Clean Water Act is not a Universal Tool

Under the Clean Water Act, Congress explicitly directed the Agencies to protect “navigable waters.” Under the Clean Water Act, “the discharge of any pollutant by any person shall be unlawful.” 33 U. S. C. § 1311(a). “The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12).

The Clean Water Act (CWA) of 1972 made it a crime to discharge pollutants from any point source into the "navigable waters of the United States." However, the U.S. EPA has continually tried to expanded what constitutes a "pollutant" or "navigable water" over the years. Especially in this century, the U.S. EPA attempted to manage new problems by illegally expanding the reach of old laws. This is wrong.

In 2015 the U.S. EPA attempted in defiance of the law’s own limits to expand protection and regulation under the 1972 Clean Water Act to include ephemeral streams, regardless of their size of frequency of flow, wetlands and open waters not in riparian areas and the 100 year floodplains; and to expand the definition of pollution to non-point sources of contamination including fill dirt and soil erosion. That version of the Waters of the United States was implemented under executive authority of President Obama and unleashed a torrent of Federal litigation.

Thirty-one states, many local governments, and private industry filed suite asserting that the rule unconstitutionally expanded the Clean Water Act’s reach and misapplied several Supreme Court decisions and long standing practice. The cases were consolidated before the Sixth Circuit in Cincinnati, which granted a nationwide wide stay in November 2015.

With that stay in place the Trump administration withdrew the rule. On January 23, 2020, the U.S. EPA and the Department of the Army (Army) released their Navigable Waters Protection Rule to define “waters of the United States” (WOTUS). Their rule lists four clear and common sense categories of waters that are considered “waters of the United States:”

1. Territorial seas and traditional navigable waters (TNWs)
2. Tributaries and intermittent rivers and streams that contribute surface flow more often than just after a single precipitation event.
3. Lakes, ponds, and impoundments of jurisdictional waters are jurisdictional where they contribute surface water flow either directly or through channelized non-jurisdictional surface waters, through artificial features, or through natural features.
4. Wetlands that physically touch other jurisdictional waters are “adjacent wetlands.”

This restored what could be regulated under the law to point source pollution discharge into rivers, lakes, streams and adjacent wetlands. Last month Science.org published an article by S. Mazeika Patricio Sullivan et al “Distorting science, putting water at risk (1)” damning the new rule as “inconsistent with science and (will) compromise the integrity of U.S. waters.” They are wrong in thinking expansion of the reach of the Clean Water Act is the way to manage the sustainability, availability and quality of the water ecology. Yes, wetland and ephemeral stream need legal protection, but they need protection from destruction not from point source discharge of pollutants.

I repeat, the Clean Water Act of 1972 made it a crime to discharge pollutants from any point source into the navigable waters of the United States. The regulation was intended to stop the free discharge of sewage and industrial waste into our rivers an it does that.

The authors of the Science article believe that hanging the law by expanding the definition of navigable waters to include wetlands, seasonal streams and any water that might at any time during the year impact or reach the navigable waters of the United States though any ecological means and ignoring the Clean Water Act’s requirement of a point source pollutant is necessary to protect the ecological benefits provided by these non-floodplain wetlands and ephemeral streams. In their zealousness the Science article authors would create a regulatory scheme that  is not only illegal but could be capriciously applied,  and as we’ve seen signed into law and signed out of law.

There needs to be a reasonable, obvious and consistent standard for navigable waters of the United States to protect them from industrial and waste water discharge. Over expansion of the definition of Waters of the United States would result in inconsistent determinations and a Kafkaesque regulatory process. That is unacceptable in the United States of America.

The proper way to protect the wetlands and seasonal streams that we now understand are so essential to a balanced ecology and healthy rivers and streams are regulations for the application of fill material, land use, non-point source pollution and other local issues. These are not issues address under the Clean Water Act. These are properly addressed on the state and local level. The Clean Water Act is the wrong tool. To speed the process for the national acceptance of these kinds of laws, Congress needs to act to create the basic framework for laws to protect the sustainability of our water resources for our future.

You can read the Science article for free  at https://science.sciencemag.org/content/369/6505/766.abstract

1. S. Mažeika Patricio Sullivan, Mark C. Rains, Amanda D. Rodewald,William W. Buzbee, Amy D. Rosemond; Distorting science, putting water at risk, Science  14 Aug 2020:, Vol. 369, Issue 6505, pp. 766-768 DOI: 10.1126/science.abb6899.

Toxic bacteria Cut Off Water in Toledo

On Saturday, August 2, 2014 routine water testing at the Collins Park Water Treatment Plant in Toledo, Ohio had two samples test positive for microcystin at concentrations higher than the standard of 1 microgram per liter for potable water. A “Do Not Drink” order was issued for the city and the residents were without drinkable tap water. On day three the drinking water from Toledo’s Collins Park Water Treatment Plant was declared safe to drink, and life returned to normal in Toledo, Ohio, but is the new normal safe drinking water most of the time.

Microcystine or cyanobacteria is a toxin produced by microcystis, a type of blue-green algae that spreads in the summer algae bloom. These algae blooms are called dead zones and according to a 2013 Canadian and U.S. International Joint Commission report algae blooms had almost disappeared by the end of the 20th century, but there has been a recurrence with some of the worst algae blooms seen in the lake occurring in the last six to eight years. In 2011, the largest mass on record formed in the lake's western basin, eventually reaching more than 100 miles from Toledo to Cleveland, Ohio. That 2013 report stated that urgent steps are needed to curb runaway algae before the toxicity associated with these newer algae blooms impacts water supplies and affects human health, animal health. Last year this was thought to be an extreme scenario.

Dead zones form in summers when higher temperatures reduce the oxygen holding capacity of the water, the air is still and especially in years of heavy rains that carry excess nutrient pollution from cities and farms. The excess nutrient pollution combined with mild weather encourages the explosive growth of algae fed by excessive nutrient pollution. While the algae produces oxygen during photosynthesis, when there is excessive growth of algae the light is chocked out and the algae die and fall from the warmer top layers to the colder depths. The algae are decomposed by bacteria, which consumes the already depleted oxygen in the lower cooler level, leaving dead fish in their wake. Only certain species of blue-green algae form the toxin, for reasons that aren't fully understood. Toxic bacteria were not a problem until the 21st century, though algae blooms have been a problem on Lake Erie for over half a century.

