By Tomi Vest
On January 13th the Environmental Protection Agency released a draft Integrated Planning Approach Framework for the Clean Water Act (CWA). EPA had announced the development of the Framework in late October, 2011 in a memo entitled “Achieving Water Quality Through Integrated Municipal Stormwater and Wastewater Plans.” The Framework will allow municipalities to draft plans that prioritize the individual needs of communities based on public health and water quality benefits. Additionally, as the Memo points out, the Integrated Framework will allow municipalities to identify “cost-effective and protective solutions and implement[ ] the most important projects first.” (http://www.epa.gov/npdes/pubs/memointegratedmunicipalplans.pdf). This is important because the precarious financial condition of many local governments, combined with dwindling financial support from the Federal Government, is making it difficult for local governments to fully complying with their obligations under the CWA. A hearing before the U.S. House of Representatives Subcommittee on Water Resources and the Environment makes note of the largest municipal bankruptcy in US history and describes a multimillion dollar sewer project as contributing to the cause.
In drafting the Integrated Framework, EPA is attempting to get feedback from both local governments and environmental groups. To further this goal, EPA placed an announcement in the Federal Register notifying the public of a series of workshops with stakeholders that would provide feedback for EPA to use in revising the final version of the Framework. The workshops were held at the end of January and throughout February. Based on the input EPA received from these workshops and from the public, EPA is expected to issue a revised and final Framework in the next few months.
The draft Framework allows for local governments to develop integrated stormwater and wastewater plans. Currently, the Clean Water Act divides water pollution into two separate categories – point source pollution and nonpoint source pollution. Point source pollution is anything that comes from a “discrete conveyance” like a pipe or tunnel. Nonpoint source pollution is everything else. Major sources of nonpoint source pollution include agricultural runoff and stormwater runoff. Agricultural runoff occurs when farmers water their fields/crops and all of the chemicals, pesticides, and topsoil flow from the farm to a body of water. Stormwater runoff is the result of rain or snow in urban areas that have a large number of impervious services (such as paved roads, parking lots, and rooftops). The stormwater then carries the oil, chemicals, and other debris located on these impervious services into bodies of water.
The CWA has made incredible strides in improving the quality of America’s waters. However, most of those advances have been through the strict regulation of point sources. In fact, the discharge of any pollutant by any person is illegal unless that person has a National Pollution Discharge Elimination (NPDES) Permit. The permits place limits on the discharge while at the same time requiring certain levels of control technology. Nonpoint sources, on the other hand, do not have such strong requirements. As a result, federal regulation has largely failed to control nonpoint source pollution. The CWA simply does not provide enough enforcement mechanisms for the effective control of nonpoint sources. This is due in large part to the fact that nonpoint source pollution is diverse in character and potentially difficult to identify. Additionally, encouraging the Federal government to directly regulate nonpoint source pollution may be a bad idea. Nonpoint source pollution solutions typically rely on best management practices that modify how land is used. This type of regulation would arguably support the federal government participation in land use regulation. The Tea Party would definitely not approve.
So what can EPA do to encourage local governments to voluntarily address and reduce nonpoint source pollution? That is where the new Integrated Framework comes in. The Integrated Framework allows municipalities to create plans that take into account the municipality’s financial ability to meet current obligations under the CWA. One huge financial burden to local governments in the maintenance upgrades for sewer systems. These upgrades are costly and will likely have only a small overall impact on water quality.
The Framework indicates that that all or part of an integrated plan can be incorporated into a NPDES Permit. Why does this matter? As previously mentioned, the enforcement mechanisms available to EPA for nonpoint sources under the CWA are limited. By having municipalities voluntarily agree to add nonpoint source regulations to their NPDES, EPA will be able to enforce noncompliance with the plans, including promises to control nonpoint source pollution.
