Centering the People Most Impacted
Author
Chanté Coleman - National Wildlife Federation
National Wildlife Federation
Current Issue
Issue
5
Parent Article

The Environmental Protection Agency’s longstanding mission statement reads: “Federal laws protecting human health and the environment are administered and enforced fairly, effectively, and as Congress intended.” Protecting human health is a basic function of the government, and in the 21st century, no one’s health should be compromised due to environmental concerns.

Yet, low-income communities and communities of color are disproportionately impacted by climate change, pollution, and other environmental burdens. Decades of research point to this stark reality that we can no longer ignore. One way to address this is to make improvements to statutory or regulatory laws, such as the Clean Water Act. However, if we do not confront the underlying systems of oppression that continue to allow for some communities to be protected while our most vulnerable communities suffer, then we are not addressing the root cause of these issues. One way that racism and discrimination are upheld is through the disproportionate impact of laws, statutes, regulations, and policies, including the CWA. Indeed, race is the strongest factor in slow and ineffective enforcement of federal drinking water law in communities.

The CWA, as currently written, does not require communities of color and low-income communities to be prioritized in the implementation and enforcement of clean-up plans. Furthermore, while the CWA requires states to clean up impaired waterways, states have the autonomy to develop and prioritize clean-up plans in ways that often do not account for the overburden of pollution on low-income communities and communities of color. This disregard for unequal impacts will lead to increased pollutant discharges in these communities and a decline in overall health, widening the gap between the communities privileged enough to receive the benefits of these laws and those who are not.

To ensure the CWA truly protects the people most impacted by pollution, several key changes need to be made. First, states should be required to use all information available to prioritize clean-up plans in areas that are over-impacted, or even ban new pollution sources in these areas. EPA already collects relevant information through EJScreen, an environmental justice screening and mapping tool that combines environmental and demographic indicators in maps and reports. This data can be used to further target equitable implementation and enforcement of clean-up plans.

Governments should also expand this data on impacts to include climate change and emerging pollutants. The effects of climate change are increasing in severity and frequency, and low-income communities and communities of color are on the frontlines—especially when it comes to increased flooding and its associated surges in nonpoint source pollution. In addition to looking at past impacts of pollution, an update to the CWA should require states and EPA to address the degradation of water quality due to climate change in areas that are already overburdened from cumulative environmental impacts and systemic oppression. Another step to protect drinking water would be to remove exemptions in the Act that allow agriculture and many industries to pollute without safeguards.

Lastly, this data should be used to support funding for communities most in need. In the bipartisan Infrastructure Investment and Jobs Act, EPA is now required to undertake an analysis of the Drinking Water State Revolving Fund and Clean Water State Revolving Fund “to identify historical distribution of funds to small and disadvantaged communities and identify new opportunities and methods to improve equitableness of funds to rural, low-income, minority, and tribal communities.” This requirement, championed by the National Wildlife Federation, will ensure more funds go into the communities that are most impacted and least resourced to address infrastructure upgrades and other improvements. For the Clean Water SRF in particular, EPA should ensure that state implementation guidance includes equitable distribution of funding, such as allocating no less than half of funds toward communities identified through the holistic data measures outlined above.

While these proposed changes would strengthen the CWA and help prioritize affected communities, they are not enough. We must also directly address the issue of sacrifice zones. These are the marginalized, low-income communities, often communities of color, who we treat as less-than—and as a result, we over-pollute and over-extract these places to the point where community members are highly impacted and exposed to harms. Changing the CWA can only do so much to reduce the unjust concentration of pollution burden in these communities. We must understand and address the many systems, including unequal access to housing, education, and transportation, that perpetuate this harm and continue to hold us back from reaching our pollution-reduction goals.

I want to thank my colleagues who helped this article come to fruition, including Anna Brunner, Elizabeth Lillard, Glenn Watkins, Jim Murphy, Matt O’Malley, Dr. Mustafa Santiago Ali, and Peter Marx.

Chanté Coleman is vice president of equity and justice at National Wildlife Federation.

Ensuring Lasting Progress on Water Quality
Author
Fred Andres - Barnes & Thornburg LLP
Barnes & Thornburg LLP
Current Issue
Issue
5
Parent Article

Over the last 50 years, the Clean Water Act has made great progress in addressing the nation’s water quality challenges. We owe many of our achievements to that statute and the regulations that have followed. But we also know that many issues remain. Some are longstanding problems that have not yet been resolved, and some are new issues, such as climate change, that have arisen in the meantime. In some ways, these new issues pose the most difficult and complicated challenges faced yet under the Act. That is especially the case given the current political situation, as well as potential changes in the doctrines laid out by federal courts to govern the regulatory process. To make progress in this environment, we need to work together in creative ways to provide regulatory stability and involve all stakeholders.

In charting this path, we need to keep several key concepts in mind. The first, and perhaps the most important, is to focus on results, rather than simplistic measures that don’t measure real improvements in water quality. We can look at numbers of permits or Total Maximum Daily Load levels or rules issued, and take those as signs of progress (or lack thereof), but those metrics don’t really tell us much. We need to define our goals in terms of what really matters: Are we making dirty waters cleaner, and are we keeping the clean waters clean? To assess progress toward those goals, we need robust, solid data. Collecting and analyzing those data needs to be a priority—including making sure that EPA, states and other stakeholders have the resources needed to effectively conduct these efforts.

We also need a renewed focus at the watershed level. Too often, our regulatory programs sit in silos—looking at specific facilities, certain reaches of rivers, or narrow parameters—and lose the bigger picture. There are many watersheds around the country where stakeholders are looking at the whole watershed and protecting its designated uses—and making real progress. But those efforts do not fit easily into our current regulatory structure. To promote and expand use of those watershed approaches, we need to find ways to encourage their use within CWA provisions and the regulations issued under the CWA.

When addressing issues at the watershed level, it’s important to consider environmental justice concerns. To do so, we need to define what EJ means in practical terms. For regulated parties to factor EJ issues into compliance plans, policymakers should provide specific, concrete guidance on actions that need to be taken in order to be in compliance. The clearer those requirements are, the easier it will be for dischargers to plan and take necessary actions. And of course, the process of creating and implementing those requirements must involve the affected community. This approach is already being taken in some areas, and those examples can be used to provide guidance for implementing EJ concepts elsewhere in the country.

Climate change is another issue that needs to be addressed under the CWA, in a way that will facilitate effective compliance actions. Because climate change is a long-term issue, figuring out how it should be addressed by particular facilities can be challenging. It is particularly difficult when there are several ways in which climate change considerations can factor in—for example, if new CWA controls are required to address water quality issues, those control systems may increase energy use at facilities, thereby increasing the facilities’ carbon footprints. As with EJ, it will be important to develop clear guidance and/or requirements for facilities to consider climate change concerns. This will markedly increase the chances that real progress will be made in implementing needed actions.

