Clean Water Act

During the next year, South Dakota will undertake the so-called “Triennial Review” of water pollution standards.  Consideration of a positive role for citizens in this Review can seem overwhelming.  Our rivers are severely polluted  --  essentially unsafe for human use  --  contributing our share to a 2017 Hypoxic (dead) Zone in the Gulf of Mexico of 8,776 square miles, the largest measured since mapping began.  The cause is understood  --  nutrient runoff, primarily from agriculture and developed lands.  The State’s response so far disappears into a haze of endless reports leading only to inaction.

Where do we stand?  Perhaps we need to think about where we come from and where we think we are going.  Finding that answer requires remedying an inattention to history  --  the tendency to view all problems as though the world was born only yesterday.  Perhaps by examining the history of attempts to control water pollution we can grasp an understanding of what needs to be done.

The “Triennial Review” addresses Water Quality Standards (WQS), which are standards for the ambient condition of a water body.  The theory of WQS is relativist, rests squarely on consumption and human use, and assumes a free use of water for waste disposal so long as pollutants do not rise to a level which violates ambient WQS.  So, WQS identify the level of waste in water that is acceptable to state authorities, and then try to abate those discharges that cause the WQS to be exceeded.

Water quality standards were tried, and they failed! Prior to 1972, WQS were the primary approach to the problem of water pollution. Why did they fail?  First, enforcement against individual polluters is almost impossible under the straight WQS approach because the polluter can deny that its discharges caused the water to “cross the line” of pollution acceptability; each polluter can blame the other. Second, states were unwilling partners; they simply failed to develop plans for meaningful enforcement of standards.

The 1972 Clean Water Act (CWA).  By 1972 the Nation’s waters were in wretched condition; the “human use” approach of WQS had failed.  In response the new law adopted a new ethical premise, that water should simply be clean; it adopted an absolutist over the failed relativist WQS approach. The key provision was the imposition of specific technology-based discharge limits on every discharge from a specific or “point” source, regardless of the ambient quality of the receiving waters.  Each such point source is subject to an individual permit, which sets specific limits on each pollutant in the discharge. 

The 1972 law kept WQS in as a safety-net back-up to point source controls. The original draft of the 1972 law eliminated the WQS approach altogether, but during debates they were left in the law as a back-up, with the added requirement that states revise WQS on a triennial basis, and that they develop enforcement measures to apply when WQS are not met.

Nationwide, the use of point source control permits made major strides, and many waters, particularly in industrial areas and around large cities, became cleaner and available for human and natural use.  In farm country, however, things got worse,  First, there are not many point sources in rural areas. Second, the CWA exempted “agricultural stormwater runoff” from the definition of point sources.  Third, the last decades have seen farm fields converted to factory fields, as agriculture became ever more intensive.  Runoff from farm fields and  large animal feeding systems combined with the drainage of vast acreages of wetlands and plowing-up of native grasses have led to the deeply polluted streams now associated with most rivers in farm country.

Without point source controls, we are forced to look to WQS and the 2017-2018 Triennial Review as our principal recourse,  It will take a broad-based and informed citizen effort to push our state toward the adoption of meaningful enforcement methods.

https://www.sierraclub.org/south-dakota/renewable-energy

South Dakota Sierra Club Living River Group Member John Davidson prepared a standard knowledge document about the Clean Water Act. This is a must know for citizens who use and consume water. Also for those who want to be armed with knowledge of how to ask for and what to look for in clean water regulations. Please take a moment to catch up on the info.

Quick links to Federal and State Government Efforts:

South Dakota Department of Enviorment & Natural Resources.

Enviormental Protection Agency

SDSU Extension

POINTS ON THE CLEAN WATER ACT OF 1972 AND WETLANDS

Introduction: With the 1972 Clean Water Act (CWA), Congress dramatically changed the course of water pollution control in the U.S. by adopting strong goals and a new implementation strategy focused on limiting pollutants AT THEIR SOURCE.

• The CWA states that the objective is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

• The words “restore and maintain” and “integrity” are key to understanding the CWA.  They form the foundation for finding Congressional intent to support a “nondegradation policy.”

• Equally important national goals stated in the CWA are: (1) “discharge of pollutants into navigable waters be eliminated by 1985;” (2) “wherever attainable, an interim goal of water quality which provides for the protectioin and propogation of fish, shellfish, and wildlife, and provides for for recreation in and on the water;” and (3) “the discharge of toxic pollutants in toxic amounts is prohibited.”

• Section 502(7) of the CWA expressly defines “navigable waters” as “the waters of the United States.”  This is the key to federal jurisdiction.

