Clean Water Act Research Articles

Science at the boundaries: scientific support for the Clean Water Rule

AbstractThe US Environmental Protection Agency (EPA) and US Army Corps of Engineers have promulgated a definitional rule to clarify the scope of “waters of the United States” protected under the Clean Water Act (CWA). The Clean Water Rule, published in June 2015, defines 8 categories of waters for jurisdiction and expressly excludes certain features from jurisdiction, based on law, science, public input, and 40+ y of experience implementing the CWA. It also defines terms used in regulation including, for the first time, “tributary,” “neighboring,” and “significant nexus”. Much of the scientific basis for this rule is contained in a report titled “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” developed by EPA’s Office of Research and Development to inform the rulemaking process. As a scientific review, the report does not consider or set forth legal standards for CWA jurisdiction. Rather, it summarizes current scientific understanding of the c...

An Overview of Research Supporting Wetland and Ordinary High Water Mark Delineation

Over the past 25 years, researchers at the U.S. Army Corps of Engineers (USACE) Engineer Research and Development Center (ERDC) have addressed a wide range of technical issues pertaining to identification and delineation of aquatic resources under §404 of the Clean Water Act (CWA) (US Congress 1977). Research focuses on topics related to wetland and stream delineation, such as identifying ecological relationships between hydrophytic vegetation, hydric soil, and wetland hydrologic conditions, developing and maintaining an accurate and robust National Wetland Plant List (NWPL), and developing ordinary high water mark (OHWM) delineation methods and technical guidance for rivers and streams. NWPL wetland indicator status ratings of plant species, along with soil and hydrologic conditions, are used to define federal jurisdictional limits in wetlands (33 U.S.C. 1344), while the OHWM defines the lateral extent of federal jurisdiction in non-tidal Water of the U.S., in the absence of adjacent wetlands.

A Technology-Based Approach to Water Conservation in California

I. INTRODUCTION II. CALIFORNIA WATER LAW A. Riparianism B. Prior-Appropriation III. CALIFORNIA'S APPROACHES TO EFFICIENT WATER USE IV. INTRODUCTION TO A TECHNOLOGY-BASED APPROACH A. Clean Water Act Approach B. Clean Air Act Approach C. The Clean Air Act Was Successful V. TECHNOLOGY-BASED STANDARDS AS APPLIED TO WATER CONSERVATION VI. IMPLEMENTING AND ENFORCING THE STANDARDS A. Implementation B. Enforcement VII. OPPOSITION TO A TECHNOLOGY-BASED STANDARD VIII. CONCLUSION I. Introduction In the coming decades, as already seen today, global climate change will impact hydrologic balances and water availability. (1) Among the scientific community, [t]here is a relatively firm consensus that arid and semiarid regions risk the net loss of stream runoff as winter snowpack diminishes and spring and summer evaporation increases each year. (2) As water becomes increasingly scarce, water use and management will have to adapt to these changing conditions. California water law is based on a combination of riparianism and prior-appropriation. These two doctrines assume regional water balances will remain relatively constant over time, but such an assumption is no longer viable. (3) As water becomes less available, water managers will have to change their assumptions and policies to better meet the needs of their water users. between senior users, junior users, and future claimants, as well as between consumptive and non-consumptive uses (such as environmental protection), will only increase. (4) In an effort to resolve these conflicts in uses and users, state policy must actively find new conservation methods. To date, most water conservation policy in California is voluntary, and the combination of riparianism and prior-appropriation does little to encourage conservation. This paper argues that California should take a new approach to water conservation based on the command-and-control pollution laws of the 1970s. California should adopt a technology-based approach similar to the clean Air Act (CAA) and Clean Water Act (CWA) to set new standards for water permits. A technology-based approach would require users to either adopt more efficient technology or use less water, thereby increasing conservation. It is also a flexible approach that typically considers cost-benefit analysis at some point in the process for determining the standards. The first section of this paper describes how California's system of riparianism and prior-appropriation functions, and explains why the system does not encourage conservation. The paper then looks at some of the conservation methods that California employs, ultimately concluding that those conservation policies are not adequate to deal with increasing water scarcity. The next section describes how technology-based standards work and how a technology-based standard can be applied to water conservation. Lastly, this paper addresses how a technology-based standard could be implemented and enforced, as well as responds to the potential opposition that a bill or regulation would face. II. California Water Law A. Riparianism In California, riparian water rights entitle owners of land bordering a stream to receive the flow of the stream undiminished except by the common right of all to receive a share of the (5) Permissible uses of water were essentially limited to fulfilling domestic needs, such as withdrawing sufficient water for drinking, bathing, and watering animals. (6) States adopted the riparian natural flow doctrine from England, the purpose of which was to allow all landowners along a river or lake a sufficient amount of water for their daily needs. (7) The natural flow doctrine thereby limited use of water to ensure that each landowner along the river would receive a reasonable amount of water. …

