Plumbing the Murky Depths: Top Issues in Water Quality in 2003

• Jan 01, 2003

A Republican executive branch, an aging water quality infrastructure, the courts and, to a much lesser extent, a Republican sweep in the congressional elections, will drive the major issues in water quality regulation in 2003. On the substantive regulatory front:

• The U. S. Environmental Protection Agency (EPA) expects to release a revised regulation addressing procedures for setting total maximum daily loads under 303(d) of the Clean Water Act.
• EPA expects to address changes in regulations for sanitary sewer overflows (SSOs) and for confined animal feeding operations (CAFO).
• Woven into discharge-related water quality issues is the mounting cost of wastewater infrastructure replacement and improvement.
• On the 404 permit side of water quality regulation, the U. S. Army Corps of Engineers' regulations continue to evolve to address changes called for by the U. S. Supreme Court in the SWANCC decision.

In addition to the substantive debate on water quality issues, look for an emphasis on whether new regulations are sufficiently site-specific and disputes about whether agency decision-making was based on "best science." These process-oriented issues currently form the foundation of many of the objections to water quality regulation. Finally, although the 2002 elections resulted in a Republican sweep, this will likely foster few immediate impacts on water quality regulatory issues.

Since 1972, the Clean Water Act, 303(d), has required states to examine stream segments and to identify and prioritize a list of those stream segments that fail to meet ambient water quality standards (the impacted waters list) and then to develop A total maximum daily loads (TMDLs) for each pollutant contributing to impairment. A TMDL includes the allowable mass of pollutants from point-sources and an estimate of the allowable mass of pollutants from nonpoint sources. In 1978, EPA issued 303(d) implementing regulations, which have yet to be updated. EPA spent most of the 1990s scrambling to respond to federal lawsuits filed by the environmental community alleging EPA's failure to enforce 303(d). However, in 2003 EPA expects to issue a new TMDL regulation, which will be something for water quality professionals to examine closely.

This isn't the first attempt by EPA to revise its 1978 TMDL regulation to get ahead of the federal court litigation. In 2000, during the waning days of the Clinton Administration, EPA released a TMDL regulation (the result of work by a Federal Advisory Committee) as well as comments by thousands of stakeholders on the draft regulation. The 2000 regulation had at least nominal support from the pollutant discharge community (including the Association of Metropolitan Sewerage Agencies), which saw the regulation as relief for point sources from the burdens of TMDLs. However, agricultural and timber interests, displeased with the regulation of nonpoint sources, took the fight to Capital Hill. Although EPA announced a final regulation in July 2000, Congress effectively blocked the regulation by means of a budget rider that prohibited expenditure of public monies on the new rule in FY 2000 or 2001. The budget rider also called on the National Academy of Science (NAS) to determine whether the proposed TMDL program was based on best science. NAS did, through its research arm the National Research Council, and reported to Congress in 2001 that the 2000 regulation was not based on best science.

Chastened by its experiences with the 2000 regulation, and effectively on a new policy track after the 2000 elections, EPA's new TMDL rule is likely to be short on specifics. For example, the 2000 regulation spelled out in some detail the elements and the process that the states or EPA must use to develop TMDLs. The 2003 regulation is likely to be much less detailed on these points. Some reports suggest that the new regulation will not even specifically require implementation of TMDLs. In other words, it might require the development of impacted waters lists and possibly even wasteload allocations, but not require implementation of the TMDL through discharge permits or other means. EPA's regulation will also have to address the best science issues raised by the NRC review committee. Water quality professionals of all stripes are potentially impacted by whatever EPA proposes and the regulation is likely to be subject to litigation.

EPA has proposed modifications to its Sanitary Sewer Overflows (SSO) rule, addressing the issue of capacity and notification in the event of an overflow, as well as limitations on enforcement. EPA has estimated that there are over 40,000 overflows of sanitary sewers each year. Without a permit, these types of discharges are prohibited under the Clean Water Act. Municipal sanitary sewer systems holding SSO permits are often subject to enforcement actions for overflows that exceed the scope of their permits. EPA has acknowledged that many municipalities have vastly undersized sanitary sewer systems. The new proposed rule maintains the requirements for permits that include technology-based effluent limitations and addresses the issues of sewer system capacity, operation and maintenance. One EPA estimate suggests that municipalities will need to spend between $93.5 million and $126.5 million each year to accommodate the proposed rule changes. Funding acquisition for this is undetermined and this funding gap has been the subject of congressional hearings and analyses from both inside and outside industry.

EPA has also announced that the rule will address local conditions and allow each region to set up an SSO enforcement structure so that municipalities can avoid enforcement actions from overflows beyond their control. EPA expected to publish the rule in the Federal Register during the fall of 2002 and begin the public comment period. Although the rule is specific to SSOs, the agency is also seeking comment on the application of the SSO rules to Combined Sewer Overflows (CSOs).

EPA has also taken up modification to CAFO regulations. In January 2001, EPA proposed two rules, one that addressed CAFO operations regarding manure and other process waters, and another that established CAFO technology-based treatment requirements for feedlots. In the first regulation, EPA proposed changes to the definition of CAFOs, changes to the means by which CAFOs could land-apply manure and other process waters, changes requiring processors to be co-permittees, and changes to ensure public access to information regarding CAFO permits. In the second regulation, EPA proposed certain minimum types of practices, such as containment pond construction and setback requirements, to avoid contamination of groundwater with CAFO wastes. EPA is also considering the merits of a suggestion that livestock producers who adopt voluntary performance standards, equivalent to best available technology, could opt out of regulation altogether.