The dead zones in the 1970’s were caused by the release of phosphorus in (what we would consider) partially treated sewage being released into the lake by waste water treatment plants along its shores. Stronger regulations on waste water treatment plants under the Clean Water Act seemed to alleviate that problem to a large extent. However, in the 1980’s the ecology of the Great Lakes began to change, invasive zebra and quagga mussels have disrupted the aquatic food chain and replaced native species. These invaders consume the beneficial types of algae, while rejecting harmful blue-green algae.

The algae blooms are now fed by a wider source of phosphorus. According to the 2013 report different sources of phosphorus runoff have emerged: farms, where manure and other fertilizers are washed into tributary rivers during storms and snowmelt, suburban lawns, septic systems, city streets and parking lots. Though combined municipal sewage systems are still a big contributor to nutrient pollution particularly the Detroit treatment plant, which discharges into the Detroit River a Lake Erie tributary. The nutrient pollution in the Maumee River, which drains agricultural areas of northwestern Ohio and flows into Lake Erie at Toledo, is believed to be agricultural in origin.

In the winter of 2012 The Ohio state Environmental Protection Agency issued two extremely critical reports about the condition of Toledo’s Collins Park Water Treatment plant, which spells out concerns about the system having an "unacceptable risk of system failure." According to a report in the Toledo News Now the Ohio EPA report identified several areas of regulatory non-compliance and significant deficiencies of Toledo's Collins Park water treatment plant. The most serious is what the Ohio EPA calls a "lack of reliability due to age and condition of essential equipment, such as pumps, check valves, impellers and electrical equipment."

Despite constant reminders of the vulnerability of our drinking water supply to contamination of the source water, failure of the treatment and distribution system failures, we have barely thought twice about our water and have taken for granted the capital investment made by previous generations. The water bill that most pay barely covers the cost of delivering the water and some repairs and there seems to be significant resistance to increasing water bills to pay the true cost of water and the systems needed to deliver that water. No infrastructure lasts forever and we have failed to properly maintain and plan for the orderly replacement of the water distribution systems in most places. The water distribution systems in most of our big cities and many of our older suburbs have reached the end of their useful life and water mains are failing at an ever increasing rate. As documented both by this survey and the AWWA, report: “Buried No Longer: Confronting America ’s Water Infrastructure Challenge” the need to replace or rebuild the pipe networks that deliver water comes on top of other water investment needs, such as the need to replace water treatment plants, upgrade treatment technology to respond to emerging contaminants in our raw water supplies, replace storage tanks and on-going monitoring and compliance costs.

Life returning to “normal” is not good enough, the algae bloom is still floating on the lake, but for the moment the Toledo intake is clear. The United States has had one of the finest and safest drinking water supply systems in the world. To keep 42/7 on demand safe water, we need to invest in the system for our future and protect our ecosystem.

Clean Water and Sanitation Should Not Be Taken for Granted

According to the Bill and Melinda Gates Foundation: “2.5 billion people—practice open defecation or lack adequate sanitation facilities, and the consequences can be devastating for human health as well as the environment. “ In India alone 600 million people practice open defecation which is a major source of the so called “water-borne” diseases, and human suffering and premature death. According to UNICEF, 2.2 million people die each year from diarrhea. Human waste is carried by precipitation to ditches onto streams and into rivers where it enters the water supply. Flies and vermin carry bacteria and disease from feces to food stores and humans.

In addition to those without any sanitation, there are reported to be 2.1 billion people who use toilets connected to septic tanks that are not maintained, back up or use other systems that discharge raw sewage into open drains or surface waters without adequate treatment which degrades the rivers and streams. Drinking water tainted with sewage is the source of “water-related” diseases that are carried from one host to another through water. These diseases included salmonella, schistosomiasis, cholera, crytosporidiosis, campylobacter, giardia, meningitis, shigellois, dysentery, hookworm, roundworm, tapeworms, dengue fever, leptospirosis, hepatitis A, typhoid, scabies and botulism. Overall, 40% of the population of earth lack adequate sanitation facilities and reliable access to clean water. 

from CDC

In the United States access to adequate sanitation facilities and clean water is taken for granted. However, almost 25% of households depend on an individual septic system (also referred to as an onsite system) or small community cluster systems to treat their wastewater. Just having flush toilets to carry the waste from the house does not mean it is adequately treated. Maintenance of these systems is often left to the individual household. Many of these systems are aging beyond their natural lifetimes and many system owners simply do not know how to properly manage their septic systems and have not bothered to learn. Improperly managed septic systems can result in system back-ups and overflows, surfacing sewage in your yard, polluted groundwater and surface water -a risk to public health and the environment. Sixty percent of the households in the United States that have septic systems also have private drinking water wells.

Though responsibility and management of septic systems and private drinking water wells belong to the individual owner, oversight and regulation of these systems falls to the states and local health departments. Virginia like many states has struggled to try to get homeowners to properly maintain their septic systems, both conventional and alternative and to consider routine testing of their drinking water from private wells. Homeowners fail to see or simply ignore indications that their septic systems have failed, do not pump their tanks at appropriate intervals and do not comply with inspection and maintenance regulations or manufacturer recommendations for alternative systems. Homeowners think because they are not required to test their wells, it does not have to be done.

The United States has one of the safest and most advanced water supply and sewage treatment systems in the world. However, we struggle to find the political will to properly maintain our public water infrastructure in our cities and fail to convey to owners of septic systems and private water wells how to properly operate and maintain their systems and the importance of doing so. While the water still flows and toilets flush we would rather spend money on “life style” rather than maintaining essential services like water and sewage.

Under the Clean Water Act the United States has made tremendous advances in the past 35 years to clean up our rivers and streams by controlling pollution from industry and sewage treatment plants. I am old enough to remember taking river water samples before the regulations, so I know how far we've come; however we seem to have stalled out. We've failed to solve the problem of eradicating sanitation failures by reaching the individual household and private system owners how their systems work and the importance of ensuring that they do. Also, our public water and sanitation infrastructure is aging. The distribution systems leak, the treatment plants have often not kept up with growth in volume of sewage that needs to be treated. Finally, the 25% of households that operate their own systems are increasing in absolute number, the systems built in the 1970’s and 1980’s are reaching the end of their natural lives and this has created growing source of contamination to our waters. In order to continue to make progress in cleaning up our rivers and streams we must learn how to control pollution from these diffuse, or non-point, sources as well as maintain our water infrastructure.