A final concept to consider in developing CWA policies going forward is the need to balance two potentially conflicting priorities: promoting regulatory stability and encouraging adaptive management and cooperation. Shifting directions from regulatory agencies (and Congress) only create confusion and increase the potential for conflict. Putting requirements into effect, and then leaving them in place to be implemented over a period of time, will enable us to make progress—and will also help us figure out what is working and what is not. At the same time, we need to maintain enough flexibility in the regulatory structure so that when actions don’t work, we can make the needed changes to move in a more productive direction. Improving the CWA therefore will entail steps toward implementing both of these priorities.

Fred Andes is partner at Barnes & Thornburg LLP and the leader of the firm’s water team. Fred is involved in counseling and litigation on issues arising under various federal and state environmental laws, with a special emphasis on Clean Water Act matters.

The Clean Water Act at Year 50: What's Next for Water Protection?
Author
Fred Andres - Barnes & Thornburg LLP
Chanté Coleman - National Wildlife Federation
Ben Grumbles - The Environmental Council of the States
Traci Iott - State of Connecticut Department of Energy and Environmental Protection
Barnes & Thornburg LLP
National Wildlife Federation
The Environmental Council of the States
State of Connecticut Department of Energy and Environmental Protection
Current Issue
Issue
5
The Debate: The New Toxic Substances Control Act Is Now Five Years Old: A Report

By regulating pollutant discharges and setting water quality standards, the Clean Water Act has led to substantially cleaner streams and lakes since its passage. Yet many challenges remain for the future of water protection. Nonpoint source pollution, including agricultural runoff and erosion, has yet to be adequately managed under the law. Assuring no net loss of wetlands is an ongoing task. The CWA has also yet to address the impacts of climate change, which will significantly alter water landscapes.

In the coming years, regulators will need to refine the long-contended Waters of the United States definition. They will also need to address profound issues of environmental justice, as lower-income communities and communities of color face disproportionate levels of pollution.

We ask experts from a range of backgrounds: How can we update the CWA to address growing challenges in protecting our nation’s waters in the next 50 years? What policies or practices should we prioritize to address the unique water issues faced in communities disproportionately affected by pollution, rural areas, and tribal nations? And how can the CWA use new digital tools and innovative policies to better enhance water protection?

THE DEBATE By regulating pollutant discharges and setting water quality standards, the Clean Water Act has led to substantially cleaner streams and lakes since its passage. Yet many challenges remain for the future of water protection. In the coming years, regulators need to address nonpoint source pollution, disproportionate pollution burdens, and climate change, among other issues. We ask experts: At year 50, how can we update the CWA to alleviate water issues over the next half-century?

Fostering Innovation in Water Programs
Author
Andrew Sawyers - Office of Wastewater Management at EPA
Office of Wastewater Management at EPA
Current Issue
Issue
5
Parent Article
Headshot of a Black man in a suit

Clean and safe water is one of our nation’s most precious resources. It powers our economy and gives us opportunities for recreation and play. When Congress passed the Clean Water Act in 1972, it charted a new path for America’s waters. As a result, we have seen transformational progress over the last 50 years. Frankly, the CWA has been an enormous success. But our work is not done. Communities are looking toward innovation and technology to tackle some persistent challenges, and thanks to the historic bipartisan infrastructure law, EPA is investing in infrastructure to make progress on clean water needs across the country.

Managing sewer and stormwater systems remains a significant challenge in many areas. Rainfall can enter aged sewer systems and significantly increase flows at wastewater treatment facilities, creating operational challenges and potentially affecting treatment efficiency, reliability, and system control. In some parts of the country, planners are grappling with more frequent and intense rainfall events. This especially poses an issue in underserved communities, which often have older infrastructure that is subject to more frequent sewer overflows, basement backups, and catastrophic flooding.

Innovations in planning and efforts to find more cost-effective solutions to meet water quality goals have also led to the creative deployment of technologies in sewer systems. In recent years, municipalities and utilities have increasingly looked to smart-sewer technologies to improve their operations and infrastructure.

Smart sewers integrate emerging and advancing technology to enhance the collection, storage, and analysis of water-related data. Smart sewers, along with smart data infrastructure, can provide tangible benefits to utilities—such as reducing maintenance costs, and providing more expedient overflow response—while helping communities meet their CWA obligations.

EPA supports this flexibility. As communities evaluate creative solutions to address their wet weather challenges, we continue to offer information and support on best practices and technologies. Last year, we issued a report, “Smart Data Infrastructure for Wet Weather Control and Decision Support,” that highlights current technologies and provides case studies to describe some of the ways municipalities and utilities can implement these technologies. The advancement and proliferation of data-gathering technologies will lead to the generation of more accurate information and provide for lower-cost operations. With more accurate data, operators can make more informed decisions, increasing efficiency and reducing risks.

And EPA is here to help. As we work with states to administer and implement the historic investment in our water and wastewater infrastructure through the Infrastructure Investment and Jobs Act, the agency is committed to providing technical assistance to communities. Technical assistance is designed to build and improve capacity at the local level, including technical, managerial, and financial capacity, to create and successfully implement solutions to wastewater and stormwater challenges.

The agency has over 30 years of experience helping communities pay for water infrastructure projects. Since 1988, the Clean Water State Revolving Fund has provided over $153 billion in low-cost assistance to borrowers across the country. And thanks to the bipartisan infrastructure law, over $3 billion is available through the CWSRF in fiscal year 2022, of which a significant portion will be made available at 0 percent interest or as additional subsidies. Also, the Water Infrastructure Finance and Innovation Act program, a newer EPA loan program, has provided over $15 billion in credit assistance and has over $6 billion available in fiscal year 2022 for loans. The financial and permitting programs that EPA has deployed to support communities over the last 50 years to mitigate pollution, clean our waters, and invest in infrastructure, are all enabled by the CWA.

From coast to coast, and for all communities, EPA is helping advance and fund water infrastructure upgrades through additional subsidies and low-cost loans.

The Path Forward for Water Utilities
Author
Oluwole “OJ” McFoy, P.E. - Buffalo Sewer Authority
Buffalo Sewer Authority
Current Issue
Issue
5
Parent Article
Headshot of a Black man with glasses smiling and standing in front of a body of water

As the Clean Water Act turns 50, I am pleased with the progress we have made over the decades. I am also genuinely excited about where public clean water utilities are headed in terms of infrastructure improvements, management, and equity.

It is really only in the past 10 to 15 years that clean water utilities have begun to understand the triple bottom-line benefits—environmental, social, and economic—that our work can have within our communities. As my friend George Hawkins would say, every job in this country depends on an uninterrupted supply of water and wastewater services. That everyone generally takes these services for granted is a testament to the irreplaceable leadership of our utilities.

In Buffalo, New York, we have focused on meeting stringent Clean Water Act requirements using gray infrastructure and innovative green infrastructure—creating beautiful green spaces across a city with many low-income residents. These green spaces fulfill the utility’s longstanding mission to provide cleaner water and improve the environment, while also beautifying our residential areas, creating solid jobs, and improving real estate values.

