The Water Front

2005's top water-quality issues

With one party in charge of all three branches of the federal government, there have been no dramatic announcements of radical changes in water quality policy. At the time of this writing, it appears recent issues and trends in water quality will remain the hot issues for 2005.

Methyl tertiary butyl ether (MTBE) is a gasoline additive that improves combustion by increasing available oxygen, and thereby reduces automobile emissions of carbon monoxide and ozone. Unfortunately, it is also a carcinogen that dissolves easily in ground water, migrates quickly in soils and aquifers, and is resistant to biodegradation and difficult to remove from contaminated water.

Use of MTBE in significant quantities as a gasoline oxygenate began in the 1980s as part of the effort to remove lead from gasoline. Almost immediately, MTBE contamination started to appear in ground water, due in part to aging underground storage tanks that leaked and the absence of a requirement for double-walled tanks. The U.S. Environmental Protection Agency (EPA) has not established drinking water standards for MTBE, although some states have. Today, at least sixteen states have banned MTBE from gasoline.

In energy legislation passed by the last U.S. Congress, one provision would have granted immunity to MTBE producers, making it very difficult for water providers to compel cleanup of MTBE contamination or to recover damages. House Majority Leader Tom DeLay, (R-Texas) was a strong proponent of this provision, although it had to be dropped when the Senate was two votes short of the sixty votes necessary to end debate on the measure. With Republican gains in both the House and the Senate, Rep. DeLay has vowed to pass MTBE producer immunity legislation in the 109th Congress.

Water Quality Trading
In November of 2004, EPA published the lengthy Water Quality Trading Assessment Handbook, indicating its continued support for market-based approaches to water quality. Water quality trading allows a polluter to maintain its pollutant discharges by paying another polluter to reduce its discharges. The theory is that different parties may face different costs to achieve the same level of pollution reduction, and it is cost efficient to give polluters an economic benefit for finding another polluter who can reduce discharges more cheaply than they can. The new handbook provides guidance to "assess the environmental, economic, and technical factors that will influence the ability to create and sustain a water quality trading market." It helps to implement the Water Quality Trading Policy adopted by the agency in January 2003.

The Water Quality Trading Policy encourages the development of trading markets for specific pollutants -- primarily nutrients and sediment. Both the policy and the new handbook observe that markets in other pollutant reductions may be allowed, but note that some pollutants, such as bioaccumulative toxins, may be unsuited to trading.

Watershed-Based Permitting
EPA's watershed permitting guidance document came out in December 2003, but its implementation by regional offices and state regulatory agencies is still a work in progress. As described in the guidance, watershed-based permitting is an effort to develop National Pollutant Discharge Elimination Systems (NPDES) permits for multiple point sources within a watershed, focusing on water quality standards. "This approach, aimed at achieving new efficiencies and environmental results, provides a process for considering all stressors including non-point sources within a hydrologically defined drainage basin or other geographic area, rather than addressing individual pollutant sources on a discharge-by-discharge basis." Among other things, watershed-based permitting will allow permit writers to synchronize permits and to develop water quality-based effluent limitations using a multiple discharger modeling analysis.

This sounds a lot like what water quality-based effluent limitations were intended to do all along, but this approach will help coordinate the administrative and policy-setting bodies of regulatory agencies. Under current practice, permit writers collect information from individual dischargers and then implement the limitations on pollutant discharges given in the form of water quality criteria or, where they have been adopted, total maximum daily loads (TMDLs). The policy-setting body, in turn, takes into account the individual permits in setting new water quality standards and TMDLs. Watershed-based permitting is one way to integrate those efforts and to make the process more efficient.

Emerging Pollutants
Although scientists and agencies have been aware of the problems associated with endocrine disruptors in water for some time, this is an issue that is starting to get media and public attention. Wastewater treatment systems are not designed to remove most pharmaceutical substances from residential and agricultural sources, including those that are hormone-based or that mimic hormones. Even worse, these chemicals have been found in drinking water delivered to taps, indicating that water treatment facilities are also not effective in removing them. These chemicals are particularly troublesome because they are biologically active in micro quantities, affecting the embryonic development of animals at extremely low doses. Further, testing for the presence of these chemicals in water is relatively expensive.

The 1996 Food Quality Protection Act and the 1996 amendments to the Safe Drinking Water Act require EPA to conduct research on the estrogen-mimicking effects of such substances on humans. There is increasing evidence of adverse effects on aquatic wildlife, and possibly humans, from endocrine disruptors, including cancers, birth defects and interference with reproduction.

