Download Surface Water 2003

TERRALEX ENVIRONMENTAL LAW COMMITTEE
SURFACE WATER
QUESTIONNAIRE AND RESPONSES
LYON, FRANCE
SEPTEMBER, 2003
544055.1
CONTRIBUTORS
Ireland
Scotland
Brodies W.S.
Charles Smith
United States Federal Law
Parsons Behle & Latimer
Daniel M. Allred, Richard J.
Angell, Jose Luis Moscoso
Michigan, United States
Warner Norcross & Judd, LLP
Dennis Donohue
South Carolina, United States
McNair Law Firm, P.A
Ethan Ware
Utah, United States
Parsons Behle & Latimer
Daniel M. Allred, Richard J.
Angell, Nicole G. Darrell
Chairmen of the Environmental Committee
Daniel M. Allred
Parsons Behle & Latimer
201 S. Main Street, Suite 1800
Salt Lake City, UT 84111
Tel.: (801) 532-1234
[email protected]
Peter Engels
Huybrechts, Engels, Craen & Partners
73 Amerikalei
B-2018 Antwerp, Belgium
Tel.: 32-3-244-1560
[email protected]
Charles Smith
Brodies, W.S.
15 Atholl Crescent
Edinburgh EH3 8HA, Scotland, U.K.
Tel.: (44-131) -228-3777
[email protected]
544055.1
QUESTION NO. 1
Is surface water quality regulated in your jurisdiction?
RESPONSES
Ireland:
The quality of surface water in Ireland is regulated in specific instances
only. The quality of surface water used for the abstraction of water for
human consumption is regulated, along with the quality of bathing
water and salmonid waters. There is separate legislation governing
general water pollution control.
Scotland:
Yes, in a number of instances. The quality of drinking water is
regulated, as is the quality of water otherwise intended for human
consumption whether in foodstuffs or otherwise. Similarly, bathing
waters are regulated as are salmonid waters and waters supporting
shellfish.
Separately, there is legislation which deals more generally with
pollution of, inter alia, surface waters.
United States:
Yes, surface water quality and discharges to surface water are regulated
under federal law in the United States.
Michigan:
Yes.
South Carolina:
Yes.
Utah:
Yes, surface water quality and discharges to surface water are regulated
by state law in Utah, as well by federal law.
QUESTION NO. 2
How is surface water defined in your jurisdiction?
RESPONSES
Ireland:
There is no general definition of surface water in the legislation.
Scotland:
There is no specific definition of surface water in the relevant
legislation. Surface water is part of a wider definition of "controlled
waters" which also includes groundwater as well as standing and
flowing surface water.
United States:
Surface water is defined as all navigable water that is naturally open to
the atmosphere, such as lakes, rivers, seas and reservoirs. The term
navigable water is defined by the Clean Water Act to include (1)
navigable waters; (2) tributaries of navigable waters; (3) interstate
waters; and (4) intrastate lakes, rivers and streams (a) used by interstate
travelers for recreation or other purposes, or (b) which are sources of
fish or shellfish sold in interstate commerce or (c) which are utilized for
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industrial purposes by industries engaged in interstate commerce.
Michigan:
Surface water is defined broadly to include virtually all types of
waterbodies.
South Carolina:
Not.
Utah:
QUESTION NO. 3
The State of Utah regulates discharges to “waters of the state,” which
includes “all streams, lakes, ponds, marshes, watercourses, waterways,
wells, springs, irrigation systems, drainage systems, and all other bodies
or accumulations of water,” whether natural or artificial, which flow
through, border upon, or are in the state. Wetlands, as defined under the
Federal Clean Water Act, are also included in waters of the state under
state law.
What governmental authority is responsible for regulating surface
water quality?
RESPONSES
Ireland:
Local Authorities and the Environmental Protection Agency, a state
funded body.
Scotland:
The Scottish Environment Protection Agency (SEPA) plays a
significant role in the regulation of surface water quality. However,
local authorities and Scottish Water (the Scottish water supplier) also
have regulatory duties in respect, for example, of drinking water quality
and the monitoring of private water supplies. In respect of drinking
water quality, there is also the Drinking Quality Regulator for Scotland
who supervises and oversees compliance by Scottish Water and local
authorities with the drinking water quality duties to which they are
subject.
