreted to be equal to BPT, or between BPT and BAT.

New sources are made subject to "new source performance standards" ("NSPS"), "which reflect the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives." CWA §306, 33 U.S.C. §1316. Generally, these standards are set by EPA at BAT levels. The ability of owners to comply with standards is not a consideration in NSPS permits and variances are not allowed because new source standards are intended to be "absolute prohibitions" as to insure national uniformity. E.I. Du Pont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 980 (1977).

In many cases, EPA has missed statutory deadlines to promulgate effluent limitations. However, lawsuits by environmental groups and statutory amendments have forced EPA to make progress.

If a discharger emits effluent into the same body of water from which it is drawn, the discharger may qualify for "net" effluent limitations. In such a case, the discharger receives a "credit" for pollutants contained in the intake water. 40 C.F.R. §122.45(g).

A water quality standard is established by designating the use of water (e.g. public drinking water, swimming, or fishing), and setting limits for various constituents which protect that use. Generally, these are set by the state, in order to reflect local ecological conditions, subject to EPA review. CWA §303, 33 U.S.C. §1313. New York State has classified the various surface waters of the state by regulations set forth at 6 N.Y.C.R.R. Parts 800-941, and prescribed various maximum contaminant levels and other parameters for each class of surface and ground water. 6 N.Y.C.R.R. Parts 700-705. Effluent standards set in NPDES/SPDES permits must ensure that these standards will be achieved for the receiving waters.

CWA §307(b), 33 U.S.C. §1317(b), requires EPA to set categorical standards for indirect discharges to publicly-owned treatment works ("POTWs") which are "not susceptible to treatment" by POTWs, or which would "interfere with the operation" of POTWs. EPA generally has set the level of pretreatment at BAT levels. Likewise, "pre-treatment standards for new sources" ("PSNS") are generally set at the same BAT levels as the NSPS standards for new direct dischargers.

EPA pretreatment standards are directly applicable to indirect dischargers. CWA §302(b), 33 U.S.C. §1312(b). However, a discharger may be able to obtain credit for the treatment capabilities of its POTW, including the ability of the POTW to remove toxics, provided the sewage sludge can be properly disposed of. As with direct dischargers, variances may be available if a discharger can show "fundamentally different factors," and a credit may be available for pollutants contained in intake water if the POTW discharges to that same body of water. Further, EPA regulations require that various reports be submitted to show compliance with the standards.

Besides the applicable categorical standards, EPA regulations set forth certain general prohibitions directly applicable to indirect dischargers, including pollutants which create a fire or explosion hazard, cause corrosive structural damage or have a pH below 5.0, solid or viscous pollutants which would cause obstructions, any pollutant released in a quantity that will cause "interference" with operations of the POTW, and heat that will interfere with biological processes at the POTW resulting in interference or causing the temperature to exceed 40C. 40 C.F.R. §403.5(b).

Individual POTWs with a design flow greater than 5 million gallons per day (mgd) that receive pollutants which might interfere with or pass through the POTW must develop a POTW program, subject to EPA approval. 40 C.F.R. §403.8(a). Such plans must provide a legal mechanism to ensure that the pretreatment standards are met, and that the POTW meets its own NPDES/SPDES permit. A substantial portion of the CWA is devoted to financing POTWs, initially through grants (Title II), and more recently, since the 1987 Amendments, through revolving state loan funds (Title VI).

Generally, a POTW program will involve a local law or ordinance enacted by the municipality which sets limitations on emissions, prescribes reporting and monitoring, and requires permits with effluent limitations for large dischargers. In Monroe County, this has been accomplished by the Monroe County Sewer Use Law, Local Law No. 3 of 1988, and rules and regulations set forth in accordance with that law. The Monroe County law requires permits for certain dischargers of industrial or other wastes.

Non-point sources are not subject to regulations under either the direct discharger or pretreatment programs. However, under CWA §208, 33 U.S.C. §1288, states are required to submit Areawide Waste Treatment Management Plans for EPA approval to control such sources. This program has had limited success.

