By William C. Schillaci
Yes, Says EPA, with One Exception
EPA’s recently released strategy for achieving clean water contains alarming news—the quality of our nation’s waters is declining. According to the Agency, the “best efforts” taken to date have not prevented the rate of waters being added to the impairment list from exceeding the pace at which restored waters are removed from the list.
Nearly 40 years after the Clean Water Act (CWA) set the goal of making all U.S. waters fishable and swimmable, new stresses are putting about 50 percent of lakes and streams at peril. The multitude of new threats is so widespread that the Agency finds the need to place more emphasis on protecting healthy waters. That may spread existing resources even thinner and lower expectations that impaired waters can be improved to meet standards. The required effort appears extraordinarily large and complex notwithstanding the Agency’s apparent belief that visionary new applications of existing statutory tools and established programs—plus one piece of new legislation—are sufficient to achieve clean water goals.
According to EPA, sources of stress vary regionally, but mainly comprise agriculture; stormwater runoff; habitat, hydrology and landscape modification; invasive species; the effects of climate change; municipal wastewater; and deposition of air pollutants. These differ from the bane of industrial point source pollution, which in 1972 was viewed as the major threat to the nation’s water quality. While the regulatory tools to control pollution from large industrial facilities are well established, there are persistent questions about the capacity of the CWA to address the emergent threats.
For example, the absence of authority in the CWA to regulate agricultural runoff has long been viewed as a major impediment to improving water quality nationwide. EPA’s strategy, which is clearly written to emphasize a positive direction, does not dwell on that regulatory gap. Rather, EPA notes that it works with the Department of Agriculture (USDA) to make use of various funds authorized by the CWA to induce farmers and ranchers to undertake voluntary actions to stem the tide of polluted runoff.
In fact, the strategy contains only one explicit desire for new legislation—restoration of the scope of the CWA’s definition of regulated waters to protect a broader range of wetlands and headwater streams. Otherwise, EPA takes the position that a revitalized approach can be achieved through “bold, new, creative, more effective ways to implement the CWA and other programs, more strategic deployment of existing regulatory authorities and enforcement programs, as well as voluntary approaches and market-based incentives.”
The strategy depends on different levels of government working together. In addition to EPA, local, state, and tribal authorities carry their share of the load by using whatever regulatory, persuasive, and creative means and inducements to reverse the decline in water quality and protect waters that are now meeting standards. EPA accepts that it bears the responsibility to bring these groups together “to more smoothly coordinate and harmonize our efforts to optimize the results.” Regulations need to be smarter, partnerships need to be stronger, compliance needs to be better coordinated with enforcement, communication needs to be improved with a broader audience, and greater leverage is needed for programs.
EPA states its intention to achieve the elusive goals of the CWA and also answer doubts about its ability to do so with a five-part strategy.
- Systematically assess the nation’s waters. The need to obtain a “complete picture of the condition of all water body types across the nation” will be addressed through a five-part aquatic resource survey, with the first part to be completed over the next several years. EPA says it intends to work with its partners to build on existing monitoring and assessment efforts to better identify, classify, and track the status of waters. One objective will be to complement existing impaired waters listings with identification of healthy watersheds. According to EPA, the new approach to monitoring and assessment will give policy makers the information needed to make informed decisions about how best to manage water resources and help the public understand the effectiveness of federal and state investments in clean water.
- Focus on healthy waters. Healthy waters provide essential services, including drinking water; habitat for healthy aquatic ecosystems and fish; and protections against storms and floods. Maintaining the health of watersheds will result in considerable savings over time if the need for costly restoration can be avoided in watersheds that would otherwise become impaired by cumulative impacts of multiple stressors. EPA says it wants to explore, develop, and make available more effective tools to conduct ecological assessments to classify and list healthy watersheds. That will be the objective of a healthy watershed initiative under which a common set of comprehensive metrics will be developed to create a national list of healthy watersheds. Other actions include support of legislation to restore the CWA protections for waters and the ecological systems; use of the full suite of CWA tools to protect high-quality streams from destruction and degradation caused by mining activities; changes to the federal water quality standard regulations to clarify and strengthen antidegradation regulations to protect high-quality waters; and ensuring that states and EPA have permitting authority to apply antidegradation requirements effectively in national pollutant discharge elimination system (NPDES) permitting programs.