Since the advent of the Clean Water Act mandating improved treatment of sewage, outbreaks of disease caused by drinking water are no longer common in the United States, but despite advances in water management and sanitation, waterborne disease outbreaks continue to occur in the U.S. and can lead to serious acute, chronic, or sometimes fatal health consequences. The Center for Disease Control and Prevention (CDC) collects data from all the states on waterborne diseases. From 1971 to 2002, there were 764 documented waterborne outbreaks associated with drinking water, resulting in 575,457 cases of illness and 79 deaths. The symptoms of water borne disease often include diarrhea, nausea, vomiting and sometimes fever. It is no uncommon to mistake a case of water related disease for “food poisoning” or a “24-hour stomach virus.” Contaminated water can often look, smell and taste fine. Not all water borne diseases are recognized as such or reported to the CDC.

The National Institute of Health (NIH) believes the true impact of disease is much higher. Research done at the NIH indicate that 10,700 infections and 5, 400 illnesses occur each year in populations served by community groundwater systems; 2,200 infections and 1,100 illnesses occur each year from private wells; and 26,000 infections and 13,000 illnesses occur each year in municipal surface water systems. In recent years, the proportion of outbreaks in the federally regulated public water systems has declined, although these still contribute the majority of outbreak-associated illnesses. Inadequately maintained or constructed private wells and plumbing systems continue to cause illness in growing numbers. In addition, the aging water infrastructure and drinking water distribution system are suspected to be a growing source of water borne disease outbreaks, and are the cause of the familiar "boil water notices" which seem to become more common in our cities. We cannot continue to ignore water and sanitation system repair, replacement, maintenance and improvement and expect to have on demand clean water.

Farmers Appeal TMDL Decision – Right to Determine Land Use Belongs to the States

It is an old story now that the Chesapeake Bay and its tidal waters have been impaired by the release of excess nitrogen, phosphorus and sediment. These pollutants are released from waste water treatment plants, agricultural operations, urban and suburban runoff, wastewater facilities, septic systems, air pollution and other sources that enter the tributaries and Chesapeake Bay from the 16 million people living within its vast 64,000 square mile watershed.

There are six Chesapeake Bay states, Virginia, Maryland, West Virginia, Delaware, Pennsylvania, New York-and Washington DC. For decades these states have been attempting to clean up the Chesapeake Bay, and in fact, have made tremendous progress. Nonetheless, a “clean” Chesapeake Bay has alluded them; the cleanup plans hindered by growth in population and the region’s economies and difficulty in controlling the diverse sources of contamination.

In December 2010 the U.S. Environmental Protection Agency, EPA, mandated a contamination limit called the TMDL (total maximum daily load for nutrient contamination and sediment) to restore the Chesapeake Bay. The TMDL sets an overall limit for the entire Chesapeake Bay watershed of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus and 6.45 billion pounds of sediment per year which is a 25% reduction in nitrogen, 24% reduction in phosphorus and 20 % reduction in sediment from the 2011 levels. The pollution limits were then partitioned to the various states and river basins based on the Chesapeake Bay computer modeling tools and monitoring data. At this time the TMDL addresses only pollution from excess nitrogen, phosphorus and sediment.

Population growth and less than consistent remedial actions on the non-point source contamination has challenged efforts to restore the Chesapeake Bay. Non-point source pollution is pollution that does not come out of a pipe, but are carried to rivers and streams by runoff from rain and snowmelt. The way to reduce impact of this non-point source pollution on the environment is to implement what has been called “best management practices” and stormwater management. BMPs minimize the use of fertilizers, pesticides, etc. and that slow stormwater flow to prevent erosion and achieve a desired level of performance and quality while protecting the environment.

Pollution form urban and suburban stormwater runoff and septic systems is the only category of pollution in the region that has been growing in the 21st Century. In order to reduce the stormwater runoff carrying nitrogen, phosphorus, sediment and other pollutants from existing suburban residential areas, stormwater best management practices will also have to be implemented in the suburban communities. Counties, towns and cities within the Chesapeake Bay watershed are going to have to implement non-point source nutrient management throughout the watershed not only to stop growth in pollution, but reduce the amount of pollution. Homeowner Associations and individual homeowners will need to individually and as a group reduce the nutrients and sediment run off from their properties. EPA did not allow the states to “grandfather” the nutrient levels from existing homes. Suburban and semi-rural BMPs have the potential to significantly reduce nutrient and sediment pollution in the Chesapeake Bay, but state regulators and various health departments have struggled to reach, educate and motivate the public to implement, let alone maintain mitigation strategies. States have struggled with something as simple as trying to increase compliance with septic regulations by the public.

Nutrient management and soil and water conservation districts play a pivotal role in preventing such runoff in the agricultural community. In fact, conservation districts have been in the business of fighting erosion (which prevents nutrient and sediment pollution) since the mid-1930s, but conservation districts have met with varying degrees of success from state to state. Agricultural operations are businesses that can see the direct result of maintaining their top soil and that have learned over the years to deal with various regulations, still there are challenges. When dealing with the individual homeowner and the disperse sources of non-point source contamination; septic systems, poor drainage, impervious ground cover, lawn and plant fertilization, and household behaviors the challenges are much greater.

Nonetheless, it was the farmers who challenged the TMDL. In January 2011 American Farm Bureau Federation and the Pennsylvania Farm Bureau filed a complaint in federal court against the EPA to throw out the TMDL. The two Farm Bureaus were joined by the National Association of Home Builders, the National Chicken Council, the National Corn Growers Association, the National Pork Producers Council, the National Turkey Federation, The Fertilizer Institute, and the U.S. Poultry & Egg Association. This group known collectively as “the Farm Bureau Group” made three complaints: (1) that the pollution limits or TMDL exceeded EPA’s authority, (2) that they were based on faulty science, and (3) that the plaintiff did not have adequate time to participate in the comment process and filed a motion for summary judgment against the EPA.