As comments and supporting data were received, EPA amended its analytical approach and thus modified its economic and financial analysis of the impact to industry from the regulation. The agency expects to issue a final rule sometime in late 2002 or early 2003. Several states have substantively addressed CAFOs with more restrictive regulations than those proposed by EPA.

Many of this country's wastewater treatment and drinking water treatment plants are over fifty years old; a few are over one-hundred years old. Even without changes to water quality regulations, many wastewater and drinking water plants require improvement and maintenance simply to sustain current treatment levels. To address the cost of such improvements, EPA conducted a study called the Gap Analysis, which examined costs to maintain and improve treatment processes in the approximately 16,000 Publicly Owned Treatment Works (POTWs) and 75,000 water systems subject to the Safe Drinking Water Act nationwide. EPA estimated the funding gap for capital costs and operations and maintenance costs in these plants in the tens- to hundreds-of-billions of dollars, depending on the scenario considered. In keeping with the best science issue described above, EPA sent out its Gap Analysis for peer review, and received largely favorable comments. The regulated community's concerns about inability to bridge the funding gap described by the study play a large role both in the community's ability to comply with modified regulations and the reaction of the regulated community to new regulation.

Water quality professionals who deal with wetlands issues will want to watch for Corps of Engineers rulemaking following the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC case), which limited the scope of agency jurisdiction to regulate isolated wetlands pursuant to the migratory bird rule. The SWANCC case involved a consortium of Chicago-area solid waste disposal agencies who sought a 404 dredge and fill permit under section 404 of the Clean Water Act to construct a landfill in some area gravel pits. The Corps denied the permit because the pits, last used in the 1950s, had become an important stop-over point for migratory birds, and the Corps found SWANCC's mitigation plan to be insufficient. The U. S. Supreme Court ruled that the Corps had exceeded its jurisdiction in regulating the gravel pits for migratory birds, as the pits were not navigable waters, and specifically invalidated the migratory bird rule that the Corps had employed to require a 404 permit. Corps representatives told a congressional committee in September 2002 that the agency was considering regulatory changes, ostensibly in response to the U. S. Supreme Court's decision in SWANCC, which would have the effect of excluding from regulation all ephemeral and intermittent waters in the United States.

SWANCC follows on federal court invalidation in the late 1990s of the Tulloch Rule in National Mining Association v. United States Army Corps of Engineers, 145 F.3d 1339 (D.C. Cir. 1998) (NMA). The Tulloch Rule had been aimed at regulating incidental fallback of dredged material, regulation that the federal court found too expansive under the Corps' jurisdiction. In 2001, in response to the federal court decisions, the Corps announced a final rule narrowing the definition of de minimus discharge for purposes of its 404 jurisdiction. The SWANCC and NMA decisions, along with federal court decisions regarding 303(d) referred to above, highlight the importance of federal court rulings in driving the extent of agency jurisdiction over water quality matters.

The Republicans will return to Washington in 2003 with a lock on the executive and legislative branches. At least initially, this is not likely to signal a change in the direction of water quality regulation for several reasons. First, prior to the 2003 elections the direction of EPA (the primary agency charged with regulating and enforcing water quality) had already been set by a Republican president through his appointments and policy initiatives. In large measure, the emphases on the procedural issues highlighted above -- best science and site specific regulations -- are outgrowths of the change at EPA starting after the 2000 elections. Second, the elections left us with a Republican majority in Congress, but a majority that is razor thin. We can expect some chest beating about eliminating or defending the Clean Water Act, but the political consequences both internal and external of such a fight are probably too great for the party to risk with a presidential election only two years off.

However, Congress may consider the issue of Good Samaritan discharge permits under the Clean Water Act, a provision designed to encourage cleanup of discharges from abandoned hard rock mines. U. S. Representative Mark Udall, a Colorado Democrat, has spent several years working to gain consensus on the concept, which would be an amendment to the Clean Water Act and provide for a new type of discharge permit to be applied to mine drainage from abandoned mine sites. Discharge from abandoned mines is typically highly acidic, acutely toxic to aquatic life and likely to continue for centuries. The acid discharge can be successfully mitigated using relatively low-tech methods, such as construction of wetlands at the mouth of the mine, but because a discharge of water will still result, those undertaking cleanups are required to obtain and maintain an National Pollutant Discharge Elimination System (NPDES) permit, including all the associated liability. Udall's measure is termed Good Samaritan because it recognizes the value of abandoned mine cleanup and would allow well-intentioned individuals or groups to avoid the liability associated with an NPDES permit.

Finally, one long-term impact from the 2002 Elections on water quality regulation is likely to arise from the Republican-lead Senate Judiciary Committee's movement of President Bush's judicial nominees for federal judgeships. Although not monolithic, the president's judicial nominees are likely to be activist conservatives, and thus perhaps more inclined to restrict the reach of federal water quality regulation.

For EPA Office of Water information, including information about TMDLs, CAFOs, SSOs and the Gap Analysis -- www.epa.gov/OW/index.html

The American Metropolitan Sewerage Agencies homepage, an excellent source for industry water quality regulatory updates -- www.amsa-cleanwater.org

U. S. Army Corps of Engineer updates to wetlands regulations for the Tulloch Rule, also found at 66 Federal Register 4550, January 17, 2001 -- www.wetlands.com/regs

This article originally appeared in the 01/01/2003 issue of Environmental Protection.