Budget Issues
The exploding federal debt, ongoing expenses in Iraq, tax cuts, rising federal expenditures on health care, and changes in Congress increase the likelihood that we will see reduced spending on environmental protection in the near future. All predictions are that discretionary domestic spending will have to go down. In October, the Senate may have spared EPA from a half-billion dollar cut in the Clean Water State Revolving Fund as proposed in the Bush Administration's FY 2005 budget request and approved by the House Appropriations Committee. The actual budget must now be worked out in conference committee. With increased support for the administration's agenda in the legislature and increased fiscal pressure on other fronts, program cuts at the federal level seem probable next year. Many state budgets are similarly constrained, which may result in job losses in both the governmental and private sectors for environmental professionals in the near term.

Federal Jurisdictional Reach
Following the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), the lower courts have been trying to sort out just how broadly they should read the high court's opinion. Some interpret the decision narrowly as merely invalidating the Migratory Bird Rule as a basis for jurisdiction over isolated waters. Others read it broadly as holding that Congress did not intend to assert jurisdiction, through the Clean Water Act (CWA), over any waters except those that are navigable, and perhaps also adjacent wetlands and direct tributaries.

On January 15, 2003, EPA and the Corps of Engineers issued a Joint Memorandum to provide guidance to their field agents about the scope of Clean Water Act jurisdiction after SWANCC. The memorandum notes, "Although the SWANCC case itself specifically involved Section 404 of the CWA, the Court's decision may affect the scope of regulatory jurisdiction under other provisions of the CWA as well, including the Section 402 NPDES program, the Section 311 oil spill program, water quality standards under Section 303, and Section 401 water quality certification." Perhaps the most controversial guidance of the Joint Memorandum is that field staff must seek "formal project-specific Headquarters approval" prior to asserting jurisdiction over any intrastate, non-navigable waters for permitting or enforcement purposes if the basis for asserting jurisdiction is that the use or degradation of such water could affect interstate commerce.

Water users in the arid West are perhaps more sensitive to the hydrologic connection of surface water and ground water than judges and administrators in the District of Columbia. The engineering presumption in Colorado is that virtually anything that is wet (or occasionally gets wet) affects the flow of a navigable stream at some point. The new guidance will almost certainly reduce the federal protection for navigable waters.

On the same day as the Joint Memorandum, the EPA and Corps published an Advanced Notice of Proposed Rulemaking seeking public comment on the development of a regulatory definition of "waters of the U.S." in response to SWANCC and subsequent case law. The public response was hugely negative to the anticipated reduction in the scope of Clean Water Act jurisdiction, with over 130,000 comments received. On December 16, 2003, the agencies announced that the administration would not pursue formal rule changes concerning regulatory jurisdiction over "isolated" waters. However, the Joint Memorandum remains as a guidance document for both agencies.

Two recent reports, one by the Pew Oceans Commission and the other by the U.S. Commission on Ocean Policy, have confirmed the declining ecological health of the oceans and made recommendations for changes in U.S. policy and management. The U.S. Commission was created under the Oceans Act of 2000, and its final report, released on September 20, 2004, is entitled "An Ocean Blueprint for the 21st Century." The Natural Resources Defense Council, in a letter to President Bush, observed, "Not since the Stratton Commission report in 1969 has the nation been provided such a comprehensive report on our oceans and coasts."

The U.S. Commission's report is an extraordinary document in many ways. It is unusually comprehensive in its approach to analyzing the source of the oceans' problems and the many things that must be done to reverse the trends, and it is beautifully and clearly written. It establishes an uncontroversial and thoughtful set of guiding principles for developing a national ocean policy and gives specific recommendations for coordination and leadership in the federal government. Space limitations prevent a complete discussion of the proposals for changes in policy and management, but they include recommendations for improving coastal and watershed management, vessel pollution control, preventing the spread of invasive species, improving fisheries management and protection of coral communities, investing in science and exploration and improved data collection and management, and education and international cooperation.

Under the Oceans Act of 2000, the Bush Administration is required to submit to Congress, before the end of 2004, a statement of proposals to implement or respond to the Commission's recommendations. The Council on Environmental Quality has established an Interagency Ocean Policy Group to develop the President's response.

This article originally appeared in the 01/01/2005 issue of Environmental Protection.

About the Author

Joe Dischinger has practiced water and environmental law in Denver for nearly 25 years, and is a past president of the Denver Bar Association. He is Of Counsel at the Denver firm of Fairfield and Woods, P.C., and he can be contacted at 303-830-2400.

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