• Section 301(a) states that “[e]xcept as in compliance with” certain enumerated sections of the CWA, “discharge of any pollutant by any person shall be unlawful.” This precise phrase was in the draft CWA from the first days.

• Thus the CWA prohibits ALL discharges of pollutants unless the discharge first satisfies the “certain enumerated sections.”

• Section 502(12)  defines “discharge of a pollutant” to mean “(A) any addition of any pollutant to navigable waters from any point source, . . . “

• The words “point source” and “pollutant” are defined with specificity in the CWA.

• Discharges of pollutants are to be controlled by a permit program known as the National Pollutant Discharge Elimination System (NPDES) which requires pollution reduction by the best available control technologies.  These are “Section 402 permits.”

• The CWA represented a dramatic change from prior regulatory efforts, which had focused solely on protecting the ambient quality of the receiving waters, not the quality of the discharges into such waters.  Under the CWA, Congress intended for both forms of regulation to be utilized and interconnected.

WATER QUALITY STANDARDS — THE BASIC OUTLINE

The Clean Water Act of 1972 (CWA) takes a two-step approach to restoring water quality. The first step is to use technology-based controls to achieve effluent-based limitations on discharges from individual point sources.  The second step calls for the creation of ambient water quality standards (WQS) which serve as a backstop when controls imposed on point sources are not enough.  States create WQS by setting a designated use for each water body and the specific water quality standards (“criteria”) needed to protect all designated uses.  When a water body is found to be in violation of WQS (“impaired”), the CWA requires the establishment of an enforceable, comprehensive, pollution reduction strategy.

Point Source Controls  vs. Ambient Standards  (WQS).

The underlying debate is between competing approaches:  Are we protecting the environment, or simply managing it for our use and consumption?

The theory of ambient  water quality standards rests squarely on consumption and human use, reflecting an idea that water is meant to be used, just like any other natural resource, and one legitimate function is the assimilation and carriage of waste.  So, WQS identify the level of waste in water that is acceptable to state and local authorities, and try to abate those discharges that cause the WQS to be exceeded. This approach introduces a sharp tension with the purpose of the CWA, . . . that waters should be clean.

WQS Did Not Work.

Prior to 1972, WQS were tried as the primary pollution control system; they failed completely.

Why did they fail?  First, enforcement against individual polluters is almost impossible under the straight WQS approach because the polluter can deny that its discharges caused the water to “cross the line” of pollution acceptability; each polluter can blame the other.  Second, the states set the WQS at astonishingly low levels, and simply failed to develop plans for implementation and enforcement.

The 1972 CWA

By 1972, the Nation’s waters were in wretched condition; the “human use” approach of WQS had failed.  In response, the new law adopted a new ethical premise, that water shuld simply be clean.  The key provision was the imposition of technology-based effluent limitations on every discharge from a “point source,”  regardless of the quality of receiving waters.  Each such point source is subject t an individual permit.

The CWA Kept the WQS Approach As A Safety-Net Back-up To Point Source Controls.

How WQS Are Supposed To Work

The WQS are intended to function in two ways. First, as a measure of performance, the WQS are expected to establish the maximum level of pollution allowable in a particular waterway. Second, the WQS are also intended as an avenue of legal action against polluters.  If the wastes discharged by polluters reduce water quality below the WQS, legal action may be initiated against polluters.

It has become apparent that WQS need to play a more direct role in pollution control.  This is because of the substantial improvements still needed in the quality of our waters, and the likelihood that in many waters, the application of point source, end-of-the-pipe, controls are not enough to protect water.

Purpose of WQS

• WQS are to protect the public health or welfare, enhance the quality of water and serve the purposes of the CWA.  40 CFR Sec. 131.3(h)

• The purposes of the CWA are to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”  33USCA Sec.1252(a).

• “[I]t is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish and wildlife and provides for recreation inand on the water be achieved. . . . .”  33 USCA Sec. 1252(a)(2)

• “[I]t is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of the [CWA] to be met through the control of both point and nonpoint sources of pollution.”  33 USCA  Sec. 1251(7)

WQS:  Designation of Use 

• Each state must specify appropriate uses to be achieved and protected.  40 CFR Sec 131.10(a)

• “In no case shall a state adopt waste transport or waste assimilation as a designated use for any water. . . . “  40 CFR Sec. 131.10(a)  [The solution to pollution is not dilution]

• “At a minimum, uses are deemed attainable if they can be achieved by the imposition of effluent limits required [for point source discharges] and cost-effective and reasonable best management practices for nonpoint source controls.”  40 CFR Sec. 131.10(d)

WQS:  Designation of “Criteria”

• Criteria are elements of WQS “expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports a particular use,:  40 CFR Sec. 131.3(b)

• A narrative WQS is a descriptive standard that describes impairments ; for example, “waters shall not be degraded in any material manner” or show “undesirable slime growths or aquatic plants” or “harmful pesticides or other residues.”