New York also has provided for direct enforcement of water quality standards, which do not necessarily depend on whether a source is "point" or "nonpoint." State statute provides that it is "unlawful for any person, directly or indirectly, to throw, drain, run or otherwise discharge into such waters organic or inorganic matter that shall cause or contribute to a condition in contravention of" DEC water quality standards. ECL §17-0501. A leaking petroleum distribution system, Doralee Estates, Inc. v. Cities Service Oil Co., 569 F.2d 716 (2d Cir. 1977), and a ditch that discharged runoff from a sand and gravel pit that increased turbidity and sediment in a river, Colella v. DEC, 196 A.D.2d 162, 608 N.Y.S.2d 361 (3d Dep't 1994), were violations of this prohibition, but it has been deemed inapplicable to the leaching of chemicals into waters, because it requires "some active human conduct, as opposed to mere seepage over the course of time." State v. Schenectady Chemicals, Inc., 103 A.D.2d 33, 479 N.Y.S.2d 1010 (3d Dep't 1984); State v. General Electric Co., 103 A.D.2d 985, 479 N.Y.S.2d 1008 (3d Dep't 1984). Further, state law prohibits pollution injurious to fish and shellfish in the marine district (the Atlantic Ocean and tidal waters except the Hudson River north of the south end of Manhattan Island), ECL §17-0105(3), and in any waters of Long Island or tributary to the marine district. ECL §17-0503. These substantive provisions do not apply to actions of the federal government. State of New York v. United States, 620 F. Supp. 374 (E.D.N.Y. 1985).

Discharges of radiological, chemical or biological warfare agents or high-level radioactive waste, and discharges that the Army Corps of Engineers determines would impair anchorage and navigation, are prohibited. ECL §17-0807(1,2,3); 6 N.Y.C.R.R. §751.2(a,b,c). Also prohibited are discharges that violate plans under Clean Water Act §208, 33 U.S.C. §1288, to control "areawide" sources. 6 N.Y.C.R.R. §751.2(d).

CWA §311(b)(4), 33 U.S.C. §1331(b)(4), authorizes EPA to prescribe "those quantities of oil and any hazardous substances the discharge of which may be harmful to the public health or welfare." Accordingly, EPA has listed various hazardous substances and their "reportable quantities." 40 C.F.R. Part 116. For oil, this has been determined to be a discharge which violates applicable water quality standards, or causes a film or sheen upon or discoloration of the water or shore, or causes a sludge to be deposited. 40 C.F.R. §110.3.

Under the statute, the responsible person is required to notify the appropriate federal agency "as soon as he has knowledge of any discharge of oil or hazardous substances" in reportable quantities into the navigable waters. CWA §311(b)(5), 33 U.S.C. §1321(b)(5). This is accomplished by calling the National Response Center.

EPA is authorized to take action in accordance with the National Contingency Plan to "remove or arrange for disposal of such oil or substance," §311(c), 33 U.S.C. §1321(c), and to "mitigate the damage to public health or welfare." §311(b), 33 U.S.C. §1321(b). The owner or operator of the vessel or facility from which the discharge originated is liable for the actual cleanup costs incurred. §311(c), 33 U.S.C. §1321(c). While liability is strict, an owner or operator can raise as affirmative defenses the fact that the discharge was caused solely by acts of war or God, negligence on the part of the United States, or act or omission of a third party. Further, the owner or operator of an on-shore facility who did not act negligently or willfully cannot be liable for costs above $50 million.

Facilities which could reasonably be anticipated to spill oil in harmful quantities must prepare and implement Spill Prevention Control and Countermeasures ("SPCC") plans. 40 C.F.R. Part 112. Further, EPA can require facilities to comply with Best Management Practices ("BMP") to prevent spills of toxic or hazardous pollutants.

Pursuant to CWA §308, 33 U.S.C. §1318, EPA may require dischargers to establish and maintain records, use and maintain monitoring equipment, and sample effluents. Generally, such provisions are included as NPDES/SPDES permit conditions, such as the requirement to submit DMRs. EPA is also authorized to enter premises to examine and copy records, inspect monitoring equipment, and sample effluents. DEC has similar authority under ECL §17-0829. Nonetheless, an owner or operator may be able to refuse entry without a search warrant, pursuant to the Fourth Amendment to the U.S. Constitution (except where consent has already been granted or an emergency exists).

Liability for violation of the Clean Water Act is strict, so that intent is not necessary, and even accidental discharges in violation of permit requirements are illegal. U.S. v. Texas Pipeline Co., 611 F.2d 345, 347 (10th Cir. 1979); SPIRG v. Tenneco Polymers, Inc., 602 F. Supp 1394, 1400 (D.N.J. 1985). EPA has three avenues of enforcement activity -- administrative, civil, and criminal -- against violators of the Act.

Pursuant to CWA §309(a)(3), 33 U.S.C. §1319(a)(3), EPA can issue an administrative order to require compliance. Administrative penalties for violations can be up to $10,000 per violation up to a maximum of $25,000 (Class I penalties) when an informal administrative hearing is held, and up to $10,000 per day of violation up to a maximum of $125,000 (Class II penalties) if a formal hearing is held under the EPA. §309(g), 33 U.S.C. §1319(g). If EPA or a state is diligently prosecuting a violator in an administrative proceeding, or has already done so, judicial enforcement action is precluded. §309(g)(6), 33 U.S.C. §1319(g)(6).