EPA's Fracking Fluids Report Could Help Stop Negative State Moves

For much of the 20th century, domestic oil and gas development regulation was left up to the states. In doing so, this policy ensured that, depending on the state's specific interests, each could pass regulations that it deemed appropriate to protect the environment while simultaneously bolstering oil and gas production. Although management has primarily remained in the hands of the states, the federal government is still very involved in the industry, passing public health–oriented regulations such as the Safe Drinking Water Act (SDWA) and the Clean Water Act (CWA), and administering such regulatory bodies as the Occupational Safety and Health Administration (OSHA) to oversee production and recovery operations. For example, in constructing a well for the use of secondary recovery processes, oil and gas companies are subject to the CWA and oversight by OSHA, as well as Superfund regulations and the SDWA in the production phase.

Enforcing the Clean Water Act: The effect of state-level corruption on compliance

This paper uses an event study to examine the transition from federal to state management of the Clean Water Act (CWA). I find that, overall, the transition from federal to state control has little effect on facility compliance, measured by the violation rate. However, states with a long run prevalence of corruption see a large decrease in the violation rate after authorization relative to states without corruption. Alternative specifications support these findings. I explore whether the response to transition to state control differs across political ideology, GDP and income per capita, government size, environmental preferences and government management performance. None of these alternative state level characteristics seem to account for the observed difference.

Evaluation of Variability in Response to the NPDES Phase II Stormwater Program in Virginia

AbstractAuthorities of municipal separate storm sewer systems (MS4s) in small urbanized areas (population less than 100,000) are required to implement stormwater control measures (SCMs) to mitigate and reduce the impacts of urbanization on stormwater runoff under Phase II of the National Pollutant Discharge Elimination System’s (NPDES) stormwater program. This 16–year-old policy has been challenged in its effectiveness in maintaining or improving water quality, but reviews are scarce because of the policy’s subjective requirements, and because it governs MS4s across a wide variety of characteristics, objectives, and institutional capacity. This research models SCM selection as a function of these differences, thereby systematically evaluating the policy’s outcome in its constituents. The results show that certain characteristics of an MS4 community significantly affect the selection of SCMs, suggesting that regulations may need to be refined to address distinct groups of MS4s. The results also reveal inef...

Risk Management in Environmental Compliance: “What Happens When Your Operation Is Being Constructed?”

INTRODUCTION Nearly forty years after the Clean Water Act (CWA) was passed, we’ve come a long way in our understanding of the strength and fragility of our water resources, and the impact that our actions or inactions can have on them. Though the regulatory systems are in place and the best management practices (BMPs) are plentiful, successfully managing risk in environmental compliance remains a constant concern. Fortunately, the rules to environmental compliance are simple: half of it is paperwork and the other half is maintenance. If you take an organized and balanced approach to compliance, you should keep risk at bay, and avoid enforcement action. However, remember that no matter how thoroughly you prepare for a construction project, you may still encounter unexpected situations requiring environmental knowledge and understanding. As you start to plan your operation, you should take the time to stop and consider the risk associated with your project. The Environmental Protection Agency (EPA) consider...

Reducing hypoxia in the Gulf of Mexico: Reimagining a more resilient agricultural landscape in the Mississippi River Watershed

In 1972 President Nixon signed the Clean Water Act (CWA) into law, making clean water a public right and establishing a goal that the nation's waters should be both “fishable and swimmable.” It is considered by many to be the most important and effective environmental law ever passed. Before the CWA, two-thirds of US waterways were considered unsafe for fishing and swimming, and waste from households, municipalities, factories and power plants, including sewage, livestock processing, waste oil, and chemicals, flowed untreated into rivers, streams, and lakes. The law reduced the discharge of sewage and other industrial point source pollution into waterways, but most agricultural nonpoint source pollution, the greatest source of water pollution today, was exempted. The agriculture exemption, called “one of the last, great intractable problems of environmental law,” results in an inconsistent system for addressing water pollution, with regulation for the majority of urban sources and a voluntary, incentive-based system for much of agriculture (Laitos and Ruckriegle 2013).

