In the Bad Old Days,
[T]he oyster planter takes his right to plant and propagate oysters . . . subject to the ancient right of the riparian owners to drain the harmful refuse of the land into the sea, which is the sewer provided therefor by nature.
Darling v. City of Newport News, 123 Va. 14 (1918).
That is, oystermen had no complaint if Newport News’ sewage was killing their the oysters.
As the population, and the stench, grew, our lawmakers began to respond.
- In 1946, the Generous Assembly adopted the initial (mostly toothless) version of the State Water Control Law in response to fish kills in the James (from the Piney River titanium mine) and Shenandoah (from the rayon plant at Front Royal).
- In 1948, Congress adopted the initial (also mostly toothless) version of the Federal Water Pollution Control Act (in bureaucratese, the “FWPCA”).
- In 1972, Congress greatly strengthened the FWPCA.
- In 1977, Congress further tightened the FWPCA, and renamed it the Clean Water Act (the “CWA”).
The Heart of the CWA is Section 1311(a), which prohibits the discharge of pollutants from point sources to the waters of the United States, except in compliance with a permit.
Danger! That is a paraphrase of a statute. If you want to know what the statute really means, go read it and the abundant caselaw and regulations on point.
For reasons related to both the Supremacy Clause and the federal pocketbook, the CWA mostly calls the tune these days.
The CWA has had dramatic effects. For example, if a fish in 1972 were foolish enough to try to swim in the summer from Hopewell to Richmond or from Quantico to DC, it would have died from suffocation: The sewage from upstream would have consumed the dissolved oxygen in the river. By the ‘80s, that fish had a much better chance, except after major rainfalls, as noted below.
Combined Sewer Overflows
As our cities developed, we installed sewers (aka “combined sewers”) to handle both sewage (aka “sanitary wastes”) and urban runoff in the same pipe. Those sewers, of course, ran straight to the river, the “sewer provided . . . by nature.”
Mostly under pressure from the FWPCA, cities began to treat their sewage. When they expanded, they installed separate sewers for sewage and stormwater runoff so as not to have to treat the spikes in flows after every rainfall.
But our older cities (read: Alexandria, Lynchburg, and Richmond) had large areas served by combined sewers. Piping those straight to the treatment plant was not an option; every major rainstorm would overwhelm the plant. Tearing up the streets to install separate sewer systems would have been prohibitively expensive. So they piped the dry weather flows to the treatment plant, leaving pipes straight to the river for dealing with the overflows after a rain.
Those remaining “combined sewer overflows” (“CSOs”) were point source discharges of pollutants to the waters of the United States. There is no way those discharges could meet the technology-based limits required under section 1314(b) of the CWA.
So EPA and the State Water Control Board imposed compliance schedules, mostly under consent orders. In the case of Alexandria, it appears that the city was to start dealing with its major CSO overflow point in 2026 and have it under control by 2035.
Which Brings Us to the Governor’s Dilemma
Our Generous Assembly is, as you surely know, the thrall of Republicans, some of whom represent Potomac jurisdictions downstream of Alexandria. This year they passed SB898, which would require, inter alia, that Alexandria control its CSOs by 2025.
Stay tuned . . .