EPA can bring a civil suit for violators of the Act seeking penalties of $25,000 per day per violation. §309(d), 33 U.S.C. §1319(d). EPA has a "Civil Penalty Policy" which acts as a guide in setting or determining the amounts of penalties, based upon various factors. Further, under §309(c), 33 U.S.C. §1319(c), criminal actions can be brought against responsible persons for willful or negligent violations of the Act, or any permit or order. Negligent violations are punishable by fines of between $2,500 and $25,000 per day and/or one year in prison, while knowing violations are punishable by fines of $5,000 to $50,000 and up to three years in jail.

ECL §71-1929 (civil) and §71-1933 (criminal) provide similar remedies penalties under state law, and DEC may also proceed administratively. See 6 N.Y.C.R.R. Part 621. Even though DEC has primary authority with respect to the NPDES/SPDES program, EPA can still use its enforcement powers in an "oversight" role to enforce state SPDES permits.

CWA §505(a), 33 U.S.C. §1365(a), expressly authorizes citizens to bring suit in federal district court against violators of either an effluent standard or limitation, or an administrative order issued by EPA or a state. The court is authorized to award civil penalties under §309(d) of the Act, 33 U.S.C. §1319(d), as well as costs of litigation (including attorney's fees), §505(d), 33 U.S.C. §1365(d), and order compliance with the Act. Environmental groups have effectively enforced the Act through use of this provision. See, e.g., Northwest Environmental Advocates v. City of Portland, 56 F.3d 979 (9^th Cir. 1995). Attorneys' fees may even be recovered if the polluter comes into compliance following commencement of suit. Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co., 933 F.2d 124 (2d Cir.1991).

Case law has held that only citizens with sufficient nexus to the pollution have "standing" to bring such cases. Sierra Club v. SCM Corp., 747 F.2d 99 (2d Cir. 1984). In order to proceed, the citizens must give 60 days' advance notice of intent to sue. §505(b), 33 U.S.C. §1365(b). If a judicial government enforcement action is commenced and being diligently prosecuted, a citizen cannot file suit. §505(b), 33 U.S.C. §1365(b). The similar bar to judicial action if a prior administrative enforcement action is diligently prosecuted under §309(g)(6), 33 U.S.C. §1319(g)(6) also applies to citizen's suits. Citizens can only sue if the polluter is "in violation," §501(a), 33 U.S.C. §1365(a), meaning that the violation must be continuing, or at least intermittent, and not wholly past. Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S.Ct. 376 (1987).

The Safe Drinking Water Act of 1974 ("SDWA"), 42 U.S.C. §§300f-300j-26 (Title XIII of the Public Health Service Act), gives EPA authority to ensure the safety of public drinking water supplies. Pursuant to SDWA §1412, 42 U.S.C. §300g-1, EPA has set maximum contaminant levels for specified substances. 40 C.F.R. Parts 141, 143. Similarly, pursuant to authority under the Public Health Law, the New York State Department of Health regulates public water systems, and also sets maximum contaminant levels at 10 N.Y.C.R.R. §5-1.52. Often, these standards are used as a guideline for even private wells. EPA has also required the filtration of surface water supplies. SDWA §1412(7)(C), 42 U.S.C. §300g-1(7)(C).

SDWA applies to "public water systems," defined to include systems providing water for human consumption with at least 15 connections, or serving at least 25 individuals. SDWA §1401(4), 42 U.S.C. §300f(4). New York State regulations apply to systems with five or more service connections, as well as those serving 25 individuals. 10 N.Y.C.R.R. §5-1.1(ae). While these rules apply to both public and private systems, a system below the thresholds, such as an individual private well that supplies an individual household, is exempt.

The Safe Drinking Water Act was amended in August, 1996. The changes include a new revolving loan fund, mandatory disclosure requirements for public water systems, relaxation of the mandatory schedule for regulating new contaminants, and increased opportunities for variances for communities of less than 10,000 people. The new Clean Air/Clean Water Bond Act of 1996 provides $355 million for New York State's required share of the revolving loan fund. ECL §56-0201.

New water supplies require permits from DEC, pursuant to ECL Article 15, Title 15. Furthermore, diversions from the Susquehanna River Basin (including a large portion of the "Southern Tier" of New York) must be permitted by the Susquehanna River Basin Commission, an organization formed by the Susquehanna River Basin Compact. ECL Article 21, Title 13.