Clean Water Advocacy - Newsroom - AMSA in the News
Agency to Continue Focus on Monitoring, Wetlands, Restoration of Impaired Waters
Improved monitoring, the conservation of wetlands, and restoring impaired
watersheds will continue to be the focus of the Environmental Protection
Agency's water office in 2005, according to the head of EPA's water programs.
Benjamin Grumbles, the EPA assistant administrator for water, said the agency
plans to follow through on the "500-day plan with a 5,000-day horizon" outlined
in early 2004 by EPA Administrator Mike Leavitt to describe the agency's goals
in the near term to achieve long-term results.
Meanwhile, the agency is considering guidance to address a number of areas,
including the total maximum daily loads program, the treatment of wastewater
during wet weather, and the application of pesticides to water bodies, Grumbles
said.
Blending
The agency published for comment in November 2003 draft guidance that would make
it easier for wastewater treatment plants to allow a portion of wet weather
flows to bypass the biological treatment process during wet weather and be
recombined with treated effluent before being discharged. This process, known as
blending, has been used for decades by treatment operators to prevent their
facilities from being overwhelmed during storms.
The EPA draft guidance would detail when facilities would be able to blend
without finding themselves in violation of the Clean Water Act, which explicitly
prohibits bypassing any part of the treatment process except in extreme
circumstances.
The agency received more than 98,000 comments on the draft.
Environmental organizations, public health advocates, and some states say EPA
should not issue the guidance because treatment plants would be able to blend
with impunity and not be forced to undertake the necessary upgrades to prevent
the facilities from being inundated.
Nancy Stoner, an attorney with the National Resources Defense Council, told BNA
Dec. 13 that if wastewater officials want to argue that they have been blending
for decades, she would argue that they have been doing so illegally, and EPA
should step up enforcement against them.
"EPA should enforce the existing law; they can only bypass when there is no
feasible alternative," Stoner said, adding that many view the draft guidance as
"complete reversal" of the Clean Water Act requirements established in the
1970s.
Wastewater treatment operators and other municipal officials have said EPA needs
to clarify its position on blending because some regions have recently begun to
prohibit it. Several cities sued the agency in July 2002 because three regions
issued guidance banning blending. The prohibition, they said, is not evenly
applied among the agency's regional offices and has no national regulation to
support it. Moreover, EPA headquarters has not tried to keep the regional
offices from implementing the prohibition on blending, the organizations said.
"It is absolutely critical that EPA clarify under what conditions blending is
allowed," Ken Kirk, executive director of the Association of Metropolitan
Sewerage Agencies (AMSA), said.
Stoner said the law already spells out when blending should be allowed. The
Clean Water Act prohibits bypasses of any portion of the treatment process
except in certain situations, such as to prevent the loss of life or in extreme
storms such as a hurricane, she said.
The U.S. District Court for the District of Columbia dismissed the cities'
lawsuit in November 2003, saying the agency had taken no formal action that
could be reviewed (Pennsylvania Municipal Authorities Association v. Horinko,
D.D.C., No. Civ. 02-01361, 11/20/03).
The Pennsylvania Municipal Authorities Association, the Tennessee Municipal
League, and the Little Rock Sanitary Sewer Committee appealed the district
court's decision in early 2004 to the U.S. Court of Appeals for the District of
Columbia.
John Hall, the attorney representing the municipal groups, said the cities put
the appeal on hold in August because EPA said it was going to issue a final
policy on blending. When that did not happen, he said, the cities went ahead
with the appeal, and oral arguments are scheduled for May 2005.
The cities filed their briefs Nov. 17, and EPA will respond by Feb. 4, 2005,
Hall said.
"If EPA issues a policy on blending, the case could go away," Hall said, adding
that the municipal organizations had some concerns about the draft that they
discussed with EPA and that they hoped would be resolved in the final policy, if
one is issued.
Grumbles would not say whether the agency is going to issue a final policy
saying no decision has been made. He did not rule out that the agency could
decide to undertake a rulemaking or do nothing at all.
"We recognize that blending is a long-standing practice, and we recognize the
real-world financial constraints on utilities if they could never blend,"
Grumbles said.
As the agency contemplates the policy, 16 senators, led by James Jeffords (I-Vt.),
the ranking member of the Senate Environment and Public Works Committee,
submitted a letter Dec. 20 saying blending should not be allowed.