Validation of Rapid Assessment Methods to Determine Streamflow Duration Classes in the Pacific Northwest, USA

United States Supreme Court rulings have created uncertainty regarding U.S. Clean Water Act (CWA) authority over certain waters, and established new data and analytical requirements for determining CWA jurisdiction. Thus, rapid assessment methods are needed that can differentiate between ephemeral, intermittent, and perennial streams. We report on the validation of several methods. The first (Interim Method) was developed through best professional judgment (BPJ); an alternative (Revised Method) resulted from statistical analysis. We tested the Interim Method on 178 study reaches in Oregon, and constructed the Revised Method based on statistical analysis of the Oregon data. Next, we evaluated the regional applicability of the methods on 86 study reaches across a variety of hydrologic landscapes in Washington and Idaho. During the second phase, we also compared the Revised Method with a similar approach (Combined Method) based on combined field data from Oregon, Washington, and Idaho. We further compared field-based methods with a GIS-based approach (GIS Method) that used the National Hydrography Dataset and a synthetic stream network. Evaluations of all methods compared results with actual streamflow duration classes. The Revised Method correctly determined known streamflow duration 83.9% of the time, versus 62.3% accuracy of the Interim Method and 43.6% accuracy for the GIS-based approach. The Combined Method did not significantly outperform the Revised Method. Analysis showed biological indicators most accurately discriminate streamflow duration classes. While BPJ established a testable hypothesis, this study illustrates the importance of quantitative field testing of rapid assessment methods. Results support a consistent method applicable across the Pacific Northwest.

The Effluent Limitations Controversy: Will Careless Draftsmanship Foil the Objectives of the Federal Water Pollution Control Act Amendments of 1972

The Effluent Limitations Controversy: Will Careless Draftsmanship Foil the Objectives of the Federal Water Pollution Control Act Amendments of 1972

The Clean Water Rule: defining the scope of the Clean Water Act

What waters are subject to federal regulatory protection by the US Clean Water Act (CWA)? Over the 43 y since passage of the CWA (formally the 1972 Federal Water Pollution Control Act [33 U.S.C. §§1251–1387]) little clarity and less consensus has emerged regarding this fundamental question. However, on 29 June 2015, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (ACE) published the Clean Water Rule (https://federalregister.gov/a/2015-13435) to clarify which waters are subject to CWA protection. Publication of the Clean Water Rule created immediate, passionate political debates, largely focused on whether EPA and the ACE overstepped their jurisdiction. Within 5 d of publication of the rule, attorneys general from 31 states planned to ask EPA to delay implementation of the Clean Water Rule for at least 9 mo (http://www.courthousenews.com/2015 /08/03/thirty-one-states-fight-clean-water-rule.htm). As of 10 August 2015, 13 states had asked a federal judge to block the rule (http://www.mercurynews.com/breaking -news/ci_28615224/13-states-want-judge-block-new-federal -water). A Google® search on 13 August 2015 based on the keywords “Clean Water Rule” and “lawsuits” produced 22,500 results. As of 8 September, when this paper went to press, the rule was in effect in 37 states, and was stayed by preliminary injunction in 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming) (http://www2.epa.gov/cleanwaterrule/clean-water -rule-litigation-statement). In bright contrast to the well publicized, negative political reaction, the aquatic resource science and management communities appear to largely support the rule (e.g., http://www.freshwater-science.org/Policy /files/SFS_WOTUS_EPA-HQ-OW-2011-0880.pdf).

Performance of a Pilot‐Scale Nitrifying Trickling Filter Treating Municipal Aerated Lagoon Effluent

ABSTRACT: Colfax, WA, operates an aerated lagoon to achieve compliance with its National Pollutant Discharge Elimination System (NPDES) permit, which currently requires biochemical oxygen demand (BOD) and total suspended solids (TSS) removal. However, ammonia removal may soon be required, and Colfax is considering a nitrifying trickling filter (NTF) that would allow them to also maintain the lagoons. To obtain data from which to ultimately design a full‐scale system, a four‐year NTF pilot study was performed. Results demonstrated that an NTF would be an effective, reliable NH3 removal method and could produce effluent NH3 concentrations < 1.0 mg/L. NTF performance was characterized by zero‐ and first‐order kinetics; zero‐order rates correlated with influent NH3 concentrations and mass load. Utilizing data from these investigations it was determined that the pilot NTF could be reduced by 19%, which demonstrates the value of pilot testing. Finally, pilot data was evaluated to provide a data set that will be useful to engineers designing full‐scale NTFs.

Stormwater management the American way: why no policy transfer?