The EPA was joined by the Chesapeake Bay Foundation, Citizens for Pennsylvania’s Future, Defenders of Wildlife, Jefferson County (WV) Public Service District, Midshore River Keeper Conservancy, and the National Wildlife Federation. Several municipal waste water treatment groups were also allowed to intervene on behalf of EPA. The EPA group filed a counter motion for summary judgment against the Farm Bureau Group’s motion for summary judgment and oral arguments were made in October 2012.

Last September the District Court affirmed that the pollution limits that EPA established for the Chesapeake Bay and its tributaries are within the purview of the Clean Water Act and are based on sound science. The Court also found that the Farm Bureau and Homebuilders had ample time to review and comment on the proposed limits. Summary judgment was granted to the EPA.

The Farm Bureau Group is appealing that decision to the Third Circuit Court of Appeals in Philadelphia and have now been joined by a group of 21 of the nation’s 50 attorneys general who in February filed a friend of the court brief expressing concern that the Bay TMDL would set a precedent for other water bodies, including the Mississippi River basin. This month Thirty-nine members of Congress joined the Farm Bureau Group in their challenge to the EPA mandated TMDL and oversight of the Watershed Implementation Plans, saying the EPA went “far beyond” its authority when it set the TMDL limits and required states to develop the prescribed plans acceptable to the EPA showing how they would meet those limits on the timeline mandated by the EPA. This same structure of overall pollutant reduction with a mandated and supervised plan for implementation is also being used by the EPA to mandate reduction in carbon dioxide from power generation across the United States under the Clean Air Act.

This past spring when the Chesapeake Bay Foundation (CBF) and the Choose Clean Water Coalition (CCWC) issued their report reviewing the results of the 2012-13 pollution reduction milestones against the states’ approved plans they found that pollution is being reduced in every state and Washington DC. However, they report that Pennsylvania and Delaware fell short in meeting their overall nitrogen pollution reduction target for 2013. In particular, estimated loads from the agricultural sector actually increased for nitrogen in Pennsylvania. The wastewater sector is already meeting or exceeding 2017 nutrient reduction goals in Pennsylvania, Delaware, Washington DC and Virginia. Non-point source pollution control on agricultural operations and control of the individual homeowner in urban and suburban areas is proving challenging everywhere, but Maryland. However the CBF and CCWC voiced their concerns about the underlying data for Maryland's calculations on retrofitting stormwater management saying: “There is a lack of transparency concerning both the numbers being reported to the state, as well as how the reductions are calculated.” In addition, while Maryland is tracking dead on target in meeting its pollution reduction milestones they have a long way to go to meet the 2017 and 2025 goals.

Now the Chesapeake Research Consortium and Bay Journal are planning a conference to discuss what they believe is the real policy solution to restoring the Chesapeake Bay. These organizations are looking to discuss and the possibility of and implementation of growth limits on population and the economy to achieve a sustainable Chesapeake Bay. The TMDL stated goal is to restore the Chesapeake Bay to its ecological condition in 1950. The targets of the TMDL are estimates of what those pollution levels were at that time. In 1950 there were approximately 8 million people living and working in the Chesapeake Bay watershed. 

Today there are approximately 16 million people living and working in the 64,000 square mile Chesapeake Bay watershed. The Chesapeake Research Consortium and the Bay Journal are questioning if a restored Chesapeake Bay can be achieved if the population an economy is “allowed” to continue to grow. It is a valid and realistic concern; however, these groups do not seem to question if EPA is can use the Watershed Implementation Plans for the Chesapeake Bay states to control land use, growth and water quality policy decisions. Congress did not grant to EPA the authority to control land use under the Clean Water Act. Growth and sustainability are issues that need to be addressed on the local level.

The Waters of the United States

Coming soon to federal regulation

On March 31, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) released a proposed rule to expand protection and regulation under the Clean Water Act to streams and wetlands that are merely seasonal. The text of the rule will appear in the Federal Register in April and open a 90 day comment period.

Though the EPA news release called this action a “clarification,” it is tremendous expansion of the scope of the 1972 Clean Water Act which made it illegal to discharge of pollutants into the navigable waters of the United States unless a permit was obtained. The discharge of pollutants regulated under the Clean Water Act was from so called point sources. Point sources are discrete conveyances, such as a pipe. The regulation was intended to stop the free discharge of sewage and industrial waste into our rivers.

The proposed rule expands the definition of navigable waters to apply to include wetlands, seasonal streams and any water that might at any time during the year impact or reach the navigable waters of the United States. In this way the EPA does not see this as an expansion of the Clean Water Act jurisdiction, but it is. The proposed rule will sweep in waters previously considered isolated or exempt and that are a great distance from navigable waters.

For several years EPA has attempted to expand the reach of the Clean Water Act to all waters and discharges to include all sources. Federal authority does not extend to non-point sources, such as from run off from agricultural and urban sources not part of a storm sewer system as well as other small sources such as septic systems. The EPA has been frustrated in their attempts to address what they view as the current generation of environmental problems. These problems are subtle, much less visible to the naked eye because they are from diffuse or non-point sources and often not nearly as susceptible to a top-down, command-and-control approach.

Agriculture is reported to be one or the main non-point sources of water pollution and in studies done in the Chesapeake Bay Watershed and Sacramento River Delta and other locations the contamination from agriculture runoff has been the major source of contamination. Pesticide runoff is a large contributor of known pollutants to the watersheds and may be a significant contributor of endocrine disruptors to the freshwater supply. Both rain feed and irrigated agriculture are sources of contamination of fresh water. Now EPA is making another attempt to expand the Clean Water Act reach to all water and all sources of pollution.

EPA has overcome the challenges of regulating every source of contamination in the Chesapeake Bay Watershed by imposing the Chesapeake Bay pollution diet, the Total Maximum Daily Load (TMDL) mandated to the six Chesapeake Bay Watershed states (Virginia, Maryland, Delaware, New York, Pennsylvania and West Virginia) and the District of the Columbia. The TMDL sets a total Chesapeake Bay watershed limit for the entire region of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus and 6.45 billion pounds of sediment per year which is a 25% reduction in nitrogen, 24% reduction in phosphorus and 20 %t reduction in sediment from the current levels. The pollution limits are then partitioned to the various jurisdictions and river basins based on the Chesapeake Bay modeling tools and monitoring data.