- Restore degraded waters. EPA wants to use the Chesapeake Bay as a demonstration project for strengthening total maximum daily load (TMDL) pollution reduction plans and improved monitoring of restoration progress. The Chesapeake Bay model will be the basis for improvements to the current stormwater program and a new national stormwater rulemaking. Other specific actions include developing and implementing reasonable assurance guidelines regarding non-point-source reductions identified in TMDLs; coordinating funding opportunities with USDA to accelerate nutrient and sediment reductions and tackle key agriculture challenges; and using offset trading and other market-based tools to improve cost-effective cleanup of impaired watersheds.
- Reduce pollution. The strategy seeks to prepare for substantial predicted increases in pollutant loadings associated with development, urbanization, and climate change. EPA says it will more fully utilize regulatory tools and enforcement to eliminate loopholes, increase the regulatory universe, and set performance standards through robust modifications to current regulations. For example, the Agency wants to use current authority to extend protections for Chesapeake Bay to the Great Lakes and the Gulf of Mexico. Key actions include:
- Strengthening NPDES, including proposing a national rule to streamline regulatory authority needed to designate an animal feeding operation as a concentrated animal feeding operation (CAFO).
- Developing new requirements for publicly owned treatment works (POTWs), including requiring additional reporting and public notice when overflows occur, increased responsibilities for properly operating and maintaining sewer systems, clarifying requirements for satellite collection systems, and addressing peak wet weather flows at the treatment plant
- Expanding municipal stormwater permitting coverage to currently unregulated areas and establishing performance standards for stormwater discharges from newly developed and re-developed sites.
- Auditing point source programs (CAFOs, stormwater, water-quality-based permits) that have significant nutrient reduction potential.
- Evaluating implications of an EPA study currently under way on the relationship between hydraulic fracturing and water resources for taking further action to protect water quality.
- Developing regulations to save trillions of aquatic organisms per year that would otherwise be withdrawn by cooling water intakes at more than 1,200 power plants and manufacturing facilities.
- Working with states to better manage excess nutrient enrichment in surface waters.
- Community planning. In EPA’s vision, water pollution problems posed by population growth and urbanization will be addressed through a renewed strategy to promote and support green infrastructure practices. Among the components of green infrastructure are low-impact designs that hydrologically mimic predevelopment conditions. Such designs involve technologies to infiltrate, evapotranspire, capture, and reuse stormwater to maintain or restore natural hydrologies. Specific actions include
- Considering policy options to make green infrastructure solutions an available tool for meeting CWA requirements (e.g., by ensuring that MS4 permits include cost-effective green infrastructure approaches),
- Implementing policies to direct national attention toward more sustainable water management practices that better integrate traditionally siloed areas such as water quantity, energy requirements, carbon emissions,
- Development, and land use at the watershed/aquifer level, and
- Encouraging states to use their Clean Water Act state revolving funds (CWASRF) for projects that are consistent with EPA’s sustainability policy.
EPA says it will continue to work with states to ensure that all CWASRF programs meet the mandated requirement to use at least 20 percent of FY 2010 appropriated funds for green projects addressing stormwater infrastructure, water efficiency, and energy efficiency.
These are the highlights of EPA’s clean water strategy. Government strategies of this type tend to be wildly ambitious, in part to assure the public that agencies have a plan to mitigate every problem.
Also, the strategy is noticeably short on timelines. As a result, it is difficult to determine which of the above actions will receive the most attention first.
However, the Agency’s spring 2010 regulatory agenda provides updates on specific regulatory actions, many of which align with the current strategy.
EPA’s clean water strategy is available here.