The last decade-plus has also brought forth the discussion of a new “One Water” approach, where utilities like Buffalo can deploy technology and innovative management techniques to ensure that we are seizing opportunities holistically across the full range of water management challenges: stormwater, wastewater treatment, flood management, and water supply. This One Water management approach is vital for prioritizing extremely costly and complex challenges, from aging infrastructure, emerging contaminants like PFAS, sewer overflows, nutrient pollution, cybersecurity, as well as lead and copper, to name just a few.

Only by taking a One Water integrated planning approach can we maximize each and every ratepayer dollar—dollars that are increasingly constrained, especially in cities like Buffalo that face an enormous poverty challenge.

I predict that the next 50 years will also benefit from unprecedented technological breakthroughs, resulting in a new “smart utility”—where sensors and predictive technology will allow enormous efficiency gains as well as new workforce opportunities. The smart utility movement will put the water sector on a path to what I call “efficient sustainability,” allowing us to meet our growing compliance costs while ensuring affordability for our ratepayers.

Buffalo has been blessed to receive funding support through various federal and state water programs, including the State Revolving Fund program. We look forward to seeking funds through the $55 billion set aside for water in the bipartisan infrastructure law. These resources have been hugely helpful for our work. And importantly, this local-state-federal partnership—coupled with the management innovations discussed above—will be crucial for continued improvements in clean water over the next five decades.

But one area where we can make the most progress is ensuring equitable access to clean and safe water services for all. We must make sure that those who may have been left out from receiving their fair share of benefits from environmental improvements and investments, and those who have been harmed by policy decisions of the past, are no longer ignored. Future decisionmaking by public and private-sector water leaders must fully account for the principles of water equity and environmental justice.

It is for these reasons that I am truly excited about where the next five decades of water management will take us. So long as we remain rooted in the spirit of public service on behalf of our ratepayers and residents, the next 50 years will undoubtedly be even better than the first 50!

The Clean Water Bill
Author
George Hawkins - Moonshot Missions
Moonshot Missions
Current Issue
Issue
5
beach shack advertising swimming masks for 5 dollars, fishing rods for 4 dollars, and clean water for 500,000,000,000 dollars

Contrary to the impassioned counsel of William D. Ruckelshaus, his EPA administrator, President Richard Nixon vetoed the Clean Water Act of 1972, stating in part “that we attack pollution in a way that does not ignore other very real threats to the quality of life, such as spiraling prices and increasingly onerous taxes. . . . Even if Congress defaults on its obligations to taxpayers—I shall not default on mine.”

Senator Edmund S. Muskie, Democrat of Maine, perhaps the single most important proponent of the bill, thundered back, “Can we afford clean water? Can we afford rivers and lakes and streams and oceans which continue to make life possible on this planet? Can we afford life itself?” Two hours later, the Senate voted 52-12 to override the veto, and the House followed with an astounding vote of 247-23. The CWA became the law of the land.

This monumental step taken 50 years ago, on October 18, 1972, highlighted fundamental issues that continue to govern debate on protecting the environment: how clean is clean, how much are we willing to spend, and how can we incorporate the best technology and practices to achieve our best answer to the first question, with the lowest cost answer to the second.

We argue here that while Senator Muskie was a visionary in 1972, President Nixon’s words have come back to haunt us 50 years later, even if for reasons he could not have imagined. We make this case recognizing that parallels to 1972 are uncanny—for today the country is preparing the largest federal investment in water infrastructure as part of the American Rescue Plan and the Infrastructure Act since the construction grants program funded by the CWA in 1972.

The CWA regulatory structure and complementary federal funds delivered one of the great policy successes in history. Yet, mainly due to that success, the ARP and infrastructure investment today risks being ineffectively spent at best, and mis-spent at worst—which would be a tragic missed opportunity. Changing that outcome may require modifying the statute today with the same courage and foresight that was evident in 1972.

The hallmark of the CWA is its function as a technology-forcing statute. In 1972, the Senate, borrowing on experience from the Rivers and Harbors Act of 1899, championed the radical approach of prohibiting discharges of pollutants, mainly from “point source” industrial and municipal wastewater treatment plants, unless governed by standards imposed by a permit. Standards are developed by analyzing what is achievable by the best available technology, without needing to assess the water quality of the receiving waters. The goal is to achieve waters that are fishable and swimmable by eliminating pollution as technology standards ratchet down over time. Hence the name: the National Pollutant Discharge Elimination System.

Also included in the CWA were improvements championed by the House to the existing system featured in the CWA’s predecessor laws dating back to 1948, which authorizes states to develop standards based on the quality of the receiving waters. Water quality standards were criticized as ineffective prior to 1972 and took a back seat to technology standards for years. Today, these standards are gaining a new life in the Total Maximum Daily Load program. Water quality standards, when they are successful, still aim mostly at the same target: point source dischargers, often adding additional limits to a NPDES permit.

Looking back, Senator Muskie was right: the CWA technology-based permitting system, along with the grants program that helped build a generation of treatment plants, has been a spectacular success. In 1972, my hometown waterway—the Cuyahoga River—was famously flammable, and in one species count, exhibited six fish (not species—six fish!). Today, the Cuyahoga River is home to more than 60 species of fish. The best bass fishing on the Potomac River, once called a stinking disgrace by Secretary of the Interior Walter Hickel (and mistakenly attributed to President Johnson), is just downstream from the District of Columbia Water and Sewer Authority’s (“DC Water”) huge Blue Plains Wastewater Treatment plant. Look down when you fly into Washington Reagan airport—you may be able to see water emanating from the plant creating a clean blue oasis surrounded by the often-brown water of the Potomac.

Herein, though, lies the lesson. Blue Plains treats about 300 million gallons of wastewater every day—enough to fill a professional football stadium. Most of this water comes from the Potomac, which after its use by people in a 725-square-mile region surrounding Metropolitan Washington, is transported to Blue Plains through 1,800 miles of pipes. Over time, as clean water standards have tightened, Blue Plains has removed an ever-larger percentage of pollutants before recycling the water back into the Potomac, which has therefore seen spectacular improvements.

The technology-forcing approach is relentless though, for the standards continue to ratchet down even as the costs rise, often exponentially. Take nutrients, the byproduct of the food and waste we flush down our toilets and sinks as well as animal waste, chemical fertilizers, leaves, and other organic refuse that wash off our streets, yards, and natural lands. If too many of them flow into our rivers, they function just like fertilizer. Algae and other plants thrive and die—a lifecycle that absorbs oxygen—and other organisms, including fish, oysters, and many other species, literally choke from the lack of oxygen.

In 2000, Blue Plains adopted the first phase of technology required under the CWA to reduce the concentration in its effluent from 14 milligrams per liter to 7.5 mg/L, which removed 7.3 million pounds of nitrogen per year at a cost of just more than $16 million. In the next phase, which ended in 2010, Blue Plains reduced nitrogen concentrations to 5 mg/L, which amounted to a reduction of 2.9 million pounds per year at a cost of about $130 million—about eight times the original price tag. In 2010 the permit ratcheted down again, mandating that the facility further reduce nutrients to 4 mg/L, or an additional reduction of 1.2 million pounds per year. This incremental reduction cost nearly $1 billion. The capital cost to remove one pound of nitrogen thus increased about 380 times. What was a budgetary hiccup became a major expenditure for Blue Plains and the ratepayers it serves.