"[W]e are concerned that EPA's proposed policy puts public health at risk
because it would allow more frequent use of blending and undo many of the public
health and environmental gains achieved under the Clean Water Act," the letter
from Jeffords and 15 Democrats said. "The main concern with the increased use of
blending is its effect on the presence of bacteria, viruses, and pathogens in
wastewater discharges."
Water Quality Criteria for Pathogens
Controlling water pollution from pathogens will be another major focus for the
agency in 2005, according to Geoffrey Grubbs, director of science and technology
in the EPA Office of Water.
The agency is required under the Beaches Environmental Assessment and Coastal
Health (BEACH) Act (Pub. L. No. 106-284) to promulgate water quality criteria
for pathogens for freshwater in inland states. Grubbs said the epidemiological
studies have been done, and the agency now needs to move forward with the
criteria.
The most recent pathogen criteria were done in 1986, and the agency was
criticized for relying on them in 2004 to develop water quality criteria for
bacteria in recreational waters of coastal and Great Lakes states because they
were considered too out of date and not based on the most recent scientific
information.
"We want to get the standards upgraded for inland beaches," Grubbs, who plans to
retire May 1, said.
Once the criteria are established, the agency will focus on getting states to
incorporate them into their water quality standards. Many states still use fecal
coliforms as indicators of safe levels of pathogens, he said. The agency has
been pushing a switch to the use of E. coli or enteroccoci as an indicator for
coastal recreational waters.
The BEACH Act was enacted in October 2000 and contained a number of significant
actions to make coastal and inland waterways safe for swimming by requiring
standards for pathogens. Many of the deadlines under that law, which amended the
Clean Water Act, were in 2004 and 2005.
Stoner said environmental activists plan to use the BEACH Act to push for
improvements in wastewater treatment, especially from publicly owned utilities.
"The BEACH Act is about pathogens," she said.
Infrastructure Funding
Part of the challenge for controlling pathogens and improving treatment involves
upgrading treatment plants and reducing sewer overflows, both of which cost
money.
This is one area where environmental activists and municipalities are finding
common ground. They are combining forces to push Congress for more funding, both
for the clean water and drinking water state revolving funds and for grants.
AMSA supports draft legislation that would create a trust fund financed largely
through a "bottle tax" on beverages. One municipal official said a bottle tax
would provide a steady and manageable revenue source, which is needed for a
successful trust fund. Beverage bottlers, more than other industrial water
users, depend on a clean source of drinking water, the official said. The draft
being circulated for discussion among environmental organizations,
municipalities, and wastewater treatment plant operators would authorize a $45
billion trust fund over five years that would include $3 billion annually in
grants and $2 billion in loans for clean water programs and $1.5 billion each
for grants and loans for drinking water programs.
State water officials view the proposal with skepticism, in part because a chunk
of the money would go through the state revolving fund (SRF) and may give states
less control on how it is spent. Moreover, they do not see the trust fund idea
as something that will be well received in the current 109th Congress.
AMSA's Kirk said the draft bill is a starting point and will focus attention on
the issue of funding and clean water.
"It's time to start broadening the horizon," he said, adding that the bill
attempts to address some of those issues and the impact on states.
State officials also want to make sure a trust fund, if one were enacted, would
allow for continued funding for nonpoint source pollution control programs and
other state water quality programs under Section 106 of the Clean Water Act.
"I think they have a lot of work to do on the trust fund," one state official
said.
Mark Pifher, director of water quality control for the Colorado Department of
Health and Environment, said state water officials have formed an SRF integrity
working group to document what the program has accomplished over the years in
terms of the projects constructed and the overall improvement in water quality.
A big priority, though, will be to get Congress to restore the funds cut from
the SRF program in the fiscal year 2005 budget, Kirk said. The program was cut
from $1.35 billion that had been appropriated annually to $1.10 billion.
EPA estimated an infrastructure funding gap of about $535 billion over 20 years.
Municipal organizations said they think the gap is higher and may increase
without more federal money.
Focus on Efficiency
The administration has opposed increased funding for infrastructure, preferring
to find "efficiencies" that can reduce treatment costs, Grumbles said. One
approach is through the agency's sustainable infrastructure initiative, which
Grumbles said covers improved facility management through an environmental
management system and improved asset management. The agency is also pushing
water conservation and water efficiency efforts.
The water office, he said, has been coordinating with the air office to develop
a Water Star program for water efficient appliances and fixtures modeled on the
Energy Star program aimed at energy conservation.
"These will help save not just water, but energy and costs," Grumbles said.