United States:
The United States Environmental Protection Agency (“EPA”) is
responsible for regulating and protecting water resources. The EPA
Office of Water (“OW”) is responsible for implementing the Clean
Water Act and Safe Drinking Water Act, among other federal statutes.
Additionally, the OW coordinates with EPA regional offices, other
federal agencies, state and local governments, and Indian tribes.
Michigan:
Federal law is the basis of water regulation with delegation of
regulatory programs to states under state laws that meet federal
delegation requirements.
South Carolina:
State Dept. of Health and Environmental Control.
Utah:
The Utah Division of Water Quality and the Water Quality Board,
which are part of the Utah Department of Environmental Quality, are
responsible for administering the state’s surface water program. A
separate program for the protection of drinking water supplies is
administered by the Division of Drinking Water and the Drinking Water
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Board. The Utah State Engineer also administers a stream alteration
permit program that regulates relocation and alteration of the beds and
banks of any natural stream.
QUESTION NO. 4
What are the main sources of authority for surface water quality
regulation?
RESPONSES
Ireland:
Statutes and Statutory Instruments enacted pursuant to European
Directives.
Scotland:
Statutes and statutory instruments, many of which have been enacted or
amended as a result of EU Directives.
United States:
Surface water is primarily regulated by the Federal Water Pollution
Control Act of 1972. As amended in 1977, this law became commonly
known as the Clean Water Act. The Act establishes the basic structure
for regulating discharges of pollutants into the waters of the United
States. It gives EPA the authority to implement pollution control
regulations and wastewater standards. Other sources of authority are the
Safe Drinking Water Act and the Marine Protection, Research, and
Sanctuaries Act.
Michigan:
Federal and state statutes.
South Carolina:
Statute, regulation, policy.
Utah:
Surface water in Utah is primarily regulated by the Utah Water Quality
Act. The Act establishes the basic structure for regulating discharges of
pollutants into the waters of the State of Utah. It also gives the Utah
Division of Water Quality the authority to implement pollution control
regulations to meet the requirements of the Clean Water Act. Another
source of authority is the Utah Safe Drinking Water Act.
QUESTION NO. 5
If surface water quality is regulated in your jurisdiction, how is it
regulated? For example, are there specific contaminants or
characteristics that surface water must meet? If so, how many
different contaminants and/or characteristics are regulated?
RESPONSES
Ireland:
There are specific standards which must be met in terms of the
characteristics of the water and the levels of minerals and contaminants
contained therein. In relation to drinking water, for example, there are
39 different categories where certain standards must be attained.
Scotland:
In respect of the various pieces of surface water quality legislation, there
is a variety of specific standards which must be met relating to the
presence and level of various contaminants. For example in relation to
water quality in terms of the Water Supply (Water Quality) (Scotland)
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Regulations 2001 there are microbiological parameters and chemical
parameters. Sampling frequencies are also specified.
United States:
The Clean Water Act establishes water quality standards for
contaminants in surface water. The Act makes it unlawful for any
person to discharge pollutants into navigable waters, unless a permit is
obtained. The definition of “pollutant” in the Act is quite broad and has
been interpreted to include virtually all waste material, whether or not
that material has value at the time it is discharged.
Michigan:
There are monitoring and discharge limitations on specific contaminants
incorporated into permits authorizing the discharge. Hundreds of
different contaminants are subject to regulation.
South Carolina:
Specific contaminant levels and water quality standards (about 350) and
by narrative standards.
Utah:
The Water Quality Act establishes water quality standards for
contaminants in surface water. The Act makes it unlawful for any
person to discharge contaminants from a point source into the waters of
the state without a permit. The definition of “contaminant” in the Act is
quite broad and includes “any physical, chemical, biological, or
radiological substance or matter in water.”
QUESTION NO. 6
Does your jurisdiction regulate discharges to surface water? If so,
what types of discharges are regulated?