The rote application of technology-based standards triggers an even more staggering consequence in the systems that address an ancient challenge: how to manage sewage and stormwater collection in our cities. Hundreds of older urban communities were built with sewers that collect both sanitary flows and stormwater runoff in the same pipe—called combined sewer systems, or CSS. Other cities have separate sanitary sewer and stormwater systems, which goes by the abbreviation MS4. Some cities have both.

Combined sewers fill with stormwater in larger storms and were designed to overflow during these events—sending untreated sewage and stormwater conveying all the detritus of city streets, parking lots, lawns, and the rest, to local waterbodies. Separate sewers are also prone to overflows of sewage due to blockages and lack of maintenance. MS4 pipes convey stormwater directly to local waterbodies, with many of the contaminants just mentioned but virtually no treatment prior to discharge in every rain event. Sanitary System Overflows are known as SSOs and Combined System Overflows are CSOs. Together with MS4 discharges, all three violate the CWA by threatening water quality, public health, and the environment.

EPA reported to Congress about this challenge in 2004—still one of the best summaries of the issue. The agency said that 746 communities had combined systems, with 9,348 CSO outfalls that discharged about 850 billion gallons of untreated sewage and stormwater per year. EPA estimated that between 25,000-75,000 SSOs occur each year, releasing an additional 3 to 10 billion gallons of untreated sewage—in this case not only to waterways, but to basements and city streets as well.

Remarkably, EPA’s first major CSO policy statement was in 1989, followed by guidance in 1994 and 1995, and then the first major implementation date for the so-called “nine minimum controls”—25 years after the passage of the act. There are many reasons for this enormous lag in performance, which in large part comes down to the difference between working “inside the fence” and “outside the fence” of treatment facilities.

First came improvements to treatment plants that involve adapting technologies and building new structures into existing facilities. Maintenance and upkeep follow—but within the controlled and visible environment “inside the fence.” Most publicly owned treatment plants are more alike than different, and uniform effluent standards are therefore easier to develop and apply.

Second came improvements to sewer and stormwater collection systems—which means working in the city, with the cost of the new equipment dwarfed by the reality of digging up streets. Maintenance and upkeep are more difficult, requiring crews that maintain a sprawling system “outside the fence” but hidden from the public and utility alike. The structure of combined and separate systems in each city is as diverse as the thousands of cities themselves.

The difference in venue is compounded by the answer to an ancient debate: should sanitary sewage be captured in pipes that are separate from the pipes that capture stormwater runoff, or should these flows be combined? From the beginning, there has been a fascinating interplay between technology and the solutions to wet-weather flow.

The common denominator, though, is that the expense of managing sewage and stormwater flows is immense—and involves not just the design of treatment and technologies, but the design and function of every city street, commercial building, residence, and public space. In this context, most consider combined sewers the overriding challenge, but a closer look suggests a more nuanced set of pros and cons.

Combined sewers in dry (non-storm) flow conditions, and at the first flush in wet weather, can intercept most of the flow and convey it for treatment—a clear positive. The first flush in any rainfall event includes the most contaminants and refuse, and channeling that flow for treatment is very beneficial. Yet in major rain events, combined systems overflow to urban waterbodies—a clear negative.

Separate sanitary systems intercept all sewage flow for treatment—a clear positive, although these systems are also subject to blockages and overflows. The MS4 system routes stormwater out of city streets—a clear positive. Yet the separate stormwater flow receives little or no treatment prior to discharge to urban waterways—a clear negative.

For either situation, the CWA is clear. The statute prohibits discharges of pollutants unless governed by a permit based on achievement of technology and/or water quality-based standards. In practice, though, applying standards to such complicated systems has yielded a fascinating combination of site-specific management requirements paired with preferred, if frequently rudimentary, technological requirements.

For combined sewers, as an example, EPA and states develop standards from an amalgam of modeling conjecture paired with an evaluation of common control technologies. Since events that trigger a violation are related to the capacity of the CSO system to manage stormwater flows, the best available technology is founded on increasing that capacity with a variety of hard or gray infrastructure solutions. Most common is either replacing combined systems with separate sewage and stormwater pipes (with all the pros and cons noted above), and/or the building of storage basins of various designs and deep storage and conveyance tunnels to capture overflow until after the rainfall and excess flow recedes. Importantly, many cities now are building green infrastructure that can capture and retain or delay stormwater before it reaches the combined sewer or MS4 system.

This approach made sense when it came to the forefront in the 1990s. Rainfall and flow modeling based on data from selected hydrologic years predicts how much excess flow is to be managed and where, and how many overflow events are likely to occur. The utility is required to implement a set of nine control mechanisms to gain relatively speedy reduction in the number of overflows, followed by the negotiation of an aptly named Long Term Control Plan to reduce the number and volume of overflows to a magic number predicted in the models over the following 20 to 25 years.

The result is that although the language and process of a NPDES permit is used, the approach is actually like a site-specific negotiation more typical for water quality standards based on the conditions in the system. But the technology-based rigidity takes the lead in the final plan—for the analysis often boils down to a target number of overflows that are projected to occur in any given year, which look awfully like common discharge limitations in a NPDES permit.

This approach makes sense until the cost of the solution is considered, in parallel with assessing whether reducing overflows to a specific number is the optimal use of public funds to improve water quality. Let’s return to Washington to understand this approach. All three of DC’s main waterways were polluted each year by more than 3 billion gallons of untreated sewage and rainwater overflowing from antiquated combined sewers. Moreover, peak wet-weather flows of up to 1 billion gallons per day arriving at Blue Plains during storm events did not benefit from full treatment.

In response, as outlined in its NPDES permit and two consent decrees, DC Water has been required to implement the nine minimum controls at a total cost of $40 million, which reduces projected overflows by 40 percent. Then it must expand the capacity of secondary treatment at Blue Plains for peak flows and extension of the tunnel system to capture additional flow prior to treatment at a total cost of more than $900 million, which reduces nutrient discharges and increases the CSO capture percentage. Last, it expanded the capacity of the collection system to store and convey peak flows by building giant underground tunnels, including building additional treatment for excess flow at a cost of more than $2.5 billion, with projected additional reduction of overflows by 56 percent.

DC Water avoided the other common solution, except in limited areas, which is to reconstruct combined systems into separate storm and sanitary. For DC, and most other cities, this option is cost prohibitive. After years of difficult negotiation, DC Water added a pilot to test whether green infrastructure, or GI, might become a more important part of the solution. If successful, it would eliminate the need for one of the planned tunnels. Each solution, including GI, is expensive to plan, design, and implement—and involves disruption to the community during construction.

