October 2007, Vol. 19, No.10

CWA 35th Anniversary

The Clean Water Act: An Effective Means To Achieve a Limited End

G. Tracy Mehan

William Ruckelshaus, former administrator of the U.S. Environmental Protection Agency (EPA), once observed that even if all our waters were not fishable or swimmable, at least they are not flammable.

This truly witty remark does not capture the magnitude of the accomplishments under the Clean Water Act (CWA) during the last 35 years. In 1972, only 30% to 40% of assessed waters were estimated to have met water quality goals. Today, state monitoring data indicate that between 60% and 70% of assessed waters meet these goals, and twice as many Americans are served by advanced or secondary wastewater treatment.

Last August, lake whitefish, the number-one commercial fish in the Great Lakes and a key indicator of water quality, returned to the Detroit River to spawn for the first time since 1916.

Relative to 1972 levels, oil and phosphorus pollution levels are down 98% and 95%, respectively, in the Detroit River. Mercury contamination in fish tissue is down 70%, and PCB contamination is down 83%, as measured in herring gulls from a nearby island. The river shares honors with Lake Erie as a world-class walleye fishery.

Twenty-five years ago, we were losing nearly 162,000 ha (400,000 ac) of wetlands each year, but today the nation may have attained the goal of no net loss of wetlands. The U.S. Fish and Wildlife Service’s latest data through 2004 indicate that we might be close to achieving a net gain.

Not all of this success in reducing wetlands losses can be attributed to CWA Sec. 404, which regulates discharges of dredge and fill materials. Massive conservation programs funded through the U.S. Department of Agriculture, as well as voluntary restoration efforts by land trusts and public–private partnerships, have made significant contributions to this success story.

There is debate as to whether some of the gains in wetlands are the result of counting man-made ponds, such as water traps on golf courses and stormwater retention basins, that do not have adequate replacement or ecological values and functions. On balance, “we’re not destroying wetlands at the rate we were, but we’re continuing to lose wetlands of higher value and gaining wetlands or waters of lower value,” said Jeanne Christie, executive director of the Association of State Wetland Managers (Windham, Maine).

We seem to be stuck on a plateau in terms of water quality protection and restoration. Thirty-nine percent of assessed river miles, 45% of assessed lake acres, and 51% of assessed estuary square miles are impaired (not achieving water quality standards).

In May 2006, EPA released its first consistent evaluation of streams that feed rivers, lakes, and coastal areas. The Wadeable Streams Assessment (WSA) was based on sampling at almost 1400 sites representing similar ecological characteristics in various regions taken by more than 150 field biologists.
WSA revealed that only 28% of the streams were in good condition, 25% were in fair condition, and 42% were in poor condition.

EPA hopes to fill a void which caused it to state in its Draft Report on the Environment 2003 that “… at this time, there is not sufficient information to provide a national answer to this question [water quality conditions] with confidence and scientific credibility.”

Due to the lack of comprehensive, national-level data, potentially serious pollution problems remain undetected. Data gaps limit the states’ and EPA’s ability to target precious resources and key management and regulatory activities cost-effectively.

For decades, EPA maintained an understandable historic focus on imposing end-of-pipe, technology-based effluent guidelines on point sources through the National Pollutant Discharge Elimination System (NPDES) permitting program.

The U.S. Congress intended to avoid “paralysis by analysis” and declined to match control requirements to the quality of the receiving water or its lack thereof. Imposition of additional controls, where the technology-based controls were inadequate to meet water quality standards, was to come later. If there was monitoring to be done, it was generally for purposes of compliance — again, at the end of the pipe.

It is hard to appreciate how all-consuming was this emphasis on technology-based standards. By 1976, there were already 250 lawsuits on file challenging specific guidelines. It was only recently that EPA came out of court receivership on this aspect of the water program.

Many contemporary challenges are simply beyond the reach of CWA. Take the hypoxic (“dead”) zone in the Gulf of Mexico. Ninety percent of the nutrient loadings to the gulf come from nonpoint sources, primarily unregulated row-crop agriculture, draining 41% of the land mass of the continental United States.

It is a measure of the relatively minor contributions of point sources to this problem that Chicago may very well be the largest point source discharger of nutrients to the gulf.

As with the case of gulf hypoxia, many water problems are not a result of the failure of CWA. Rather, CWA never was designed to address either nonpoint source pollution, at least from agricultural sources, or air deposition, say, of mercury into Michigan’s 11,000 inland lakes, all of which are under fish consumption advisories. Even the later inclusion of stormwater runoff from impervious surfaces across the urban and suburban landscape into the NPDES program did not mesh well with the basic architecture of CWA. It is a valiant, challenging attempt to address land use issues after the fact.

CWA is a very effective means to address a very important, but limited, end: control of industrial and municipal point source discharges. Except for provisions regarding overall planning, water quality standards, Sec. 319 funding, and total maximum daily loads (TMDLs), the law can influence, only indirectly, the many and varied human activities across the landscape that have an impact on water quality throughout the watershed.