RESPONSES
Ireland:
There is a legislative prohibition on the entry of polluting matter to
water in general. However, local authorities may grant a licence to
discharge trade effluent or sewage effluent in certain circumstances.
Scotland:
Yes. Discharges to surface water are regulated by means of the Control
of Pollution Act 1974 which specifies that noxious or polluting matter
may not be permitted to enter “controlled waters” except pursuant to a
discharge consent (which will contain conditions as to concentrations
etc.) granted by SEPA. Similarly the SEPA regulates the discharge of
trade or sewage effluent to controlled waters by means of a similar
consent procedure.
United States:
Yes, EPA regulates both discharges from point sources such as outfalls
and indirect discharges such as stormwater discharges from industrial
facilities and construction sites.
Michigan:
Discharges to surface water are regulated if they are “point source”
discharges, which are defined broadly to include discharges from pipes,
ditches, tunnels and runoff.
South Carolina:
Industrial, municipal, and stormwater
Utah:
Yes. The Utah Water Quality Act regulates both discharges from point
sources such as outfalls and indirect discharges such as stormwater
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discharges from industrial and construction sites.
QUESTION NO. 7
Are discharges to surface water regulated according to the quality
and/or intended use of the receiving water?
RESPONSES
Ireland:
Where a licence to discharge trade effluent or sewage effluent is
granted, it may be granted subject to such conditions as are deemed
appropriate by the local authority. Such conditions may relate to the
quality and/or intended use of the receiving water, which is one of the
matters likely to be considered in considering an application for such a
licence. A licence may not be granted where it would result in the
receiving waters failing to comply with any relevant standards
prescribed pursuant to the legislation.
Scotland:
Discharge consents will be granted subject to appropriate conditions.
These conditions will take account of the quality and/or the intended use
of the receiving waters.
United States:
Yes, receiving waters are regulated according to a water quality
standard that defines the water quality goals of a water body based on
the intended use of the water and by setting criteria necessary to protect
the uses. Such standards serve the purposes of establishing the water
quality goals for a specific water body and serving as a regulatory basis
for treatment requirements.
Michigan:
Yes. There are also technology-based standards that are imposed.
South Carolina:
Yes.
Utah:
Yes. The waters of Utah are divided into several classifications to
protect the beneficial uses of the specific waterbody against controllable
pollution. The classifications generally account for the following uses:
domestic, recreational and aesthetic, aquatic wildlife, and agriculture.
An overriding policy of Utah water quality regulations is the protection
of beneficial uses downstream.
QUESTION NO. 8
What is the procedure for obtaining a permit to discharge to
surface waters if a permit is required?
RESPONSES
Ireland:
The applicant must first place a newspaper advertisement giving
notice of the application to be made. Application must then be
made within two weeks to the appropriate local authority
accompanied by the following documents:
a) Plans identifying the premises, drainage system and any
works apparatus or plant from which the discharge will be
made, the water to which the discharge is to be made and the
point of discharge.
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b) Particulars of the nature, composition, anticipated
temperature, volume and rate of discharge, proposed method
of treatment of the effluent and the period during which the
discharge will be made.
c) In the case of a trade effluent, a general description of the
process or activity giving rise to the discharge.
d) Other particulars as the local authority may require.
e) The appropriate application fee.
The local authority may decide to grant the licence, subject to such
conditions as it deems appropriate, or refuse the application. There is an
appeal procedure available to any aggrieved applicant.
Scotland:
The applicant must make an application to SEPA for a discharge
consent and must provide such information as SEPA may reasonably
require which will include, inter alia, plans identifying the location of
the discharge and the nature and composition of the discharge.
SEPA must publish notice of the application in two successive weeks in
a newspaper or newspapers circulating in the area or areas in which the
discharge is situated and the area or areas appearing to SEPA to be in
the vicinity of any controlled waters which SEPA considers likely to be
affected by the discharge. SEPA must also publish notice of the
application in the Edinburgh Gazette.
SEPA must send copies of the application to each local authority in
whose area the discharge is situated and also to Scottish Water.
SEPA must consider any written representations relating to the
application which are made by any person within a period of 6 weeks
beginning with the date on which notice of the application was
published in the Edinburgh Gazette.