Today, after more than ten years of construction, DC residents are seeing steady improvements to water quality. Yet they will never see the main solution, which is the most expensive public works project since the construction of the Metro system, because it is hidden underground and sits idle until a storm hits. (In comparison, a heralded school rebuilding program was targeted to spend $1 billion.) This solution has caused sewer rates to increase by a factor of three—from just about $40 a month to more than $120 a month, with further rate increases projected for the next decade at least.

Hundreds of CSO cities face challenges and costs of this magnitude: Northeast Ohio Regional Sewerage District serving the metropolitan Cleveland area is building a $3 billion solution; Kansas City faces a $2.5 billion bill, with St. Louis perhaps facing the highest cost at $4.7 billion. Medium and smaller cities face enormous costs as well, from an initial projected cost of more than $3 billion in Cincinnati and $1.4 billion in Buffalo to nearly $900 million for South Bend, Indiana.

Readers should step back and consider the size and scale of these numbers. The CWA is requiring expenditures that dwarf municipal budgets and present grievous affordability challenges for low-income ratepayers and transfer precious local funds from other priorities for schools, housing, and the rest. I can imagine what President Nixon might have said about these costs. We can also imagine how Senator Muskie would have responded, voiced today by environmental and community activists, “Can we afford not to have clean water? Can we afford life itself?”

Muskie and Nixon were both right. The senator was right that an investment in clean water is protecting life itself, and in economic terms, can be a wonderful investment. Improvements at Blue Plains have helped the revitalization of the Chesapeake Bay. The Maryland Department of Natural Resources in 2004 placed the value of the Chesapeake Bay to Maryland and Virginia at more than $1 trillion, with an annual economic benefit of $33 to $60 billion. We support investing in clean water if we believe the money is being invested in the right projects and is accomplishing the right outcomes.

Yet Nixon was right too—society must be careful about the expenditures of such vast sums of public money. The CWA’s strength is its relentless drive to mandate technology-based standards to drive down pollutants. Its weakness is that there is no mechanism to place this process on hold once the costs overwhelm the benefits, or to shift focus to different sources and solutions.

Let’s turn to Cincinnati and South Bend to explore this concept. The Metropolitan Sewer District of Greater Cincinnati serves a population of 850,000, spread across 290 square miles. MSD manages both combined and separate sewer systems, which were estimated to overflow 11.5 billion gallons of combined sewage into the Ohio River and its tributaries every year. Applying the standard NPDES process to solve this problem—modeling of overflow volumes and events paired with the setting of standard solutions, mainly deep tunnels and additional storage—EPA estimated the cost to be $3.1 billion in 2002.

In my experience, groundbreaking innovation occurs when a team of the right people come together to face what seems like an insurmountable challenge. This was the scenario for MSD: a $3.1 billion price tag was unimaginable for a region comprised of many low-income neighborhoods and a struggling rust-belt economy. MSD Director Tony Parrott, Deputy Director Biju George, Watershed Director Mary Lynn Loder, and Principal Engineer Reese Johnson, along with a few bright and creative consultants started to develop an alternative solution.

The first flaw they discovered was the use of modeling to accurately predict future overflows, which drove the selection and scale of the remedy. When comparing actual data to the model, the team was stunned with how often it was wrong: over- or under-predicting overflows. The solution was to recalibrate the model after each event, and to add significant margins of safety just to be sure. The result, though, was to drive remedies to a larger and more expensive scale, with the parallel risk that these solutions would in fact be more than needed in some places, and less in others.

A simple question from Biju George triggered a revelation. “Why can’t the data be the model?” As sensor technology, computer power, and use of predictive models were expanding with rapid speed, the team began to consider how a model based on data from past years could be replaced by a model that reflects events in real time. This is not really a model, but a “virtual twin” that integrates current rainfall and discharge data along with data from digital sensors to provide operators with an accurate picture of exactly what is happening in the system, which then can be paired with algorithms to improve real-time control decisions on how to respond.

The next revelation came after the virtual twin “turned on the lights” in the sewer system. Assets associated with MSD’s Mill Creek Interceptor, both upstream and downstream, had been managed separately as point sources or facilities, but never as a system. Building the virtual twin revealed that rain does not fall uniformly and that different parts of the system overflowed at different times, and that adding carefully located gates and storage to hold some flow in certain places enabled more capacity for flow in others, optimizing the performance of the system and decreasing overflows.

To improve water quality, the team also learned the importance of determining when flow is captured for full treatment, rather than just the total quantity. Capturing most of the first flush for treatment yields far more water quality benefits than capturing larger quantities of flow later in the storm. The real-time system, gates, and storage can be manipulated to ensure this outcome.

Developed without any certainty that EPA and state officials would accept the approach, MSD implemented a strategy that reduced overflows by 250 million gallons at a savings of 90 percent compared to the 2002 consent decree. The MSD team had reduced the cost of capturing combined sewage from almost 25 cents per gallon to a single penny. After years of patient negotiation, regulators finally accepted this outcome.

At nearly the same time, the city of South Bend, an urban area of 100,000 residents with more than 20 percent living in poverty, faced a similar challenge. Just a year after Cincinnati’s 2002 consent decree, South Bend entered negotiations on its Long Term Control Plan. The determination, once again relying on hydrologic year models and tunnels and storage, would cost between $800-900 million. The consent decree memorializing the LTCP was signed in 2011, with the model-generated number of overflows to be reduced from approximately 80 times a year to only four.

Just like MSD, a group of public servants and consultants banded together to find an alternative—since the price tag was unimaginable for a small Rust Belt city with high poverty levels. South Bend also devised a program premised on real-time data from rainfall, discharge, and digital sensors. Turning on the lights yielded a similar outcome: a virtual twin that optimizes existing capacity, enhanced by targeted additional storage, reduced overflows by 70 percent at a cost reduction of $500 million when compared to the 2011 consent decree. After a decade of patient and persistent effort, EPA and the Department of Justice approved a modification to their consent decree memorializing this new approach in 2021. South Bend’s Mayor Pete Buttigieg, now President Biden’s secretary of transportation, ran for president partly on the prowess of this smart sewer approach.

Deploying sensors and artificial intelligence has benefitted sanitary sewer systems as well as combined sewers. In San Antonio, Texas, the challenges were blockages, back-ups, and overflows. Each blockage could cause an overflow of pure sewage into waterways, basements, and city streets—and triggered the immediate deployment of crews to stop the discharge and clean up the sewage, seeking to minimize the damage to public health and the environment, not to mention property and commercial losses.

EPA and the San Antonio Water System, SAWS, entered into a sanitary sewer overflow consent decree to govern a response. EPA’s best technology response for SSOs is outlined in its Capacity Management Operation and Maintenance program that outlines an inspection and cleaning practice modeled from data based on past overflow events (sound familiar?). The SAWS program based on CMOM was estimated to cost $1 billion.

Facing such a staggering bill, SAWS officials also felt compelled to find an alternative and began working with technology providers to deploy sensors underneath manhole covers to provide real-time data on sewer flows. Automated software spotted anomalies: if a blockage was upstream of the sensor, the flow would start to decrease because the blockage would act like a dam holding back flow. If the blockage was downstream from the sensor, the flow would rise as sewage backed up behind the blockage, again, just like a dam. In both cases, though, crews were dispatched to investigate and if need be, clear the blockage long before it became severe enough to cause an overflow.