The US EPA has mandated these levels and allowed the states (and District of Columbia) to determine how to achieve them (with the EPA’s approval) by threatening to use what they call “back stop measures”, but are simply reductions in the allowed (permitted) releases from point source permits (waste water treatment plants, municipal separate storm sewer systems, and confined animal feed lots) to achieve the TMDL Essentially, they have said do this in a way we find acceptable or we will impose the most direct and expensive method to achieve our clean water goals.

Now, EPA wants to expand their authority to every bit of water in the US and will be able to effectively and directly regulate all sources of pollution without working through the states. If adopted as proposed, this rule will be felt throughout the U.S and in all areas of our economy and lives not previously directly touched by the EPA. It will have a profound impact on many locally regulated activities, including home building, mining, road construction, commercial property development and water infrastructure projects. The capricious application of the federal command and control regulatory scheme will directly impact all our lives.

The Supreme Court, the EPA and Wetlands

In 2005 Mike and Chantell Sackett purchased less than an acre of land to build a home near to but not adjoining a lake. The lake front homes had already been built. After obtaining building permits from the county, they began the building process by spreading fill material over the lot. Two people from the U.S. EPA and one person from the Army Corps of Engineers appeared and issued the Sacketts an “Administrative Compliance Order” (ACO), alleging the land was a wetland subject to the Clean Water Act jurisdiction and ordered the Sacketts to restore the land to its original condition or face $37,500 in fines per day for violation of the Clean Water Act and undisclosed to the Sacketts, an additional $37,500 per day for violating the compliance order. The Sackett family appealed for a hearing believing that their land was not a wetland, but was denied by EPA and the federal court.
In addition under an agreement between the U.S. EPA and the Army Corps of Engineers the Sacketts could not obtain a permit (even if they wanted to) until the open enforcement action was concluded. The Army Corp of Engineers insisted the site must be restored to its previous condition to apply for a permit to place fill material on a wetland. However, under the new guidance the EPA and Army Corps of Engineers can determine a site is a wetland subject to the Clean Water Act based on “general scientific literature,” in lieu of actual case-specific analysis of the water itself, and so the Sacketts found themselves in a Catch 22.

On Wednesday, March 21, 2012 the U.S. Supreme Court unanimously ruled that the Sacketts may seek pre-enforcement judicial review of ACOs and that their inability to seek pre-enforcement judicial review of the ACO violated their rights under the Due Process Clause of the U.S. Constitution. The EPA had maintained that the ability to issue compliance orders with huge financial penalties without the ability to seek recourse was an effective means to obtain compliance. However, the Supreme Court disagreed. The effective scope of the federal regulations and power were expanded by the 2011 Guidance to include any conceivable naturally occurring water.
The Clean Water Act (CWA) of 1972 makes it a crime to discharge pollutants into the "navigable waters of the United States." However, what constitutes a "pollutant" or "navigable water" has been open to interpretation and a series of guidance documents over the years have continually expanded the definition of “navigable waters of the United States” until it is now defined by the US EPA and the Army Corps of Engineers as:
Traditional navigable waters
Interstate waters
Tributaries to navigable waters and interstate waters
Seasonal tributaries, steams or creeks
Wetlands adjacent to any of the above
And last year the agency added the “other” category that seems to include everything but swimming pools, fountains, irrigation ditches and stock watering systems. This Supreme Court ruling did not in any way narrow this interpretation of the reach of the Clean Water Act.

The National Cattlemen’s Beef Association (NCBA), the American Petroleum Institute and the Public Lands Council (PLC) filed amicus (friend of the court) briefs to the U.S. Supreme Court in the Sackett case because according to NCBA Deputy Environmental Counsel Ashley Lyon, this case could have far-reaching impacts on farmers and ranchers and all private landowners. Few of us can afford the legal resources to address an EPA enforcement action, or afford to restore properties to apply for a Clean Water Act permit if our property is deemed to be subject to the Clean Water Act under the guidance. The guidance is open to inconsistent interpretation and could be used unfairly as it was in this case. Now it is possible to obtain a decision that land is not subject to Clean Water Act before an ACO or enforcement action by the EPA. Though there are still no objective standards to determine which waters fall under the act.
There needs to be a consistency of standards in making a wetland determination. The degree of latitude that exits is unacceptable and results in inconsistent determinations and a Kafkaesque regulatory process. That is unacceptable in America. There should be standards like distance, hydrologic connection, and flow connection, size of watershed and storm impact that can be measured and considered in a consistent and quantified way so that a determination could be easily made and reviewed. The EPA Guidance has divorced the law from fact and abused their power potentially putting ordinary home owners at the mercy of EPA employees. It is time for congress to clarify the scope and jurisdiction of the Clean Water Act.

Expansion of Clean Water Act and Its Impact on You

On April 27th 2011 U.S. EPA and the U.S. Army Corps of Engineers released draft guidance on expanding the scope of the Clean Water Act. The guidance, now in effect, will be used for determining whether a waterway, water body, or wetland is protected by the Clean Water Act. The public comment period was open from May 2-July 1 2011. The proposal prompted 300,000 comments the majority of which were organized by environmental groups and are supportive; however wastewater compliance community also had many concerns. However, the comments were really immaterial because the EPA is not required to address public concerns to guidance documents and no changes contemplated or made to the draft and the guidelines are now final.

The Clean Water Act (CWA) of 1972 makes it a crime to discharge pollutants into the "navigable waters of the United States." However, what constitutes a "pollutant" or "navigable water" has been open to interpretation and a series of guidance documents over the years have expanded the definition of “navigable waters of the United States” until it is now defined by the US EPA and the Army Corps of Engineers as:

Traditional navigable waters
Interstate waters
Tributaries to navigable waters and interstate waters
Seasonal tributaries, steams or creeks
Wetlands adjacent to any of the above
And finally, the other category that seems to include everything but swimming pools, fountains, irrigation ditches and ponds or stock watering systems.