SEPA is entitled either to give the consent unconditionally or to give it
subject to conditions or in the alternative to refuse it, but it must not
withhold the consent unreasonably.
There is an appeal procedure available to aggrieved applicants.
United States:
Under the Clean Water Act, EPA is the issuing authority for all National
Pollutant Discharge Elimination System permits in a state until such
time as the state elects to take over the program’s administration and
obtains EPA approval of its program. The procedure for obtaining a
permit is generally as follows:
1. A permit application form must be submitted to the EPA regional
administrator (or the state, if it is the issuing authority) at least 180 days
in advance of the date on which a proposed discharge is to commence or
the expiration of the present permit.
2. The district engineer of the Corps of Engineers and other agencies
must be given an opportunity to review the application. Where EPA is
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the issuing authority, the state in which the discharge will occur must be
provided with an opportunity to review the application.
3. The issuing authority issues a draft permit and the discharger is
normally given an opportunity to review and comment on this draft.
The public is given notice of the permit application proceeding and the
issuing authority’s preliminary determinations.
Michigan:
Apply to the state government typically who issues a permit authorizing
the discharge.
South Carolina:
Application to the State.
Utah:
Under the Water Quality Act, the Water Quality Board is the issuing
authority for all Utah Pollutant Discharge Elimination System
(“UPDES”) permits. Utah’s permitting program closely tracks the
National Pollutant Discharge Elimination System (“NPDES”)
regulations and is intended to be compatible with the federal program.
The procedure for obtaining a permit is generally as follows:
1.
A permit application form must be submitted to the Executive
Secretary of the Water Quality Board at least 180 days in advance of the
date on which a proposed discharge is to commence or the expiration of
the present permit.
2.
Once an application is complete, the Executive Secretary
tentatively decides whether to prepare a draft permit or to deny the
application. The Executive Secretary then gives public notice that a
permit has either been tentatively denied or that a draft permit has been
prepared. The United States Environmental Protection Agency and the
Corps of Engineers receive notice of the Executive Secretary’s decision.
3.
When a significant degree of interest is shown, the Executive
Secretary is required to hold a public hearing on the application.
Additionally, during the public comment period, any interested person
may submit written comments. At the close of this period, the Executive
Secretary issues a final permit decision.
QUESTION NO. 9
How are pollutant limits determined for surface water discharge
permits?
RESPONSES
Ireland:
A local authority may not grant a licence in respect of any discharge
which would not comply with specific standards prescribed pursuant to
the legislation.
Scotland:
In considering whether or not to grant a discharge consent and if so,
what conditions to impose, SEPA must have regard to all relevant
surface water quality legislation. It will also have regard to the quality
of the receiving waters.
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United States:
Discharges are subject to technology-based discharge standards based
on industrial processes or on the type of wastewater generated. As
permits expire they must be reissued with limits reflecting the most
recent treatment technology standards. The Clean Water Act also
requires that minimum receiving water quality standards must be
achieved.
Michigan:
Technology-based standards and then any more stringent water qualitybased standards that are applicable.
South Carolina:
Utah:
QUESTION NO. 10
Discharges are subject to technology-based discharge standards as
determined by industrial processes or the type of wastewaters generated.
As permits expire they must be reissued with limits reflecting the most
recent treatment technology standards.
What types of treatment are required for surface water discharges?
RESPONSES
Ireland:
Proposals for suitable treatment must be submitted by each applicant for
a licence to discharge and would be assessed on a case by case basis.
Scotland:
The treatment required will depend upon the conditions appended to the
consent which in turn will depend on the quality of the receiving waters.
Thus, treatment requirements are assessed on a case-by-case basis.
United States:
Permitted discharges must be treated to remove chemical and biological
pollutants, suspended solids and other contaminants or characteristics
(e.g., high or low pH) that would be harmful or inconsistent with the
quality and designated uses of the receiving waters.
Michigan:
Technology-based standards and then any more stringent water qualitybased standards that are applicable.
South Carolina:
Biological or physical.
Utah:
Permitted discharges must be treated to remove chemical and biological
pollutants, suspended solids and other contaminants or characteristics
(e.g., high or low pH) that would be harmful or inconsistent with the
quality and designated uses of the receiving waters.