Turning on the lights again drove dramatic results. Rather than dispatching crews to clean on pre-scheduled cleanings, crews were only dispatched when actual problems were revealed by real-time data. SAWS reduced the 1,246 anticipated cleanings to 65 actual. Yet with the 95 percent decrease, SAWS’s program simultaneously eliminated many SSO overflows and is credited with 216 SSO “saves”—blockages that were discovered and resolved before an overflow was triggered. The return on investment for SAWS is estimated to be 115 percent.

Today, these approaches and their technologies continue to evolve rapidly. Many cities are reaping the considerable benefits from turning on the lights, from the Buffalo Sewer Authority, which has saved at least $400 million in its LTCP plan while reducing overflows more quickly than planned, to Grant Rapids, Michigan, which has reduced the infiltration and inflow into its sanitary system that was causing overflows at a cost of $30-50 million rather than the projected $1 billion.

Tony Parrott, whom we last saw in Cincinnati, is now the general manager of the Louisville and Jefferson County Metropolitan Sewer District. He has perhaps the best story to tell. Louisville was one of the early adopters of real-time controls, and is using discharge and rainfall data, and sensors installed throughout a watershed, to target every tool in the arsenal—condition and discharge data to prioritize updates to treatment facilities, a virtual twin that enables both automatic use of gates and local storage to maximize storage in the collection system, flow sensors to identify sanitary blockages before they happen, and flow data to target the best locations for GI to retain stormwater in beautiful local greenways. He has achieved a second modification of Louisville’s consent decree. It now contains perhaps the most ambitious integrated plan, which targets scarce public funds to the greatest risks.

The reality of these stories, though, is that they turn the CWA on its head. No longer is the CWA forcing the adoption of new technologies. Without intervention, the CWA, EPA, and state regulators drive the implementation of solutions that are steeped in the technologies of the past, are extraordinarily expensive, and frequently yield meager environmental results. Municipalities seeking to protect the environment without facing financial oblivion take matters into their own hands and devise alternative solutions. Although most have ultimately been able to gain approval for these directions, cities endured years of diligent, expensive, and persistent efforts to persuade risk-averse regulators.

This reality must change. The good news is that many in EPA and the states understand that change is possible, and various written policies support these directions. For example, the agency now encourages a utility to adopt integrated planning—which assesses all the needs for the facility to support a plan to target the most efficient and effective steps to improve water quality in a series of steps, rather than the rote application of the next reduction in standards driven by whatever permit provision comes next. This is a step in the right direction, but far more must be done.

First, the CWA should be updated to shift the focus from best available technologies on individual point source discharges, to turning on the lights on the real-time conditions of treatment plants, sewage and stormwater collection systems, and the watersheds in which they reside—as a system. Based on existing discharge information and available weather data, mandating the deployment of sensors will deliver insights on the health of each waterbody, and where and how public dollars can be spent to yield the best improvements to water quality.

In this manner, we can finally integrate the two systems incorporated into the CWA in 1972. Rather than being separate from water quality-based standards, technology will enable us to understand the water quality of a system, identify sources of pollutants and problems, and target the best new technologies—including automated gates, targeted storage, anticipated cleanings, and multi-benefit green infrastructure. Hundreds of millions, if not billions, of dollars will be saved from projects that are otherwise over-designed, based on outdated models and technologies, or simply not needed. And paired with savings, water quality and the environment will be better protected than ever before.

Second, the CWA needs to empower EPA to mandate new standards for the operation and maintenance of water systems. The success of San Antonio, Grand Rapids, and many other communities shines a light on how low-cost sensors, cell networks, and artificial intelligence have radically improved the operations of these systems, reducing overflows and risks to public health and water quality, and at radically lower cost than past practices. This is a breathtaking success and should become the law of the land. EPA must shift from being open to these strategies to requiring them in the first place.

Some will balk at such mandates, as they would yield changes to others—including a hiatus on the automatic ratcheting down of point source discharges absent a compelling water quality improvement in the receiving water revealed by the virtual twin of the system. I would counter that these technologies are no longer new or innovative and are nearly as well understood today as secondary treatment was in 1972. The environmentalist in me believes this is the step we need today to achieve the next generation of protection at a price we can afford.

Third, the CWA needs to be amended to create a safe “box” in which regulators, utilities, and community and environmental advocates can experiment with new approaches to adopting the speed and range of new technical capabilities to achieve water quality goals. This approach was tried during the Clinton administration with Project XL, which was designed to foster pilots to improve the regulatory system. As a member of the XL team, I discovered that without a statutory safe harbor from the required mandates of the CWA, with appropriate safeguards of course, no real experimentation was possible. Every major system, regulatory or otherwise, needs to be able to challenge its assumptions and innovate new approaches in the face of changing times.

Finally, these changes should be made soon, so that funding from ARP and the Infrastructure Act can be targeted to help pay for these new mandates, just as the construction grants program in the 1972 CWA paid a large measure of the cost of secondary treatment. Without change, infrastructure funding will support replacing our old systems with newer systems that look just like them. What a shame that would be. We should encourage and maybe even require that this expenditure of public funding builds a new system that reflects the best of what we can offer, permanently improves the environment, and reduces the cost of water systems, and thus yields benefits to future generations.

The 1972 CWA was a crowning achievement of its generation, and has delivered breathtaking and lasting benefits to the water quality and environment of this great country. Fifty years later, we have the knowledge, experience, and capability to update the act to improve the waters of this country for the next half century. Our forebears were bold in 1972 and it is our turn to take bold action in 2022. TEF

COVER STORY Cities facing huge costs for implementing technology- based standards for storm runoff and sewage treatment are now looking beyond the letter of the federal pollution law to achieve superior water quality gains at substantially lower costs. It is time for the CWA to catch up.

When Only Congress Can, It Can't
Author
Stephen R. Dujack - Environmental Law Institute
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
5
drawing of a wave crashing

I didn’t know when I became editor of the Forum that the era of landmark environmental lawmaking was almost over—with some exceptions that I will duly note. The year was 1990, and the buzz was all about new amendments to the Clean Air Act that would address the scourge of acid rain through the first large-scale test of emissions trading. It was the kind of legislation that is so desperately needed today to address the climate crisis by moving the United States to a renewable energy economy—a monumental task requiring a comprehensive, nation-wide approach.

Which is why the Inflation Reduction Act signed by President Biden in August is such a big deal. Unfortunately, however, the measure failed to achieve the 60-vote threshold for most legislation in the Senate—it was passed using the reconciliation system that allows bills to succeed by a simple majority if they only concern budgetary matters. While the new law promises to rapidly move the economy toward renewable energy, it lacks the breadth of approach in a true environmental law like the Clean Air Act, one that would require a bipartisan effort.