The Guidance broadened a recent Supreme Court decision that created a “significant nexus” standard for wetlands to include all tributaries and isolated water and allow functions of waters to demonstrate a “significant nexus” exists. The list of functions is extremely broad and the Guidance allows for decisions to be based on general scientific literature describing functions that generally apply to the types of waters in question, in lieu of actual case-specific analysis of the water itself. Essentially, this guidance creates federal jurisdiction over everything but swimming pools, fountains, irrigation and stock watering ditches and ponds that would revert to dry upland. Guidance places us all within the whim of regulators, and we all may find ourselves in the position of Chantell and Michael Sackett.

In 2005 the Sacketts purchased less than an acre of land to build a home near to but not adjoining a lake. After obtaining building permits from the county, they began the building process by spreading fill material over the lot. Two people from the U.S. EPA and one person from the Army Corps of Engineers appeared and issued the Sacketts an “Administrative Compliance Order” (ACO), alleging the land was a wetland subject to the Clean Water Act jurisdiction and ordered the Sacketts to restore the land to its original condition or face nearly $50,000 in fines per day. The Sackett family appealed for a hearing believing that their land was not a wetland, but was denied by EPA and the federal court.

In addition under an agreement between the U.S. EPA and the Army Corps of Engineers the Sacketts could not obtain a permit (even if they wanted to) until the open enforcement action was concluded. The site must be restored to its previous condition to apply to the Army Corps of Engineers for a permit to place fill material on a wetland. However, under the new guidance the EPA and Army Corps of Engineers can determine a site is a wetland subject to the Clean Water Act based on “general scientific literature,” in lieu of actual case-specific analysis of the water itself.

The case is scheduled to be heard by the U.S. Supreme Court in January 2012. The Supreme Court will consider whether the Sacketts may seek pre-enforcement judicial review of ACOs and whether petitioners’ current inability to seek pre-enforcement judicial review of the ACO violates their rights under the Due Process Clause of the U.S. Constitution. The regulations, procedures, and guidance on judicial review of Administrative Compliance Orders were created before the federal regulations and power were expanded by the 2011 Guidance to include any conceivable naturally occurring water.

The National Cattlemen’s Beef Association (NCBA) and the Public Lands Council (PLC) recently filed an amicus (friend of the court) brief to the U.S. Supreme Court in the Sackett case because according to NCBA Deputy Environmental Counsel Ashley Lyon, this case could have far-reaching impacts on farmers and ranchers and all private landowners. Few of us can afford the legal resources to address an EPA enforcement action, or afford to restore properties to apply for a Clean Water Act permit if our property is deemed to be subject to the Clean Water Act under the guidance. The guidance is open to inconsistent interpretation and could be used unfairly. There is no provision to obtain a decision that land is not subject to Clean Water Act before an ACO or enforcement action by the EPA. There are no objective standards to determine which waters fall under the act. There should be standards like distance, hydrologic connection, flow connection, size of watershed and storm impact that can be measured and considered in a consistent and quantified way so that a determination could be easily made and reviewed. The EPA Guidance has divorced the law from fact and this must be restored.

The Federal Budget and the Chesapeake Bay TMDL

Living within 60 miles of Washington DC has sparked my interest in civics and made me think much more about how the government is run than I ever did back in my days in California. Under the Constitution of the United States, funding for the federal government is provided by appropriations made by Congress every year without exceptions. Funding for government employees salaries and wages is appropriated by Congress for a fiscal year which runs from October 1 to September 30th. Congress may pass "continuing resolutions" providing some interim funding. However, when budget appropriations are not enacted and no continuing resolutions are passed the federal government will come to a screeching halt.

Congress failed to pass a budget in 2010, the federal government has been funded through temporary continuing resolutions. In February Congress couldn’t agree on a long-term continuing resolution that would fund the government for the next seven months until the end of the fiscal year. Instead Congress passed an extension that will keep the government running through March 18, 2011. Unless another continuing resolution is passed before March 18th we may be headed to the first government shutdown since 1990. Government employees who provide essential services, the army, air traffic control, Congress, corrections, fire protection, are required to continue working. Non-essential services will be shut down.

Government shutdowns in the past have been short lived, but the impact of some of the budget changes in the wind could have long term implications for us, our children and our communities. I do not pretend to know where this budget should and will end up. I am watching and thinking, but maybe the latest continuing resolution is an indication of things to come. In FY2010, the US EPA received the largest increase in funding since its inception, 34% increase over 2009 funding. However, the continuing resolution passed in February slashed EPA’s budget by $3 billion (almost 30%) and contained a number of environmental policy provisions seemingly intended to stop the expansion of the federal regulatory framework in a rejection of top down command and control environmental regulation.

The recently passed bill states that no funds made available by the continuing resolution may be used by the US EPA to implement, administer or enforce a change to a rule or guidance document in regards to the “waters of the United States.” definition under the Clean Water Act. This ensures the Clean Water Act be limited to the historic federal scope of the navigable waters of the United States and Commerce Clause authority under the Constitution. The goal of this portion of the bill was to prevent the expansion of federal control to include all waters- puddle, moist land area, seasonal stream, man-made waterway, storage facility, conveyance system, holding facility, or ditch, and prevents federal control of non-point source contamination.

The continuing resolution also prohibits its funds from being used to enforce any greenhouse gas emissions regulations effectively nullifying the EPA regulation of carbon dioxide under the April 2009, endangerment and a cause or contribute findings for greenhouse gases under the Clean Air Act which was an effort to implement by regulation the framework of the Waxman-Markley energy bill, which was passed by the House but died in the senate.

Several successful amendments to the continuing resolution target environmental regulations are part of the current framework.
• Rep. Kristi Noem’s (Republican from South Dakota) approved amendment stops regulation of particulate matter under the National Ambient Air Quality Standards (NAAQS), The EPA had planned to release a draft proposal later this year. There was concern about this proposal from rural local governments that they would be considered in non-attainment due to common events, such as driving down unpaved roads, wildfires and wind storms.
• Rep. Tom Rooney’s (Republican from Florida) approved amendment forbids the EPA from using federal funds to implement new water quality Total Maximum Daily Load (TMDL) standards in Florida. New standards were issued by the EPA in November and since then, the state of Florida has filed suit against the EPA.
• Rep. Bob Goodlatte’s (Republican from Virginia.) approved amendment prohibiting federal monies from being used to implement TMDLs or water implementation plans (WIPs) in the Chesapeake Bay.