The problem of nonpoint source pollution cannot be understated. According to the EPA, “nonpoint source pollution is the leading remaining cause of water quality problems. The effects of nonpoint source pollutants on specific waters vary and may not always be fully assessed. However, we know that these pollutants have harmful effects on drinking water supplies, recreation, fisheries and wildlife.” (http://www.epa.gov/owow_keep/NPS/whatis.html)
At first blush, the Memo appears to describe a situation in which EPA will allow local governments that are strapped for cash to avoid having to meet all of their CWA obligations despite an assurance that EPA will not lower existing regulatory or permitting standards. A press release from the United States Conference of Mayors welcoming the Integrated Framework was an almost audible sigh of relief from Mayors who are concerned about the fiscal health of their cities. (http://usmayors.org/pressreleases/uploads/20111028-cleanwater.pdf) The Mayors are lauding a proposed regulatory program after complaining to their federal representatives that EPA is bankrupting their cities by enforcing CWA requirements. If this makes EPA’s claim to not lower existing regulatory standards seem a bit suspicious to you, you’re not alone.
Ultimately, the new Framework offers a voluntary program by which local governments will agree to reduce nonpoint source pollution in exchange for leniency (although EPA would never actually call it that) with point source requirements. EPA is offering local governments a carrot with the relaxation of regulation of nonpoint sources by allowing municipalities to institute these integrated plans. The plans, in turn, can turn into a stick if the municipalities fail to meet the duties outlined in the plans.
The idea behind the Integrated Framework is that the next level of technological improvements that cities will have to make to meet their obligations for point source pollution will cost billions of dollars while having only an incremental impact on overall water quality. There are many, much more cost effective, actions that a municipality can take to reduce nonpoint source pollution. These actions can have a significant impact on the quality of the water in these areas. For example, by implementing a “Green Infrastructure,” which uses vegetation and soil to manage rainwater, municipalities can reduce the problems caused by nonpoint source pollution (including sewer system overflows). Solutions such as this can have a huge impact at low cost.
The only question left is will local governments sign up for it?
“Achieving Water Quality Through Integrated Municipal Stormwater and Wastewater Plans” available at http://www.epa.gov/npdes/pubs/memointegratedmunicipalplans.pdf
United States Conference of Mayors Press Release, dated 10/28/12 available at http://usmayors.org/pressreleases/uploads/20111028-cleanwater.pdf
Draft Integrated Planning Approach Framework available at http://www.epa.gov/npdes/pubs/integrated_planning_framework%20_draft.pdf
EPA, Polluted Runoff available at http://www.epa.gov/owow_keep/NPS/whatis.html
EPA, Stormwater Program available at http://cfpub.epa.gov/npdes/home.cfm?program_id=6
EPA, Green Infrastructure available at http://water.epa.gov/infrastructure/greeninfrastructure/index.cfm#tabs-1
Waterworld.com Article “EPA Pledges to Develop “Integrated” Planning Process For Managing Wastewater, Stormwater Compliance Programs” available at http://www.waterworld.com/index/display/article-display/7190052915/articles/waterworld/volume-27/issue-12/editorial-features/epa-pledges-to-develop-integrated-planning-process-for-managing-wastewater-stormwater-compliance-programs.html
Clean Water Act 33 U.S.C. §§ 1251 – 1387 (1994).
Memorandum Re Hearing on “Integrated Planning and Permitting: An Opportunity for EPA to Provide Communities with Flexibility to Make Smart Investment in Water Quality” before the members of the U.S. House of Representatives Subcommittee on Water Resources & Environment dated 12/12/2011
Byrne, GREENING RUNOFF: THE UNSOLVED NONPOINT SOURCE POLLUTION PROBLEM, AND GREEN BUILDINGS AS A SOLUTION 11 N.Y.U. J. Legis. & Pub. Pol’y 145 (2008).
Robert Adler, The Clean Water Act 20 Years Later
Zaring, AGRICULTURE, NONPOINT SOURCE POLLUTION, AND REGULATORY CONTROL: THE CLEAN WATER ACT’S BLEAK PRESENT AND FUTURE 20 Harv. Envtl. L. Rev. 515 (2006)