QUESTION NO. 11
How are pollutant limits in surface water discharges measured and
monitored?
RESPONSES
Ireland:
544055.1
A local authority may carry out such monitoring activities as are
required for the performance of its functions under the legislation. The
Environmental Protection Agency carries out supervisory functions in
10
relation to monitoring and is responsible for the preparation of an
environmental monitoring programme setting out the nature and extent
of the monitoring to be carried out. It is also responsible for the
establishment of an analytical control programme and accreditation
scheme to ensure the validity and comparability of environmental data.
The legislation does not, however, specify the exact procedures and
methods involved in measuring and monitoring discharges.
Scotland:
SEPA has powers of entry and inspection which entitle it to carry out
measuring and monitoring activities. Additionally, discharge consents
will require that the applicant measures and monitors the pollutant limits
and submits the relevant data to SEPA on a periodic basis.
United States:
All surface water discharge permits include monitoring requirements
that are designed to assure compliance with permit limitations.
Monitoring of pollutants must be conducted according to approved
testing procedures. The federal Environmental Protection Agency
(“EPA”) and its representatives have the authority to enter any private
or public property to sample, inspect, or investigate matters or
conditions relating to pollution or possible pollution. The EPA may
review and copy records that are maintained by permittees. The EPA
may also require owners or operators of disposal systems to maintain
discharge records, install monitoring equipment, and sample effluent
and sludge.
Michigan:
Through sampling and analytical methods prescribed by regulation.
South Carolina:
Laboratory sample analysis.
Utah:
Under the Water Quality Act, the Water Quality Board and its
representatives have the authority to enter any private or public property
to sample, inspect, or investigate matters or conditions relating to
pollution or possible pollution. The Water Quality Board may review
and copy records that are maintained by permittees. The Board may also
require owners or operators of disposal systems to maintain discharge
records, install monitoring equipment, and sample effluent and sludge.
QUESTION NO. 12
Do discharge
reporting?
permits
require
periodic
monitoring
and/or
RESPONSES
Ireland:
Conditions relating to the taking and analysis of samples, the keeping of
records and furnishing of information are contained in each particular
licence.
Scotland:
Yes. In addition discharge consents will contain record-keeping
requirements.
United States:
Yes, monitoring must be conducted with sufficient frequency—
including continuous monitoring, when appropriate—to yield data that
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are representative of the discharge activity.
The administrator
prescribes conditions for such permits to assure compliance and data
and information collection, reporting, and such other requirements as he
deems appropriate.
Michigan:
Yes.
South Carolina:
Yes. Monthly.
Utah:
Yes. All permits issued under the Utah Pollutant Discharge Elimination
System program must include monitoring requirements that are intended
to assure compliance with the permit limits. Monitoring must occur with
sufficient frequency to yield data that is representative of the monitored
activity, and continuous monitoring may be required.
QUESTION NO. 13
Are potential sources of surface water pollution regulated
differently depending on whether they are existing or new?
RESPONSES
Ireland:
No, while transitional provisions applied to existing discharges when
water pollution legislation was first introduced, all sources of water
pollution are now treated equally.
Scotland:
No. Although some discharge consents are quite old, the relevant
legislation (the Control of Pollution Act 1974) provides for a fouryearly review of consents, which has had the result that the same
standard of regulation applies to all consents under that Act.
United States:
Yes, existing dischargers are required to comply with those standards by
a specified date, typically no more than three years after the effective
date of the categorical standard. New discharges are subject to more
rigorous technology-based standards and are required to achieve
compliance within the shortest feasible time, not to exceed 90 days from
commencement of discharge.
Michigan:
Yes.
South Carolina:
Yes. The technology is higher for newer sources.
Utah:
Yes. The first permit issued to a new source or discharger contains a
schedule of compliance when necessary to allow a “reasonable
opportunity” to attain compliance with requirements issued or revised
after commencement of construction but less than three years before
commencement of the discharge. For existing discharges, a schedule of
compliance shall be available only when necessary to allow a
reasonable opportunity to attain compliance with requirements issued or
revised less than three years before recommencement of the discharge
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QUESTION NO. 14
Does the size of the potential surface water pollution source have
any affect on how it is regulated?