After Mr. Goodlatte’s amendment was passed he posted a statement on his web site that began with: “For the past two years we have seen the Administration and the Environmental Protection Agency (EPA) take overzealous action in the Chesapeake Bay Watershed. These actions have been taken without a cost benefit analysis to determine the overall cost of these mandates or even whether or not they will benefit the Bay. EPA has proposed arbitrary limits on the amounts of nutrients that can enter the Chesapeake Bay, and how these nutrients enter the Bay. At the same time EPA is seeking to expand their regulatory authority by seizing authority granted to the states and converting the Bay Cleanup efforts to a process that is a top down approach with mandatory regulations…”

Mirroring the sentiments of the National Association of Conservation Districts (NACD), as a conservationist, I fully support the common goal of a cleaner, healthier Chesapeake Bay watershed. I also fully support state oversight of non-point source contamination and feel that the conservation districts must continue working with landowners to prevent pollutants from reaching waterways through conservation and best farm practices that enable farmers to responsibly manage nutrients from fertilizer and manure and minimize soil loss from farmland. The Virginia (and the other five states) must fully fund the conservation districts and their programs to fully implement the Chesapeake Bay Protection Act so that we continue to work to restore the Chesapeake Bay.

The Chesapeake Bay is the largest estuary in the United States. It is a treasure, but estuaries are fragile ecosystems that are very susceptible to disturbances both natural and those created by man. Diverting fresh water from tributaries for irrigation and drinking water supplies changes flow and quantity of fresh water entering the estuary, and impacts the balance within the ecology. Excess nutrients and sediment from sewage treatment plants, farm fields and animal pastures, urban and suburban run off from roads and landscaping can cause eutrophication. As the ecosystem of estuaries declines, species die out, coastlines experience excessive erosion by wind, tidal action and ice. The Chesapeake Bay must be protected and restored. State initiatives have brought very slow improvement in the nutrients and sediment levels in the bay despite the huge growth in population and we need to continue and expand these efforts no matter what the happens on Capital Hill. The Chesapeake Bay is our estuary and we need to protect and restore it, starting in our own homes.

Chesapeake Clean Water and Ecosystem Restoration Act- Managing an Ecosystem by Brute Force

On October 20, 2009, Senator Cardin of Maryland introduced, S. 1816, the “Chesapeake Clean Water and Ecosystem Restoration Act,” on behalf of himself and Senators Mikulski, Carper and Kaufman. The legislation reappeared from Senator Boxer’s Committee on June 30th 2010 with all 64 plus pages stricken and with a 98 page amendment. Expanding federal authority even beyond that of the original bill to determine what science is acceptable and funded.

The Chesapeake Bay Act is an amendment to the Clean Water Act that serves to expand federal authority down to the smallest potential source of pollution. In the findings section the Chesapeake Bay Act states that the largest land use and largest source of nitrogen, phosphorus, and sediment within the Chesapeake Basin is agriculture. It also states that air pollution of nitrogen oxides and ammonia from air pollution contributes 1/3 of nitrogen loadings to the Bay. Significantly, the legislation states that suburban and urban spread is the fastest growing land use and that suburban and urban storm water run off is the only major source of pollution in the watershed that continues to increase. The Chesapeake Bay Act goes on to state this has been caused by the impervious cover (pavement, buildings and roadways) increasing by 250,000 acres between 1990 and 2000. Finally, the Chesapeake Bay Act states that 58% of the watershed is undeveloped and mostly forested, but that 100 acres of forest are lost to development each day. These claims have been determined by modeling, confirmation sampling and interpretation of data. In other words by the federal government and universities and experts.

This new legislation grants sweeping new authority to promulgate any regulation and issue any permit needed to control pollution from any source (including your back yard) to meet water quality goals set by the EPA, notwithstanding any other provision of the Clean Water Act. Thus, the Clean Water Act exemptions for agricultural storm water or irrigation return flows, or residential storm water flows are voided. This provides authority for the EPA to issue section 402 permits to all minor sources of pollution including your home, certainly your neighborhood. States are given authority to issue permits for any pollution source that the Chesapeake Bay State deems necessary. In addition, it requires that the EPA establish standards relating to site planning, design, construction and maintenance for project resulting in impervious development (concrete, roads, buildings, patios, increasing building footprints), essentially any development. The federal government is granted the right to control building and developments within Chesapeake Basin of the six states.

The legislation creates a nutrient trading program throughout the Chesapeake Basin based on imperfect modeling of the effectiveness of agricultural best management practices, storm water management plans. To development essentially a cap and trade program to attempt to accelerate the restoration of the Chesapeake Bay by creating nutrient credits based on federal government blessed “Big Science and Expert” approved model and best management practices (BMPs) that can be bought and sold to meet nutrient reduction goals. One unintended consequence will be in exploitation of know inefficiencies and errors in the models to game the system. In addition, BMPs need to be adopted then maintained year in and year out, so they need to be tracked. It is not like buying a more efficient filter or machine, but maintaining plantings and drainage patterns, composting animal waste, rotating pastures. So the legislation requires EPA to maintain a database with comprehensive information on best management practices.

Many of the other things covered by the legislation codifies as law the requirements for states to adopt and submit to EPA for approval watershed implementation plans for each segment of the Chesapeake Basin within their states. Codifies the total maximum daily load TMDL limits for nitrogen, phosphorus and sediment and the methods for implementing enforcing the programs. These regulations are currently being implemented without this act which serves to place land use control into federal hands. With one piece of legislation we deliver into federal hands the authority to engage in social, economic and environmental engineering in the six state region.

Revisions to the Clean Water Act

Recently Congressman James Oberstar introduced H.R. 5088, America’s Commitment to Clean Water Act (formerly known as the Clean Water Restoration Act). Congressman Oberstar has been trying to get a version of this bill through congress for years. This is a revision to the current federal regulation that deletes the term “navigable waters” from the Clean Water Act (CWA) and replaces it with “waters of the United States”. The National Association of Conservation Districts, NACD, is not supporting this bill because it is concerned about rural agricultural areas that may be impacted by changes in the law and subsequent changes in jurisdiction over drainage ditches, dry creek beds and other areas that occasionally convey water. These seasonal creeks, wetlands and drainage ditches should not be regulated on a federal basis, but should be overseen locally since water management is really a local issue. A federal regulation that would adequately and appropriately regulate the creek in my back yard would not be the appropriate tool for the 1,200 miles of canals in the California water distribution system. The central command and control model is inappropriate for the diverse issues associated with regulating and permitting water. Nor should the method the EPA proposes for the Chesapeake Bay States, presenting numeric target and mandating a regulatory scheme be put in place, be expanded to all the waters of the United States for all the chemicals of concern.