• A numeric WQS is quantitative rather than descriptive and it measures the concentration of a pollutant in water associated with a beneficial use.  Numeric WQS are specific to each pollutant.  Numeric standards are favored under the CWA.  33 USCA  Sec. 131©(2)(B).

• Criteria “must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect the designated use.”  40 CFR Sec. 131.11(a)

• The U.S. E.P.A. is required to publish s-called “304(a)” criteria.  These  are based on the “latest scientific information on the relationship that the effect of a constituent concentration has on particular aquatic species and/or human health.”  The idea is that states and citizens will use this information to revise and improve state criteria from time-to-time.

• State criteria must protect designated sues, and “must be based on sound scientific rationale.”

• State criteria should be based on 304(a) guidelines.  40 CFR Sec. 131.11(b)

WQS:  Periodic or Triennial Review and Revision

• “At least” every three years, the state “shall . . . hold public hearings for the purpose of of reviewing applicable [WQS] and, as, appropriate, modifying and adopting standards.”  40 CFR Sec. 131.20

• The result of the review shall be submitted to USEPA for approval or disapproval.  40 CFR Sec 131.20(c)

• At any time, or as part of the Triennial Review process, citizens or citizen groups may request that the state revise WQS use and/or criteria designations, and present testimony, including sound scientific justification.

Waters of Outstanding Ecological or Recreational Significance.

• “When high quality waters constitute an Outstanding National Resource, such as waters of National and State parks and wildlife refuges and waters of recreational or ecological significance, that water quality shall be maintained and protected.”  40 CFR Sec. 131.12(a))3)

• Citizens or citizen groups may petition the state at any time to designate a water body as an “Outstanding  National or State Resource” at any time or as part of a Triennial Review.

WQS: Antidegradation Policy

• The state must adopt an antidegradation policy that, at a minimum, is consistent with existing instream water uses and the level of water quality necessary to maintain and protect existing designated uses.  40 CFR Sec. 131.12

• Compliance with the antidegradation policy can be the subject of a periodic or Triennial Review of WQS.

WQS and Applications for New Point Source Discharge Permits

• The CWA states that effluent limitations in point source discharge permits are to include “any more stringent limitations including those necessary to meet [WQS], . . . “  33 USCA Sec. 301(b)(1)(c)

• Section 301 (b)(1)(c) of the CWA expressly identifies the achievement of state water quality standards as one of the Act’s central objectives.”  U.S. Supreme Court in Okla. vs. Ark.

• There is not a complete ban on point source discharges into waterways that violate WQS. U.S. Supreme Court in Okla. vs. Ark.  40 CFR Sec. 122.4(d)

• “The [CWA] does, however, contain provisions designed to remedy existing water quality violations and to allocate the burden of reducing undesirable discharges between existing sources and new sources.”  U.S. Supreme Court in Okla. vs. Ark., citing 33 USC  Sec. 303 (d)  --  the TMDL Section.

303(d):  When Point Source Permits and Water Quality Standards Are Not Enough

• The CWA clearly anticipated that there will be situations where point source controls and WQS together are insufficient, and sets out a clear set of statutory “next steps.”  It is here that we meet Total Maximum Daily Loads (TMDLs).

• Section 303(d) requires the states to submit to the US EPA a list of all bodies of water in which effluent limitations and technology-based point source controls are insufficient to meet WQS.  These are known as “water quality limited segments.”  40 CFR Sec. 131.3(h).  The effect is to designate waters for which both increased point source and nonpoint source limitations will be necessary.

• It is for these waters that the state must establish TMDLs.

• TMDLs are an essential informational tool.

• The CWA requires the drafter of TMDLs to consider nonpoint source pollution.

• The TMDL must also include a specific timeline within which pollution is to be eliminated. 792 F.3d 281, 302 (2015)

• The TMDL will allocate the pollution load between point and nonpoint sources.

• pollution reduction plans that do create enforceable rights and obligations.

• For point sources, the load will result in increased limits on allowable discharges.

• For nonpoint sources, states must develop specific, enforceable implementation plans, which require US EPA approval.  Bravos vs. Green, 306 F. Supp.2d 48, 56 (DDC 2004).  The plan lays out how the state intends to meet its pollution allocation under the TMDLs.

The Implementation Plans:  Water Quality Planning, Using TMDLs.

• TMDLs break down into several parts.