RESPONSES
Ireland:
No, all potential water pollution sources are treated equally.
Scotland:
The legislation does not distinguish between the size of the potential
sources. However, by virtue of that size it is quite likely that SEPA will
take greater care in regulating such discharges because of the potential
impact on the receiving waters.
United States:
Yes, larger dischargers are generally subject to more stringent permit
requirements due to the greater risks associated with large volume
discharges.
Michigan:
Yes.
South Carolina:
Yes. The smaller the stream the more stringent the limits.
Utah:
Yes. The Executive Secretary of the Water Quality Board may issue two
types of permits, general or individual. A general permit covers a
category of discharges within a geographic area; however, the Executive
Secretary may require a facility to obtain an individual permit when the
discharge is considered a significant pollutant contributor. In addition,
large sewer treatment facilities with a design flow greater than five
million gallons per day that receives pollutants from industrial users
must establish a pre-treatment program. Smaller facilities may be
required to design pre-treatment programs only after consideration of a
number of factors.
QUESTION NO. 15
Do surface water quality regulations affect building and
development that could potentially impact surface water quality?
RESPONSES
Ireland:
Building and development is not separately targeted as a potential water
pollution source, but would be subject to the same pollution and water
quality laws as any other industry.
Scotland:
Only in the same way as they affect any other activity, i.e. there is
nospecial provision applicable to building and development.
United States:
Yes, the Clean Water Act states that storm water discharges associated
with industrial activity to waters of the United States must be authorized
by a National Pollutant Discharge Elimination System permit. A storm
water permit is also required for large construction activities.
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Michigan:
Yes.
South Carolina:
Yes.
Utah:
Yes. The Executive Secretary of the Water Quality Board has issued a
general permit regulating discharges from construction activities that are
associated with industrial activity. Construction projects that are greater
than five acres are required to comply with the general permit, which
establishes that the “owner, developer, or project instigator and
controller” is the party ultimately responsible for compliance.
QUESTION NO. 16
Are spills or releases of contaminants that could potentially affect
surface water quality required to be reported?
RESPONSES
Ireland:
In the event of an accidental discharge, spillage or deposit of any
polluting matter which enters, or is likely to enter any water, there is an
obligation on the person responsible to notify the appropriate local
authority as soon as practicable thereafter.
Scotland:
Most discharge consents will require the reporting of any potentially
polluting incident to SEPA.
United States:
Yes, spills or releases that have the potential to affect surface water
must be immediately reported to federal and state authorities.
Michigan:
Yes.
South Carolina:
Yes.
Utah:
Yes. Spills or releases that have the potential to affect surface water
must be immediately reported to federal and state authorities. The
permittee must also report within 24 hours of awareness any
noncompliance that “may endanger health or the environment.” A
written report is required within five days. A permittee must also report
an anticipated bypass at least 90 days prior to the event or if
unanticipated within 24 hours of awareness.
QUESTION NO. 17
Does your jurisdiction require remediation of contaminated surface
water?
RESPONSES
Ireland:
A court may order the remediation of any contaminated water.
Scotland:
SEPA has power to require remediation of contaminated surface water
in terms of sections 46A to 46D of the Control of Pollution Act 1974.
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Separately, under Part IIA of the Environmental Protection Act 1990 a
local authority (and in some cases SEPA) may require the remediation
of contaminated land if that contaminated land is causing or is likely to
cause pollution of controlled waters. In some instances, that may
require a remediation of the contaminated surface water itself.
United States:
Yes, remediation can be required for contaminated surface water.
Remediation activities are usually required by the Comprehensive
Environmental Response, Compensation and Liability Act.
Michigan:
Remediation can be required under other environmental statutes, but not
generally under the water regulation statutes.
South Carolina:
Yes.
Utah:
Yes. Under the direction of the federal Environmental Protection
Agency, the State of Utah requires remediation of contaminated surface
water.
QUESTION NO. 18
If so, who is responsible for cleanup of contaminated surface water
and how is liability apportioned?