None of the major environmental laws has been reauthorized since the mid-1990s. So it is unlikely that we will see any major changes in CWA for the immediate future. What aspects, then, of the National Water Program can we bolster or improve in order to move it off the plateau and onto the next stage of water quality improvement?

Water quality standards. EPA and the states must put as much emphasis on sound, scientific numeric criteria to support water quality standards, especially for nutrients, as they did on technology-based effluent guidelines for many decades. Standards are essential for accurate allocations under any TMDL. Some standards are too lax. Some are unattainable. But they are, nevertheless, essential endpoints to guide effective action in the watershed, be it regulatory or voluntary, by all stakeholders — not just regulated point sources. The new, cutting-edge water quality criteria for Chesapeake Bay are an excellent example of what can be done.

TMDLs. TMDLs are controversial, technically daunting, and overwhelming in number. Still, they provide a powerful tool to inform, guide, and motivate all stakeholders in the watershed. Watershed groups, agriculturalists, local watershed groups, municipalities, and land trusts are just a few of the players that can be mobilized if they understand the sources of and the need for eliminating the pollution that impairs their local waters. TMDLs are an important conceptual framework for taking concrete steps to address water quality issues on a watershed basis. Through trial and error, with time and application, we can make them the cornerstone of the watershed approach.

Monitoring. It is important to improve and strengthen state ambient water quality monitoring programs and to develop and promote the use of multiple, complementary monitoring tools, including statistically based surveys, predictive monitoring, and remote sensing to support water quality decisions. These must be supported by better electronic data systems to manage and share monitoring information accessible to all stakeholders and the general public. Information is power, and monitoring is cost-effective in the long run.

Green infrastructure. Call it low-impact development, smart growth, or the watershed approach, it is time to measure and legitimize distributed, nonstructural techniques for achieving water quality cost-effectively while yielding multiple environmental and community benefits. These techniques must be incorporated into the very guts of the NPDES program — not just into enforcement settlements or consent decrees. Paying a farmer to plant trees or buffer strips along a stream, encouraging developers to preserve natural features and install rooftop gardens, and motivating homeowners to plant rain gardens will save money, improve the flow regime, enhance the aesthetics, mitigate urban heat islands, improve habitat, and sequester carbon. What’s not to like? Even if it takes longer to achieve a hard number in an NPDES permit, the numerous environmental and social benefits will make it worth the wait.

Innovation. EPA and state regulators should adopt a more experimental, iterative, and adaptive approach to regulation and encourage watershed-based permitting, green infrastructure, and water-quality trading. NPDES permits are only for 5 years, not infinity. And water utilities need to develop productive partnerships with agriculture, land trusts, and local governmental entities — including transportation and parks departments — to diversify the portfolio of watershed approaches.

Building on the foundation of the NPDES program, we need to emphasize nonpoint sources as much as point sources, water quality standards as much as technology-based effluent guidelines, the entire watershed as much as discrete discharges, and ambient water quality monitoring as much as monitoring at the end of the pipe.

Before we pass the 40th anniversary of CWA, we should embrace an integrated watershed approach and weave together a seamless partnership of public, private, and not-for-profit stakeholders, all of whom are necessary for the restoration and protection of the waters of the United States.

  

G. Tracy Mehan is a principal in the Arlington, Va., office of The Cadmus Group Inc. (Watertown, Mass.) and a member of the International Program Committee of the Water Environment Federation (Alexandria, Va.). He was assistant administrator for Water at the U.S. Environmental Protection Agency from 2001 to 2003. Contact him at gmehan@cadmusgroup.com.

G. Tracy Mehan is a principal in the Arlington, Va., office of The Cadmus Group Inc. (Watertown, Mass.) and a member of the International Program Committee of the Water Environment Federation (Alexandria, Va.). He was assistant administrator for Water at the U.S. Environmental Protection Agency from 2001 to 2003. Contact him at gmehan@cadmusgroup.com.

Water Quality Trading for Municipal Authorities

Brent Fewell and Brooks Smith

While we should celebrate the gains achieved since the Clean Water Act (CWA) was enacted in 1972, the journey is far from over. If we are to sustain and extend these gains, we must dramatically change our thinking and approach to managing water quality.

In June, the National Academy of Public Administration (NAPA; Washington, D.C.) published a comprehensive study evaluating the way in which the U.S. Environmental Protection Agency (EPA) currently delivers environmental services, with a focus on the Chesapeake Bay Program. Despite the many successes of this program, water quality in the bay remains significantly impaired. Commenting on the challenges of a highly urbanized watershed, NAPA noted the following:

When we fertilize our lawns, drive our cars, wash our dishes, or go about our other daily routines, we contribute to making our streams, rivers, bays, and oceans unswimmable and toxic to marine life. The same potential arises as farmers grow the food we eat, when businesses dispose of the byproducts of their work, and when builders create new communities. In short, the necessities of life and pollution of our environment are inextricably linked.