Voluntary initiatives, such as the Water Star program and other conservation
measures, will help close the gap, he said.
"We don't expect the gap to be closed overnight or even in one year," he said.
"We're committed to closing the infrastructure gap," Grumbles said. "It will be
a multi-year effort that will require innovation and a wider array of tools."
Stoner said the initiatives are helpful, but they are insufficient for closing
the gap.
"There may be greater efficiencies in the system, but it's not going to get us
where we want to be," she said.
Nutrient Criteria in States
Grubbs said his office will also continue its focus on getting the standards
program "shaped up everywhere." This will include a push to get states to adopt
"quantified numeric criteria" for nutrients in their standards programs.
"Different states in different places have different problems," Grubbs said of
the difficulty some have had in adopting these criteria. "It's hard."
The difficulty comes because criteria are intended to protect rivers, streams,
reservoirs, and bays, but nutrients act differently in each of these types of
environments, Grubbs said.
"The way nutrients work is hugely different from place to place, so it's very
data-intensive," he said. "Once you end up with quantified numbers, it's not
hard to figure out who has to do something about it, and you will get some
resistance."
To date, 26 states have adopted nutrient criteria, at least in part, into their
standards, and "a few" have completed the task, he said.
Stoner said NRDC and other organizations consider standards for nutrients a high
priority.
"We've met with EPA on the standards development process, and we want to push
them and make sure it happens," she said. "We want to see EPA and the states
adopt standards that are protective of waters, including those downstream [from
other states] and in the Gulf of Mexico."
Grubbs said the agency also will be working more with the Food and Drug
Administration to "align the science" behind issuing health advisories to
sensitive populations and people who subsist on fish. EPA and FDA combined to
issue advisories about consuming fish contaminated with mercury.
Grubbs said the two agencies are not considering any particular chemicals, but
they want to look at the "next generation of chemicals" that can be found in
fish and may pose a health threat to certain populations.
To accomplish this, he said, the agencies need to consider appropriate
"endpoints" and thresholds of a contaminant.
"The priority investment is to move beyond mercury," he said. "Between the two
agencies, we need to have the science lined up."
Improving Current TMDL Program
The subject of total maximum daily loads (TMDLs) and whether EPA should issue a
new rule to update the program has fallen by the wayside for many organizations
that have had a stake in it. State officials said they no longer are pushing for
a new rule.
"There's no interest in the TMDL rule," Pifher, Colorado's water quality control
director, said. He is the vice president of Association of State and Interstate
Water Pollution Control Administrators.
EPA officials said they will continue to focus on implementing the program that
currently operates under a 1992 regulation.
According to the agency's latest figures, 29,185 waters are listed as impaired
for multiple pollutants, with pathogens ranking at the top of the list, followed
by metals and sedimentation. That brings the total number of TMDLs needed to
53,747, of which 13,516 have been developed to date, the agency said.
Grumbles said the agency plans to "focus on the continued improvement of the
existing TMDL program" while looking to "innovative and collaborative approaches
that have a strong emphasis on water quality-based trading and alternatives to
TMDLs if we can ensure an appropriate accounting."
Alternatives to TMDLs Eyed
Alternatives may involve something as elaborate as the agreement signed by the
states surrounding the Chesapeake Bay to clean up that estuary by 2010. Under
the agreement signed in 2000, the states within the bay's watershed are
developing "tributary strategies" indicating how they intend to reduce the
amount of pollutants, mostly nutrients, entering the bay.
"The Chesapeake Bay is the perfect example of the type of situation where the
jurisdictions came up with an approach for tributary strategies and other
mechanisms as alternatives to TMDLs," Grumbles said.
However, most organizations involved in the Chesapeake restoration agree that
the current pace of activity will not achieve the 2010 goal.
Grumbles said the agreement provides flexibility to try an alternative to a
TMDL, but if that does not work, "that means we go forward with a TMDL or take a
hard look at what happened and work to revise the strategy and approach."
Fred Andes, whose Federal Water Quality Coalition represents industrial
dischargers, said TMDLs continue to be a big issue for industry.
"The challenge really is that if there is no rule, how can EPA and the states
make the program work better?" he said.
Meanwhile, state officials said they want the agency to issue guidance on
certain aspects of the program, revising how often they must submit their lists
of impaired waters to EPA. Once states list a river, stream, lake, or estuary as
impaired, they are required to develop TMDLs explaining how they will clean them
up. Currently, the lists are required every two years, and states would like to
see that changed to every four or five years, which would correspond with the
permitting cycle. National Pollutant Discharge Elimination System permits are
valid for five years.