RESPONSES
Ireland:
A court can order the person responsible to mitigate or remedy any
effects of the pollution concerned in such manner as it may decide. In
the alternative, a court may order the person responsible to pay any
costs incurred in investigating, mitigating or remedying the pollution
Scotland:
In the case of the Control of Pollution Act 1974 sections 46A to 46D,
the person who causes or knowingly permits the pollution is responsible
for cleanup.
In the case of Part IIA of the Environmental Protection Act 1990, the
position is the same but in some cases (for example where the causers or
knowing permitters cannot be found) liability may transmit to the owner
or occupier.
United States:
Parties who generated, disposed of, or arranged for disposal of wastes
that have contaminated surface water are generally responsible for
cleanup.
Michigan:
The polluting party is responsible.
South Carolina:
Owner and operator of the site have equal liability.
Utah:
Facility owners and operators may be required to remediate any
discharges in violation of permit limits. Administrative and judicial
orders in civil suits can require remediation in the form of the removal
of illegally discharged pollutants.
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QUESTION NO. 19
Does your jurisdiction regulate the removal and use of surface
water?
RESPONSES
Ireland:
Any abstraction of water involving a quantity in excess of 25 cubic
meters in any 24 hour period is required to be registered with the
appropriate local authority. The local authority may request any
information as they deem necessary in relation to any such abstraction
of water.
Scotland:
At present, the abstraction of water is not regulated in Scotland by any
statutory provision, except if drought orders have been made (which is
rare). At common law, however, rights will be required for the
abstraction of water by one person from another person's land.
Statutory controls on abstraction in Scotland are, however, to be
introduced in the future by virtue of the Water Environment and Water
Services (Scotland) Act 2003.
United States:
The removal and use of surface water is generally a matter of state law
rather than federal law.
Michigan:
Different states do; no uniform federal regulation on withdrawals.
South Carolina:
No.
Utah:
Yes. The removal and use of surface water for purposes such as
irrigation are subject to appropriation rights governed by the statutes
and common law of the State of Utah.
QUESTION NO. 20
Are facilities using or impacting surface water subject to periodic
inspections or audits?
RESPONSES
Ireland:
Such facilities may be inspected by authorized persons at any
reasonable time for the purpose of ascertaining whether there has been a
breach of the legislation or for the purpose of performing any function
under the legislation.
Scotland:
Generally yes. See above for the powers of SEPA in relation to the
monitoring of discharge consents. SEPA, and other regulators, have
general powers of entry and inspection in respect of compliance with
other statutory pollutions impacting on surface water quality.
United States:
Yes. The Clean Water Act requires states to establish compliance
evaluation programs capable of identifying facilities that discharge
without a permit, fail to meet requirements, or are in violation of the
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terms and conditions of their permits.
Michigan:
Yes.
South Carolina:
Yes.
Utah:
Yes. Under the Water Quality Act, the permit holder must allow the
Executive Secretary or an authorized representative to inspect facilities,
equipment, practices or operations regulated by the permit. The
Executive Secretary may also sample or monitor any substances to
assure compliance with the Utah Pollutant Discharge Elimination
System permit and is allowed to access and copy any records kept under
the conditions of the permit.
QUESTION NO. 21
What are the potential enforcement consequences if a facility fails
to comply with surface water quality regulations in your
jurisdiction?
RESPONSES
Ireland:
Water pollution offences may result in civil or criminal liability. In the
case of a criminal indictment, penalties of up to 5 years imprisonment
and/or a fine of up to €31,743 may apply. In the case of offences
committed by a company, an officer of the company may also be
prosecuted where the offence was committed as a result of the consent,
connivance or neglect of that person.
Scotland:
The Scottish water pollution legislation imposes criminal liability for
failure to comply with the legislation. In the case of water pollution,
penalties of up to 5 years imprisonment and/or an unlimited fine may
apply. However, is more usual for these offences to be prosecuted in a
manner which means that the maximum term of imprisonment will be 3
months and the maximum fine levied £20,000. There are also
provisions whereby officers of a company may be prosecuted where the
offence was committed as a result of the consent, connivance or neglect
of that person.