NAPA identified a disconnect between the layers of government and available programs and the actual implementers, such as local governments, developers, farmers, agribusiness, watershed groups, and conservation districts. NAPA stressed the importance for EPA to continue to strengthen its position as a partnering agency and rely more on market-based approaches, such as water quality trading, to provide incentives and means for sustainability.

Many of the diffuse sources that wreak havoc on water quality are found where Americans play and work every day, in our communities. Currently, more than 170 million Americans — approximately 60% of the population — live within urbanized areas subject to EPA’s stormwater regulations. Runoff from municipal storm sewers contributes to nutrients, sediments, pathogens, oil and grease, heavy metals, and suspended solids that constitute a larger portion of the water quality impairments across the country.

In particular, municipal separate storm sewer systems (MS4s) can be a significant source of excess nutrients that cause hypoxic, or “dead,” zones in large watersheds, such as Chesapeake Bay and the Gulf of Mexico. MS4s are point sources and, therefore, are required under CWA to reduce the discharge of pollutants in stormwater to the maximum extent practicable (MEP). MS4s consist of lakes, ponds, streams, wetlands, and sometimes hundreds of miles of storm sewers and drains that make up a community’s infrastructure to convey and manage runoff from myriad diffuse sources within the MS4’s jurisdiction. Some MS4s, such as the cities of Los Angeles, Milwaukee, Atlanta, Boston, and Washington, D.C., can encompass hundreds of square miles of already developed areas.

MEP has never been defined by EPA. However, it is generally construed as pollution prevention and source reduction. Consequently, under an MS4 permit, best management practices may be required, including the development of a stormwater management plan, public education and outreach, training programs, monitoring for illicit discharges, construction and post-construction stormwater management control, and good housekeeping. Because MEP is not defined, it becomes a moving target. As an MS4’s performance improves, so does the standard of compliance against which it is judged by EPA.

Consequently, many MS4s are reluctant to do more than they are currently doing. Good performance is penalized, and poor performance becomes the norm.

One way to encourage greater performance by MS4s is to define MEP in a way that those who want to improve their performance can do so without being penalized. Such clarification would also provide a platform for MS4s to engage in water quality trading, whereby they could actually generate marketable pollution credits. While many MS4s require structural control requirements for new development, there is little focus on reducing pollutants from already developed areas.

More and more states are adopting trading programs as a flexible and cost-effective means of achieving water quality improvements. Trading is an indispensable tool to address the economic and social impacts of EPA’s impaired waters and total maximum daily load program. As this program matures, more communities will be faced with significant costs to reduce loadings to achieve water quality standards. Trading can help alleviate these economic impacts. Trading also can be used to accelerate environmental gains by rewarding communities for pursuing innovative control solutions, such as retrofitting stormwater systems, restoring riparian streams and buffers, and adopting green infrastructure, such as infiltration trenches, detention ponds, rain gardens, and constructed wetlands to improve water quality. In turn, these good performers or “overachievers” should be able to market their credits to other regulated entities who need them, including other MS4s, wastewater treatment plants, industrial dischargers, and highway construction and maintenance. Under a bubble permit, a municipality may find opportunities to trade internally among the permits it holds. This approach would give a municipality the flexibility of determining where pollutant reductions can be achieved most cost-effectively.

In August, EPA released a new guidance document, Water Quality Trading Toolkit for Permit Writers. The guidance identifies various scenarios under which a trading can take place. It is a roadmap not only for permit writers but for municipalities interested in setting up a trading program. Importantly, the guidance affirms EPA’s position that MS4s are eligible to participate in trading programs as both buyers and sellers of credits. In April, EPA also entered into an agreement with several prominent national groups to promote the use of green infrastructure by cities and wastewater treatment plants as part of their MS4 programs.

Our lakes, streams, and rivers are still at risk from many small, diffuse, and intractable sources of pollutants — a problem that will require greater collaboration and innovative approaches to solve. Water quality trading can provide the focus to help solve this problem. Municipalities should assess their unique circumstances and, where appropriate, begin working with EPA and state regulators to map out a plan to take full advantage of trading opportunities.

Brent Fewell is counsel at the law firm Hunton & Williams LLP (Washington, D.C.). He formerly served as deputy assistant administrator for Water at the U.S. Environmental Protection Agency. Brooks Smith is a partner at Hunton & Williams and provides strategic counseling on water matters.

Brent Fewell is counsel at the law firm Hunton & Williams LLP (Washington, D.C.). He formerly served as deputy assistant administrator for Water at the U.S. Environmental Protection Agency. Brooks Smith is a partner at Hunton & Williams and provides strategic counseling on water matters.