From the 1940s until the 1980s the federal government gradually extended its authority over the structure of the American stormwater management system. The goal was to improve the water quality of the nation’s waterways by regulating the pollution loads entering the system, primarily through the use of gray infrastructure. However during the1980s the Environmental Protection Agency (EPA) began to explore new approaches toward the regulation of stormwater pollution. Instead of focusing only on gray mechanisms, the EPA began developing and promoting the use of low impact development (LID) techniques as an element municipal governments could use to achieve their total maxim daily load of pollutants allowable under the National Pollutant Discharge Elimination System permit system. In light of the incentive offered by the EPA for the use of LID in the management of stormwater, it should be expected to provide a perfect area to observe policy transfer between federal, state and local governments; but it does not. This article will establish why the EPA began promoting a green approach to stormwater management and why this has not led to a widespread transfer of best management practices in the ways the literatures associated with federalism and policy transfer would suggest.

Fear and Loathing in Colorado: Invoking the Supreme Court's State-Controversy Jurisdiction to Challenge the Marijuana-Legalization Experiment

In this Article, we assert that States may invoke the Supreme Court’s original jurisdiction to challenge marijuana legalization in Colorado and other jurisdictions. The Constitution endows the Court with jurisdiction to adjudicate transboundary nuisance disputes between States. Such suits once comprised a relatively common part of the Court’s docket. The number of these actions fell dramatically following passage of the Clean Air and Water Acts, which relieved the Court of its historic role of establishing and enforcing interstate environmental standards. Colorado’s introduction of marijuana into interstate commerce has reawakened this long-dormant body of constitutional law. Like downstream industrial pollution, the transboundary externalities resulting from Colorado’s introduction of marijuana into interstate commerce fall within the ambit of the Court’s original jurisdiction. In making this argument, we distinguish our theory from the Complaint lodged by Nebraska and Oklahoma with the Supreme Court. Rather than premising their claim on the Court’s transboundary nuisance jurisprudence, Nebraska and Oklahoma seek to “enforce...the Supremacy Clause, Article VI of the U.S. Constitution.” They contend that Colorado’s venture violates the federal Controlled Substances Act and should be enjoined. Their federal-supremacy claim suffers from a myriad of fatal deficiencies: they lack standing to represent the federal government’s interests, they have not plead injury with the particularity required to invoke the Court’s original jurisdiction, and their prayer for injunctive relief runs afoul of the anti-commandeering doctrine. In contrast, we assert that the Court should award damages to a prevailing State, using the Coase Theorem as its guide. The Theorem states that if transaction costs are eliminated “parties will negotiate the efficient solution to private nuisance problems.” Real-world application of the theorem is attained by imposing legal rules that best approximate the way disputes would be resolved in a transaction-cost-free environment. Such an outcome is best effectuated by a rule charging the nuisance with the damages it causes. If compelling a polluter to internalize the cost of his pollution drives him out of business, then his enterprise was not the most economically efficient use of the property and his interests should yield to that of his neighbors. In contrast, if the polluter assumes responsibility for all the costs of his venture and still realizes a sufficient profit to stay in business, then his use of the land is most efficient. If this remedy is applied, the market will determine the success or failure of Colorado’s venture and will serve as a guide to other states in deciding whether it is worth emulating.

ASSESSING THE FRAMEWORK OF POLICY OUTCOMES: THE CASE OF THE U.S. CLEAN AIR ACT AND CLEAN WATER ACT

The Clean Air Act (CAA) and Clean Water Act (CWA) have been the lynchpins of the U.S. environmental policy for the last half century. Under both acts the federal government sets standards and the states implement, the outcomes of the CAA and CWA have not been the same however. While criteria air pollutants across the nation have been reduced or maintained under the management control strategies of the CAA, far less is known about the effects the CWA has had on water quality, even though, most agree water quality has improved since its implementation. These acts are built on similar frameworks, but the real difference lies on the embedded identification of assessment criteria. The CAA creates a rigid framework for the consistent identification and monitoring of air pollutants, while the CWA relies on a much more flexible system that varies over space and time. Thus, it is the embedded environmental assessment criteria within these acts that have led to different outcomes for similar policies.

The Role of NPDES Permits in EPA’s Integrated Planning Effort

The Role of NPDES Permits in EPA’s Integrated Planning Effort

RISK MANAGEMENT IN ENVIRONMENTAL COMPLIANCE: WHAT HAPPENS WHEN YOUR OPERATION IS BEING CONSTRUCTED?