Congressman Oberstar’s bill has drawn support from environmental and conservation groups including Clean Water Action, the National Wildlife Federation and Trout Unlimited. Other groups including the NACD, American Farm Bureau Federation and the Waters Advocacy Coalition, which includes farming, cattle, building and manufacturing groups, oppose the bill. Various versions of this bill have been offered by Congressman Oberstar over the years. The current version of the bill has the same basic goal as previous versions, to protect all of the nation's waters using federal regulations. During the news conference in support of the bill it was high lighted that is different from prior versions. To try and get this bill through congress, this version grandfathers prior converted croplands, exempts waste treatment systems and excludes groundwater from the definition of “waters of the United States.” These changes were intended to overcome the objections to the 2007 version of the bill, HR 2421, federal regulation of ground water and reclaimed water, which are regulated by the States if at all. This regulation would ignore the importance of groundwater and protecting that valuable resource while regulating seasonal streams. About 21% of the freshwater used in the United States in 2000 came from groundwater sources; the other 79% came from surface water. Ground water is an important natural resource, especially in those parts of the country that don't have ample surface-water sources, such as the arid West. This regulation would ignore the more than one fifth of the fresh water supply that comes from groundwater while regulating all surface water.

Although the intent of these bills, to protect wetlands and the water resources of the United States is a laudable one, the current legislation will still have unintended consequences, including extending the enforcement of federal “numeric water quality limits” upstream and controlling on a federal level local land use decision making. The current bill’s exemptions do not exclude local drains, streets, curbs and gutters from federal pollutant limits. This would result in federal regulation of rural, urban and suburban runoff, eliminating local control of decisions on land use and water supply to the States and may possibly interfere with water rights. No longer will the Clean Water Act be limited to the historic federal concern with navigable waters and Commerce Clause authority under the Constitution. Instead, this proposal will expand federal control over, puddle, moist land area, man-made waterway, storage facility, conveyance system, holding facility, or re-regulating reservoirs.

The Second Age of Water Regulation

In the Index of Leading Environmental Indicators, 14th Edition, April 2009, Stephen Hayward highlights the short falls in the way we have been monitoring water quality in the United States. The National Water Quality Inventory Report to Congress (305(b) report) had been the primary vehicle for informing Congress and the public about general water quality conditions in the United States. In the past, this document characterized water quality based on differing local monitoring efforts. The Report was intended to identify widespread water quality problems of national significance, and describes various programs implemented to restore and protect our waters. This had served as a proxy for the quality of the waters of the nation. However, the methods states use to monitor and assess their waters and report their findings varied from state to state and even over time. Many states target their limited monitoring resources to waters they suspect are impaired and, therefore, assess only a small percentage of their waters. These may not reflect conditions in state waters as a whole. States often monitor a different set of waters from cycle to cycle.

Hundreds of organizations around the country conduct some type of water quality monitoring within the states. These include federal agencies such as the US EPA and the U.S. Geological Survey. They also include state, interstate, tribal and local water quality agencies; research organizations such as universities; industries and sewage and water treatment plants; and citizen volunteer programs. These diverse groups may collect water quality data for various purposes utilizing various levels of testing and targeting specific pollutants. The cost of water quality testing is determined by the number of pollutants tested for and at what level of detection. So, resources were used to target suspected contaminants. The final reports rendered to the US EPA were so inconsistent in their region by region scope as to be meaningless in their ability to measure water quality across the nation or to identify what has emerged as the newest concerns about water quality.

Large fish kills in the late 1990’s began a renewed process of discovery to identify the cause. Researchers from the U.S. Geological Survey observed intersex in bass species collected from the Potomac River and its tributaries in West Virginia, Maryland, and Washington DC, and also quantified endocrine disrupting chemicals, EDCs, in their blood. Though extensive water testing was done, the actual source or sources of EDC was not identified. These recent studies by the US Geological Survey and Fish and Wildlife have prompted the US EPA to change its monitoring and assessment guidance to the states in an attempt to generate a more useful report of the quality of the nation’s water.

Suspect or known endocrine disrupting chemicals are associated with industrial releases; widely used by the general public every day in homes, on farms, by businesses and industry. There are the natural occurring EDC that are part of the ecosystem. Some EDCs can be released directly to the environment after passing through wastewater treatment processes, which are typically not designed to remove low levels of these kinds of pollutants from the effluent. The problem is compounded by the fact that wastewater treatment effluent is released to rivers that are used for drinking water and in some locations like California water treatment effluent is directly mixed with drinking water supplies. In addition, sludge from secondary treatment processes are land-applied providing a route for EDCs to leach or run off into nearby bodies of water. Through either waste water treatment plant effluent or run off endocrine-disrupting chemicals, including synthetic estrogens and androgens, naturally occurring estrogens, as well as many others capable of modulating normal hormonal functions and steroidal synthesis in fish and possibly other animals find their way into rivers and streams. So far studies of septic systems have not found these substances being released to the groundwater in the areas studied. However this research has just begun and only a very limited number of groundwater studies have been performed looking for EDCs.

The occurrence of intersex fish in the Potomac River, and in other areas of the US resulted in Congressional hearings in the fall or 2006 to inquire about the “State of the Science on EDCs in the Environment,” as well as the US EPA’s activities associated with EDCs. The hearings resulted in a White Paper; “AQUATIC LIFE CRITERIA FOR CONTAMINANTS OF EMERGING CONCERN” The next step of this work was the release in April of 2009 by the US EPA of the Final List of Initial Pesticide Active Ingredients and Pesticide Inert Ingredients to be screened under the Federal Food, Drug, and Cosmetic Act as potential endocrine disruptors. The US EPA began with the Clean Water Act. This is a new era of discovery of pollutants of concern. Though the work has just begun, the second age of water regulation has arrived.