From the perspective of three decades beyond the signing of the CAA Amendments, environmental lawmaking can be divided into three general eras, speaking loosely. The 1970s was the decade in which all the major statutes were passed. The 1980s was a time of reauthorization, revamping, and strengthening. That ended with the Clean Air Act Amendments of 1990. Finally, there has been the period of more than three decades where with some exceptions the action on the major statutes has shifted from sausage-making to implementation.

Before I became editor, there was a tradition in the Forum of showing bills in progress via a cartoon depicting a horse race. Thus in 1984 there might be one horse labeled RCRA, another labeled CWA, or ESA, etc., generally a half dozen in progress. When the CAA amendments passed in 1990, on my watch, we heralded the event with a cartoon on the cover showing a horse collapsed on the finish line, burdened by all the stakeholders riding on its back. Little did I realize at the time, but the metaphor was dead—no longer would we see multiple major environmental bills in the Congress at the same time.

Immediately afterwards, there was talk of reauthorizing the Clean Water Act, and the Forum took note by organizing one of our Debates on what revamped legislation might do, bringing together the EPA Water Office with key stakeholders. The same then for the Resource Conservation and Recovery Act and the division of EPA then known as OSWER. But neither legislative proposal was taken seriously.

It is important to note the exceptions in this period of legislative drought: two minor statutes and a major one. In 1996 the Safe Drinking Water Act was revamped. It required cost-benefit analysis, satisfying conservatives. The same year, the Food Quality Protection Act was signed. It replaced the zero-tolerance Delaney Clause for carcinogenic residues in food. And Congress amended the Toxic Substances Control Act in 2016, succeeding in large part because the existing legislation was so bad, uniting stakeholders.

Why has Congress been silent on all the other major environmental legislation, and for more than 30 years? The answer is the anti-government revolution that took over the Republican Party with the election of Ronald Reagan in 1980. In his first inaugural address, the new president declared the government as the source of our national disquiet, and the GOP has been largely opposed to government’s role in Americans’ economic lives ever since.

The Reagan Revolution did not happen overnight. In fact, as mentioned above, there was a whole decade of strengthening environmental law following his inaugural. EPA had more employees and a larger budget at the end of the Reagan administration than at the start.

The change happened shortly after the CAA amendments were passed in 1990, a last gasp of bipartisanship on a major economic issue. Ever since then, thwarting the opposition seems to be the main strategy, and that leaves the environment usually sitting on the sidelines. The party-line vote has replaced bipartisan consensus—the hallmark of all the major environmental laws. And the filibuster means that major legislation is nearly impossible—both branches need to be in the hands of the same party, including at least 60 seats in the Senate, which rarely happens.

The failure of the 2009 Waxman-Markey climate legislation during the Obama era—it would have established a cap-and-trade system for carbon, modeled after the acid rain program—is a stark example of Congress’s inability to address compelling, large-scale environmental problems through a comprehensive, economy-wide program. That leaves any president only regulatory solutions that are often legally vulnerable, or in the case of the new Inflation Reduction Act, with measures restricted to finessing the budget.

In that regard, in its term-ending decision in West Virginia v. EPA, the Supreme Court nixed an EPA climate rule, declaring that major economic questions cannot be addressed by regulatory agencies without specific congressional consent. And that consent is hard to come by in our present system.

Stephen R. Dujack

A Wonderful World

Twenty-five years before Silent Spring, Rachel Carson published her first essay in The Atlantic on the wonders of ocean life. Titled “Undersea,” the piece showcased Carson’s “commitment to making the reader feel something,” reports Anelise Chen in the same magazine 85 years later.

“Who has known the ocean? Neither you nor I, with our earth-bound senses,” Carson begins her essay. “To sense this world of waters known to the creatures of the sea we must shed our human perceptions of length and breadth and time and place, and enter vicariously into a universe of all-pervading water.”

Elegant and majestic, Carson’s moving descriptions of sea life and its habitats, and her subsequent trilogy of books on the sea, epitomized her “deep conviction that wonder had to be at the foundation of any relationship with nature,” writes Chen. So urgently did Carson seek to inspire wonder that she eventually published a book on the very subject, A Sense of Wonder.

Carson’s insistence on wonder has since been backed by psychology research. Professor Dacher Keltner at the University of California, Berkeley, found that experiencing awe—just a few rungs up on the emotional ladder from wonder—helps people feel happier and less anxious. Whether through connecting with nature or gazing into a starry sky, reaching a state of awe makes people feel more connected to others, and more willing to make sacrifices for the greater good.

Yet Keltner also warns that “our culture today is awe-deprived.” As a result of spending “more and more time working and commuting and less time outdoors and with other people,” he wrote in 2015, “people have become more individualistic, more self-focused, more materialistic, and less connected to others.”

The botanist and writer Robin Wall Kimmerer argues modern technology plays a role, with devices distracting us from the small wonders all around. “Have we become dismissive of what takes no technology but only time and patience to perceive?”

Chen lays out even more severe consequences. “Rather than stopping someplace to get to know its rhythms and cycles, we sever and uproot ourselves by living through screens and portals. All of this helps maintain the harmful illusion that if one environment gets destroyed, there will always be some other ‘away’ to escape into.”

Today, Carson’s message on the importance of wonder rings more true than ever. “Those who contemplate the beauty of the earth find reserves of strength that will endure as long as life lasts,” she writes in A Sense of Wonder. “There is something infinitely healing in the repeated refrains of nature—the assurance that dawn comes after night, and spring after the winter.”

Yet as the climate crisis alters the very seasons Carson spoke of, and warms the seas that she so painstakingly described close to a century ago, her legacy also leaves an unmistakable political footprint. “Perhaps she sensed that, without [wonder], an emotional connection with nature would be impossible,” Chen writes. “Without it, the environmental movement had no hope.”

—Akielly Hu

Notice & Comment is the editors’ page and represents the signatory’s views.

To Manage Our Forests Better, Follow Example of Indigenous

On May 20, the U.S. Forest Service announced a 90-day “pause” on prescribed fires. The ban, instituted after two prescribed fires escaped across control lines and caused the largest wildfire in New Mexico history, set back critical planned burns an entire year.

The Forest Service would use this time, Chief Randy Moore said in a statement, to evaluate its protocols against “the best available science” and “on-the-ground implementation.” He noted that “lessons learned and any resulting program improvements will be in place prior to resuming prescribed burning.” . . .

National conversations about fire policy often ignore the fact that millennia-old models of “best available science” and “on-the-ground-implementation” are right before our eyes: Long before U.S. bureaucrats embraced prescribed burns as a forest management tool, Indigenous stewards across the West tended woodlands by routinely removing excess vegetation, pruning trees, and setting “good fires.”

—Slate.com.

Eco-anxiety may not be the only thing fuelling your insomnia—our warming planet could also affect your ability to nod off. Kelton Minor at the University of Copenhagen, Denmark, and his colleagues analysed data from sleep-tracking wristbands worn by 48,000 people in 68 countries between 2015 and 2017. When compared with local weather data, unusually hot nights were linked to people falling asleep later, rising earlier and sleeping less. We’re already missing out on 44 hours of sleep a year, a figure that is set to worsen as climate change unfolds. —New Scientist

In an Era of Stark Major Questions, Congress Remains on the Sidelines.