Longer-Term NPDES Permits?
Roberta Savage, executive director of the Association of State and Interstate
Water Pollution Control Administrators, said state officials also support
changing the permitting cycle from five years to 10 years for some types of
permits. Specifically, lengthening the cycle should be an option in rivers and
lakes where there has been no change in the water quality or the level or types
of waste that is discharged to it, she said.
However, such a change would require an amendment to the law, and Savage
admitted that would not likely happen, especially in the 109th Congress.
EPA has been devoting a considerable amount of energy to analyzing and trying to
improve the NPDES permit program. A major milestone in the Permitting for
Environmental Results initiative, a key mechanism for accomplishing this
objective, was reached Dec. 15, 2004, when the agency posted comprehensive
profiles of the NPDES permitting program in 33 of the 45 states delegated to run
their programs.
The profiles contain information such as the number of major and minor
facilities and which ones are covered by general or individual permits, the
resources the states devote to the permit program, their backlog of expired
permits, and an outline of how the program is managed and implemented. Also in
the profiles are sections on the management of concentrated animal feeding
operations, stormwater control, water pollution concerns resulting from sewer
overflows and other wet weather issues, and the management of treated sludge,
also known as biosolids.
The agency also hopes that the Permitting for Environmental Results initiative
will help in the effort to reduce the backlog of expired permits that have to be
continued administratively.
Linda Boornazian, director of the permits division in the EPA Office of
Wastewater Management, told BNA she was optimistic about the agency's effort to
meet its backlog reduction goals and to implement changes that will make the
permitting program run more smoothly.
Once all the state profiles are in, the agency plans to work with the states and
regional offices in 2005 to develop action plans for improving the permit
programs.
"The thought was to not look just at the NPDES program, but at all the programs
that affect NPDES," Boornazian said.
Other areas of interest to states and industrial dischargers are use
attainability analyses (UAAs), which are required to revise a water quality
standard to one that is less protective.
Many argue that the standards for some water bodies are set too high and can
never be met. Andes said dischargers want to know how to use the UAA process to
get to a change in some standards.
A few UAAs have been done, he said, citing Kansas as an example. They were "the
easy ones" that addressed farm ditches discharging to significant rivers and
lakes.
Stormwater to Dominate Discussion
Much attention within EPA and outside of it will also focus on stormwater.
The U.S. Court of Appeals for the Second Circuit heard oral arguments in
November in a case brought by NRDC against EPA for not issuing effluent
guidelines to control runoff from construction and development sites.
"NRDC is very focused on the fact that new development on the face of the
landscape is generating water pollution when it rains," Stoner said. "Stormwater
is going to be big. ... I am anxious to win lawsuits, and I am anxious to work
with forward-thinking states on this."
Several states have been proactive in developing stringent controls to reduce
the amount of sediment and other pollutants that wash off the streets and
construction sites during rain.
Andes agreed that stormwater is a big issue, especially within the stormwater
program, which requires municipalities, construction sites, and large industrial
facilities to get NPDES permits for their stormwater runoff.
Andes questioned how to create a good stormwater general permit and whether
numeric limits are an appropriate solution since the constituents in the
wastewater would be hard to quantify, and traditional controls to meet numeric
limits do not necessarily work on stormwater runoff.
Meanwhile, EPA and municipalities continue to work on consent decrees to address
pollution from combined sewer overflows, which mostly occur during storms. These
are spills from sewer systems that combine both stormwater and sanitary waste in
the same pipe. When the systems get too full during a storm, it is designed to
overflow into nearby rivers and streams.
These types of systems are found in 772 communities, mostly in the Northeast,
Midwest, and Northwest.
EPA issued a policy in 1994 that was codified in 2000 which contained measures
cities could implement to reduce the frequency and volume of these spills.
However, when they happen, the cities can be sued either by federal or state
governments or by citizen organizations because the overflows are technically
unpermitted discharges.
A number of high-profile cases have been announced, including an agreement with
the District of Columbia Water and Sewer Authority to spend $1.2 billion over 20
years building extra capacity to store excess flows until they can be sent to
the treatment plant and treated.
Wetlands Mitigation Guidance
Another active area of the Clean Water Act is the regulation of wetlands, a task
that falls mostly to the U.S. Army Corps of Engineers, which issues permits
under Section 404.