INTRODUCTION Nearly forty years after the Clean Water Act (CWA) was passed, we’ve come a long way in our understanding of the strength and fragility of our water resources, and the impact that our actions or inactions can have on them. Though the regulatory systems are in place and the best management practices (BMPs) are plentiful, successfully managing risk in environmental compliance remains a constant concern. Fortunately, the rules to environmental compliance are simple: half of it is paperwork and the other half is maintenance. If you take an organized and balanced approach to compliance, you should keep risk at bay, and avoid enforcement action. However, remember that no matter how thoroughly you prepare for a construction project, you may still encounter unexpected situations requiring environmental knowledge and understanding. As you start to plan your operation, you should take the time to stop and consider the risk associated with your project. The Environmental Protection Agency (EPA) consider...

Monitoring the aquatic toxicity of mosquito vector control spray pesticides to freshwater receiving waters

Pesticides are applied to state and local waterways in California to control insects such as mosquitoes, which are known to serve as a vector for West Nile Virus infection of humans. The California State Water Resources Control Board adopted a National Pollutant Discharge Elimination System General Permit to address the discharge to waters of the United States of pesticides resulting from adult and larval mosquito control. Because pesticides used in spray activities have the potential to cause toxicity to nontarget organisms in receiving waters, the current study was designed to determine whether toxicity testing provides additional, useful environmental risk information beyond chemical analysis in monitoring spray pesticide applications. Monitoring included a combination of aquatic toxicity tests and chemical analyses of receiving waters from agricultural, urban, and wetland habitats. The active ingredients monitored included the organophosphate pesticides malathion and naled, the pyrethroid pesticides etofenprox, permethrin, and sumithrin, pyrethrins, and piperonyl butoxide (PBO). Approximately 15% of the postapplication water samples were significantly toxic. Toxicity of half of these samples was attributed to the naled breakdown product dichlorvos. Toxicity of 2 other water samples likely occurred when PBO synergized the effects of pyrethroid pesticides that were likely present in the receiving system. Four of 43 postapplication sediment samples were significantly more toxic than their corresponding pre-application samples, but none of the observed toxicity was attributed to the application events. These results indicate that many of the spray pesticides used for adult mosquito control do not pose significant acute toxicity risk to invertebrates in receiving systems. In the case of naled in water, analysis of only the active ingredient underestimated potential impacts to the receiving system, because toxicity was attributed to the breakdown product, dichlorvos. Toxicity testing can provide useful risk information about unidentified, unmeasured toxicants or mixtures of toxicants. In this case, toxicity testing provided information that could lead to the inclusion of dichlorvos monitoring as a permit requirement.

An urgent need for an EPA standard for disposal of coal ash

EPA, the White House, and electric utilities are stalled in a struggle over a proposed new rule on coal ash disposal. Although this rule is long overdue, EPA now stands on the cusp of bringing forward a landmark decision that could benefit aquatic resources in the USA for decades to come and also set an important regulatory leadership example for the international community to follow. However, multi-million dollar wildlife losses are continuing to pile up as things stall in Washington. In this commentary I use a newly reported example, Wildlife Damage Case 23, to further illustrate serious flaws in the National Pollutant Discharge Elimination System that EPA's new rule can address. Case 23 provides additional impetus for EPA and the White House to move swiftly and decisively to end surface impoundment disposal of coal ash and the associated toxic impacts to wildlife.

A Point Source of a Different Color: Identifying a Gap in United States Regulatory Policy for “Green” CSO Treatment Using Constructed Wetlands

Up to 850 billion gallons of untreated combined sewer overflow (CSO) is discharged into waters of the United States each year. Recent changes in CSO management policy support green infrastructure (GI) technologies as “front of the pipe” approaches to discharge mitigation by detention/reduction of urban stormwater runoff. Constructed wetlands for CSO treatment have been considered among suites of GI solutions. However, these wetlands differ fundamentally from other GI technologies in that they are “end of the pipe” treatment systems that discharge from a point source, and are therefore regulated in the U.S. under the National Pollution Discharge Elimination System (NPDES). We use a comparative regulatory analysis to examine the U.S. policy framework for CSO treatment wetlands. We find in all cases that permitting authorities have used best professional judgment to determine effluent limits and compliance monitoring requirements, referencing technology and water quality-based standards originally developed for traditional “grey” treatment systems. A qualitative comparison with Europe shows less stringent regulatory requirements, perhaps due to institutionalized design parameters. We recommend that permitting authorities develop technical guidance documents for evaluation of “green” CSO treatment systems that account for their unique operational concerns and benefits with respect to sustainable development.