The CWA at the Outer Edge of Doable
Author
Ann Pesiri Swanson - Chesapeake Bay Commission
Chesapeake Bay Commission
Current Issue
Issue
6
Parent Article

Chesapeake Bay restoration efforts have been pushing the limits of the doable since the early 1980s. Improving the conditions of the nation’s largest estuary, with a 64,000-square-mile watershed that spans six states and the District of Columbia, was, and remains, an ambitious undertaking. More than 40 years later, the current Total Maximum Daily Load is but the latest example of the ongoing evolution of a restoration effort that has been expanded, refined, analyzed, and evaluated like no other.

This evolution would not have occurred absent the formation and existence of an incredibly resilient basin-wide collaboration among the federal and state governments, the executive and legislative branches, research institutions, and stakeholders of all types. This resultant web of knowledge, policy, and funding provided a support structure for the restoration that has only grown in breadth and depth over time.

Originating with the first Chesapeake Bay Agreement in 1983, the Chesapeake Bay Program Partnership is the administrative home of the restoration effort. The commitments pledged by the signatories to the agreement and its successors, including the most recent in 2014, are voluntary, with few direct consequences for failing to deliver.

Amazingly, much of the collaborative, voluntary approach yielded great successes. In the first 30 years of the restoration, the population of the watershed grew by 43 percent while the nutrient pollution loads to the bay decreased by more than one-fourth. Nevertheless, the progress made was far short of what was needed to attain healthy water quality.

By 2008, it was clear that for additional progress to occur, accountability beyond mere political opinions was necessary. While the Clean Water Act provided for the TMDL process, there was no history of creating or implementing one on such a large, multi-jurisdictional scale. The process that followed tested both the strength of the partnership and the Clean Water Act itself.

The American Farm Bureau Federation sued EPA in 2011, claiming that the level of detail in the bay TMDL, including specific sector allocations and expectations of performance, illegally infringed on states’ rights. In upholding the TMDL, the district court relied on the 30-year history of the collaborative Chesapeake Bay Program, concluding it was, in fact, a successful example of cooperative federalism. While the court observed that cooperative federalism can sometimes be “messy and cumbersome,” the judge noted that it is “one of the most enduring characteristics of pollution control law over the past three decades.”

With the increased level of accountability provided by the TMDL, the program partners, as a whole, took a notable move away from broad policy initiatives, shifting toward inventorying actions taken to reduce pollution. A reporting and verification bureaucracy emerged, one exemplifying the “messy and cumbersome” aspect of cooperative federalism. In spite of this, the TMDL generated remarkable momentum toward pollution reduction.

With the adoption of a series of two-year incremental milestones, the partnership set an implementation target of having practices and programs in place by 2017 to achieve 60 percent of the 84-million-pound nitrogen reduction goal. A 2025 deadline to have 100 percent of the necessary practices and programs in place has further driven momentum.

Nevertheless, challenges remain. A lack of robust state funding in Pennsylvania demonstrates the limits to success when sufficient resources are not available. The TMDL’s exclusive focus on water quality has also diverted attention from other important aspects of the restoration, such as habitat and education. And climate change will only complicate the restoration efforts. Fortunately, the Chesapeake Bay Program continues to provide structure and science to support the effort. It remains the model for similar efforts around the globe.

National Treasure = Federal Obligation
Author
Matthew J. Strickler - Secretary of Natural and Historic Resources for the Commonwealth of Virginia
Secretary of Natural and Historic Resources for the Commonwealth of Virginia
Current Issue
Issue
6
Parent Article

In 2009, President Obama signed the executive order that reenergized a long, but to that point unsuccessful, effort to restore the Chesapeake Bay. Calling the bay a national treasure, Obama put EPA and the six bay watershed states on a course to save the Chesapeake from pollution and degradation by 2025.

The key difference between this effort and others that had failed over the previous thirty years was the requirement to develop a Total Maximum Daily Load — known as a pollution diet — for the bay. Under the Clean Water Act, states have the lead for developing TMDLs, but EPA has the authority to enforce them if state efforts do not produce results.

The Chesapeake Bay TMDL requires states to develop clean water blueprints — Watershed Implementation Plans — that clearly articulate what each state will do to achieve its required pollution reductions affecting the bay. The WIPs provide assurances that each state will produce laws, regulations, and funding necessary to meet its commitments by the 2025 deadline.

Under Governor Northam’s leadership, Virginia has done its part, and is on track to meet its pollution reduction requirements by 2025. Our Phase III WIP is the strongest bay cleanup plan in the commonwealth’s history, and is backed up by tougher nutrient limits for wastewater treatment plants and deadlines for farmers to implement priority conservation practices. Virginia has made record investments in agricultural water quality measures and clean water infrastructure, including dedication of significant American Rescue Plan Act funds.

Unfortunately, not every state has followed suit. In particular, Pennsylvania’s state legislature has failed to take the bay cleanup effort seriously, and has refused to provide the funding or legal authorities necessary for the Keystone State to live up to its commitments under the federal-state bay partnership, even with massive amounts of federal assistance available for this purpose under the ARPA legislation.

As a result, Pennsylvania’s Phase III WIP is woefully inadequate. Even the Trump administration said as much, though his EPA refused to hold Pennsylvania accountable by fulfilling its essential backstop responsibility to enforce the TMDL. Governor Northam had no choice but to join Delaware, Maryland, and the District of Columbia in filing suit against EPA for failing to do its part to ensure that the actions of one partner do not jeopardize the work and investment of the others.

We are currently working toward resolution of this lawsuit, and I am hopeful that we can arrive at an agreement that will avoid the courtroom and put in place measures that will bring Pennsylvania into compliance with the TMDL and the Clean Water Act. Without such an outcome, the most recent and most promising effort to save the Chesapeake Bay will fail.

That outcome is unacceptable to Virginia, and it should be unacceptable to every American who enjoys Chesapeake Bay oysters, blue crabs, and rockfish, vacations along its shores, or simply wants to go fishing or swimming in a local bay tributary.

Saving a national treasure requires national action, and the time for action is now. It has been two years since EPA reviewed state WIPs for adequacy. The Biden administration began by pledging a renewed focus on environmental protection. The bay states need EPA to step in and play the heavy in order to fulfil the promise of President Obama’s 2009 executive order.

Congress has a role to play here as well, by dedicating funding in the pending infrastructure package to help Pennsylvania and other jurisdictions pay for restoration work. Earlier this year, Governor Northam led the bay jurisdictions in asking Congress to fund the Billion for the Bay initiative to jump start the final phase of the Chesapeake cleanup.

Governor Northam and I remain optimistic about the prospects for Chesapeake Bay restoration. But that optimism relies on the federal government’s doing its part to hold all states accountable for reducing water pollution. We will continue working with the Biden EPA to ensure that happens.