• First, there is “Loading Capacity.” This is the greatest amount of pollution loading that a water can receive without violating WQS. 40 CFR Sec. 130.2(f)

• Second, there is “Load Allocation.”  (LA).  This is the portion of a receiving water’s Loading Capacity that is attributed either to one of its existing or future nonpoint sources of pollution.  Natural and human-created source loads are distinguished where possible. 40 CFR Sec. 130.2(g)

• Third, there is “Wasteload Allocation” (WLA).  This is the portion of a stream’s Loading Capacity that is allocated to one of its existing or future point sources.  40 CFR Sec. 130.2(h).

• Thus, a TMDL is the sum of the individual WLAs and Las plus natural background.  40 CFR 130.3(i)

SO, WHAT COMES AFTER THE TMDLs?

A water body is designated “impaired,” meaning that it violates WS.  The state then develops a TMDL study.

WHAT NEXT?  If there is no mandatory “next step,” then the situation reverts to the pre-1972 CWA, when our rivers and lakes were abandoned to the purpose of waste disposal alone!

Implementation is where all environmental laws live or die.

In what time frame and by what mechanism are TMDLs to be carried forward toward clean water?

• The state is required to maintain a continuing planning process, as required by 33 USCA Sec. 303 (e)(3)(A)-(H)

• The plan must include “[t]he process for establishing and assuring adequate implementation of new or revised WQS, including schedules of compliance under Sec. 303 ©.  40 CFR 130.5(b)(6)

• The resulting “Water Quality Management Plan” (WQMP) must include TMDLs for both point and nonpoint sources.  40 CFR Sec. 130.6

• The Plan (CPP) must be submitted to  US EPA for approval or disapproval.  33 USCA Sec. 303€(1)&(2)

The question then is whether, at this point, the CWA has run its string.

• Is implementation of the Plan (CPP) entirely discretionary with the state?

• OR, must the Plan (CPP) itself include the means of its own implementation in order to receive US EPA approval?

• If the Plan is inadequate, may US EPA reject it, and promulgate its own Plan and TMDL?

• “TMDLs are not self-executing but they serve as the cornerstone for pollution reduction plans that do create enforceable rights and obligations.” Amer. Farm Bureau Federation vs. U.S.E.P.A., 792 F.3d 281 (3d Cir. 2015).

• But, Then What?

NONPOINT SOURCE POLLUTION

As to point sources, the CPP can impose additional specific limits on discharges.  But what about nonpoint sources?

Quoting a leading commentator:  “[N]onpoint source pollution has become the dominant water quality problem in the United States, dwarfing all other sources by volume and, in conventional contaminants, by far the leading cause of nonattainment for rivers, lakes and estuaries alike.  It is no secret to any observer of the CWA that the primary reason for the mushrooming problem is the fact that while other sources have been abated through required controls and their enforcement, no comparable controls have been applied to agricultural, silvicultural and the rest of the nonpoint world..”  (Oliver Houck)

With TMDLs and CPPs, the nonpoint world, especially BigAg and the Farm Bureau, resist.

Nutrient Pollution :  The Challenge

• In August, 2010, US EPA distributed a “Public Discussion Draft” titled Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water.  In that document is the following:

“Over the last 30 years, stressors have shifted, . . . . [N]utrient pollution, excess sedimentation, and degradation of shoreline vegetation affects upwards of 50 percent of our lakes and streams. In addition, recent National Water Quality Inventories have documented pathogens as a leading cause of river and stream impairments.  Sources of these stressors vary regionally, but the main national sources of water degradation are: agriculture, stormwater runoff, habitat, hydrology and landscape modifications, municipal wastewater and air deposition.  EPA’s strategy must now meet these shifting needs and priorities.”

• Nutrient pollution is a top cause of water quality impairment and is a basis for over 14,000 water segments listed as impaired.  Over two million acres of lakes and reservoirs fail to meet WQS due to excess nutrients.  All of this has bee studied and documented repeatedly.  As bad as the BP oil spill in the Gulf has been, for that ecosystem, the real threat to the Gulf over time remains Midwest agriculture.

• South Dakota and North Dakota do not even list criteria for nutrient pollution, so they are not even included in the statistics, although we know that our streams are laden with nutrients.

• Citizens, cities, and downstream states can petition SD DENR to draft and promulgate WQS criteria for nutrient pollutants.  This can occur at any time, so long as it is supported by sound scientific rationale.  

• Recent data and suggestions for proposed criteria are at www2.epa.gov/nutrient-policy-data

• South Dakota's Department of Enviorment and Natural Resources Nonpoint Source Program Managment Plan http://denr.sd.gov/dfta/wp/documents/NPSMgmtPlan14.pdf