Mark Sudol, chief of the corps' regulatory branch, told BNA his division is
developing guidance to outline criteria for mitigation projects that are
implemented to compensate for wetlands lost to development activity. He expects
to circulate a draft for review by EPA, the White House, and other agencies in
January and hopes to get a draft published in the Federal Register for a 60-day
public comment period in March or April 2005.
The guidance is intended to help level the playing field in terms of how the
corps views different types of mitigation by applying the same types of criteria
to determine the success of the project, Sudol said. This would be accomplished
by incorporating specific mitigation conditions in the Section 404
dredge-and-fill permits and articulating how the mitigation would be deemed
successful, he said.
To date, more emphasis has been placed on mitigation banking than on
site-specific mitigation projects, Sudol said. One way developers and farmers
can compensate for the destruction of wetlands on their land is through the
purchase of credits an established wetlands banks.
"We're trying to move toward more ecologically driven and enforceable
mitigation," he said. To make the mitigation and its success enforceable,
conditions have to be incorporated into the permit.
For site-specific mitigation projects, the corps may have some sort of tiered
criteria that may involve less drastic measures, such as replacing trees or
removing invasive plants that have created a problem for the ecosystem, he said.
The next level of criteria, he said, would be "more extreme" and could involve
grading the land to improve drainage or altering the hydrology of water on the
land.
"We want to move faster on using a watershed basis for mitigation," Sudol said.
"We want to look at mitigation from a watershed perspective; where does the
mitigation make the most sense?"
This broader view of the effects of development and mitigation on a watershed
may result in mitigation plans that involve some work in an upstream area
combined with an on-site project, Sudol said. Some mitigation projects that are
appropriate for one development site may not be a good idea in another.
"You don't want to put habitat in the middle of a housing development unless the
development is in the middle of a corridor [used by birds or other wildlife],"
he said.
The corps is also implementing a new database that will help track permits that
are issued by the district engineers for various projects and the mitigation
that is done. The new database, Sudol said, will have information on the types
of habitat and wetlands affected by the permitted project. Previously, the corps
only considered the number of acres affected.
Work on New Nationwide Permits to Begin
Sudol said the corps will also begin work to reissue the package of nationwide
permits (NWPs). These are general permits that authorize different categories of
development activities affecting more than a half acre of wetlands or other
waters of the United States. The new permits are due in 2007, when the current
set expire, he said.
Most of the permits will not be changed much, with the exception of NWP 21,
which is a general permit issued for mining operations, Sudol said.
NWP 21 has generated significant controversy because it is used to authorize the
disposal of excess spoil in valleys and streams from mountaintop coal mining
operations.
"If you look at the way it's written, [NWP 21] doesn't have an acreage limit,"
he said, adding that the corps is considering including such limits for the
mining permit. Coal mining operations in which the excess spoil would be
disposed in a stream draining a watershed of more than 250 acres may not be
authorized by NWP 21 under existing corps regulations. This would be considered
more than a minimal adverse impact, the 2002 rule said.
When the corps issued the 2002 nationwide permits, it said it would review the
programmatic environmental impact statement conducted to assess the effects of
mountaintop mining operations on the environment in determining possible
revisions to NWP 21 (See related mining outlook in this supplement).
Julie Sibbing, water policy specialist for the National Wildlife Federation,
told BNA the effort to reissue the nationwide permits is a high priority for her
organization and other environmental activists, who say the corps does not do
enough to consider the cumulative impacts of the development activities it
authorizes through the nationwide permit program.
Sudol said the corps has completed the draft regulation on all the nationwide
permits except for NWP 21, which he hopes to have ready soon for review by EPA
and the other agencies, such as the Office of Surface Mining. He said he would
like to have a package of proposed permits available for public comment by the
end of 2005 or early 2006.
________________________________________
Top Clean Water Issues in 2005
The top issues that will dominate the Clean Water Act agenda in 2005 include:
more debate and a possible policy on "blending," combining excess wet weather
flows with treated wastewater for discharge;
implementation of the stormwater program by small cities and development sites
and litigation surrounding EPA's decision not to issue effluent guidelines for
construction and development;
funding for water and wastewater infrastructure and other clean water programs;
an EPA initiative to improve the National Pollutant Discharge Elimination System
permit program;
using the Beach Environmental Assessment and Coastal Health (BEACH) Act to
control water pollution related to pathogens; and
development of guidance on criteria for mitigating wetlands lost to development
and agriculture.
By Susan Bruninga