United States:
Enforcement mechanisms include: a warning letter or notice of
violation, administrative orders and compliance schedules,
administrative fines, civil suits, criminal prosecution and termination of
service (revocation of permit). Civil fines can be as high as $25,000 per
violation per day. The federal Environmental Protection Agency may
also take enforcement action where it deems action by the state
inappropriate. Additionally, the Clean Water Act (“CWA”) allows
citizen suits for enforcement of CWA standards.
Michigan:
Penalties of up to $27,500 per day per violation and injunctive orders.
544055.1
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South Carolina:
$27,500 per day of violation.
Utah:
A range of penalties may be imposed upon facilities or individuals
failing to comply with the Water Quality Act or abide by the conditions
of their permits. For example, facilities that do not comply with surface
water quality regulations may have their permits revoked, modified or
suspended. Any person who violates the Water Quality Act is subject to
a civil penalty of up to $10,000 per day of violation. Furthermore,
violators may be criminally charged for discharging pollutants or
violating pretreatment standards in a knowing or grossly negligent
manner.
QUESTION NO. 22
Do surface water quality regulations vary between the national level
and the state, departmental or provincial levels?
RESPONSES
Ireland:
No, the laws and water quality standards are applied to the country as a
whole.
Scotland:
No.
United States:
Yes, in addition to the enforcement of national standards and
requirements, state programs may enforce more stringent requirements.
Michigan:
Yes.
South Carolina:
No.
Utah:
Yes, however, in the State of Utah, the Water Quality Board generally
may not enact a local rule that is more stringent than the corresponding
federal regulation addressing the same circumstances.
QUESTION NO. 23
Are there any other significant matters relating to surface water
quality regulation in your jurisdiction?
RESPONSES
Ireland:
544055.1
Under planning legislation, local authorities are required to prepare
development plans setting out an overall strategy for proper planning
and the sustainable development of its administrative area. One of the
objectives to be targeted by such plans is the protection and preservation
of the quality of the environment, including the protection of waters. In
addition, under the water pollution legislation a local authority may, or
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if directed by the appropriate minister shall, prepare a water quality
management plan for any waters situated within its functional area.
Scotland:
United States:
No, save that in due course, when the Water Environment and Water
Services (Scotland) Act 2003 is commenced, SEPA will be required to
regulate by having regard to catchment area management with the
overall objective of ensuring good water quality in the waters in these
catchment areas.
Enforcement and interpretation of the Clean Water Act (“CWA”)
continues to evolve in the United States. Regulation of discharges into
marshes and wetlands has been a recent focus of attention as courts have
examined the scope of CWA jurisdiction as it applies to discharges to
marshes and wetlands that are difficult to classify as “navigable waters.”
Michigan:
Yes – but too complicated to elaborate on in this context.
South Carolina:
Yes. Development in wetlands is severely restricted.
Utah:
QUESTION NO. 24
Enforcement and interpretation of the Clean Water Act (“CWA”)
continues to evolve in Utah and the United States. Regulation of
discharges into marshes and wetlands has been a recent focus of
attention as courts have examined the scope of CWA jurisdiction as it
applies to discharges to marshes and wetlands that are difficult to
classify as “navigable waters.”
Have the regulations in your jurisdiction adopted as guidance or
formally implemented World Bank, World Health Organization or
other international “soft law” standards governing surface water
quality?
RESPONSES
Ireland:
The main international influence on Irish law in this area has been the
introduction of various European Directives.
Scotland:
No.
United States:
The federal Environmental Protection Agency (“EPA”) promulgates
and enforces surface water quality standards independent from the
World Bank, World Health Organization and other similar groups.
However, these standards are generally similar EPA regulations, but
without as much detail.
Michigan:
No.
South Carolina:
No.
544055.1
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Utah:
544055.1
Utah surface water quality regulations track closely with federal
requirements promulgated by the federal Environmental Protection
Agency (“EPA”). EPA promulgates and enforces surface water quality
standards independent from the World Bank, World Health
Organization and other similar groups. However, these standards are
generally similar EPA regulations, but without as much detail.
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