Cardin/Cummings and the Future of Clean Water

This is the second of my policy statements concerning water. My apologies for the delay, we have been busy at DC WATER!

Left on the table since the 1972 amendments to the Federal Water Pollution Control Act (amendments known as the Clean Water Act) is the fundamental question of reducing pollutants from non-point sources. In 1972, the most significant and direct threat to our waterways was virtually untreated discharges of wastes from discrete discharge pipes – so-called point sources that are typically from either private industries or publicly owned treatment plants. I have a personal sense of the risks from that era, since I visited the Cuyahoga River in 1969 with my 4th grade class – and saw the sludges and chemicals fouling the River in the same year it caught on fire more than once – burning for a week in one instance.

The CWA therefore focused its firepower on implementing a national program to require technology-based improvements to treatment requirements. Over the 40 years since, these provisions have in my judgment been one of the great success stories of progressive government. While many Rivers are not yet fishable and swimmable (the goal of the CWA), we have made absolutely remarkable progress. I understand, for example, that several species of trout are regularly spotted in the Cuyahoga – and they are alive!

Yet we also know that we will never actually achieve fishable and swimmable waterways until we expand the tools that have worked successfully for point sources to pollutants that come from all the rest of landscape. Every time it rains, rainwater carries anything that is found on the ground to nearby waterways (except in Combined Sewer Systems ironically, at least until an overflow point – see last post). This will include trash, oil, grease and other petroleum byproducts, heavy metals and engine coolants, as well as pesticides, fertilizers, paints and anything else we leave or put on the land. Taking the Chesapeake Bay as an example, this so-called non-point source pollution from developed and agricultural lands comprises 50% of the pollutants still flowing to the Bay in 2008, while point sources contribute 21%. (Interestingly, agricultural NPS was reduced from 1985 to 2008 from 45% to 39%, and NPS from developed lands increased from 9 to 11% In the same time period.)

The bottom line is that even if we were to completely eliminate pollutants from point sources, which would be exorbitantly expensive, the Chesapeake (and other waterways) would still be impaired. We will not achieve desirable water quality in this country unless we match the progressive achievement of the last four decades from point sources with a parallel success story from non point sources.

The challenge is that measuring, designing and implementing NPS reductions from thousands upon thousands of parcels of developed and agricultural lands is much, much more difficult than monitoring the effluent coming from a relatively small number of specific facilities. This challenge has led USEPA, and state and local regulatory agencies to develop NPS programs that are in essence voluntary. Credit must be given to the significant improvements that have been achieved by developers and farmers within a voluntary system. But the reductions have not been nearly enough.

The Chesapeake Bay is perhaps the most studied waterbody in the world. Despite extraordinary attention, significant efforts and various plans and commissions, the Bay is not yet clean, and has not met goals that have been established for water quality and ecological health for several decades. In fact, DC Water is the only enterprise that met the 2010 goals for the Chesapeake Bay – due primarily to about $1billion in upgrades to the Blue Plains Advanced Wastewater Treatment Plant over the last decade. Although more progress is possible from point sources, virtually every expert that has studied the Bay understands that we will not achieve our goals for the Bay unless we reduce pollutants from non-point sources – particularly run-off from development and agricultural lands.

With courage and vision parallel to efforts in 1972, Senator Cardin and Representative Cummings from Maryland have stepped up to propose a ground-breaking solution. Employing the need to reauthorize the section of the CWA that governs the Chesapeake program (Section 117), parallel bills in the House (H.R 3852 ) and Senate (S. 1816) would seize the moment to take the steps that provide the tools that are necessary to clean-up the Bay. The highlights from S. 1816/H.R. 3852:

Requires Bay states and the District of Columbia to formulate and implement watershed implementation plans (WIPs) designed to attain the pollution limitations of nitrogen, phosphorous, and sediment cap loads identified in the Chesapeake Bay TMDL;
Requires Bay states to submit biennial progress reports on the extent to which WIPs have been implemented – based on the 2 year milestone structure already employed by the Chesapeake Bay Program;
Enables the USEPA to develop a federal WIP if a Bay state fails to submit a WIP or a biennial report, or fails to correct a previously missed 2-year commitment in its WIP;
Authorizes $1.5 billion in funding to support municipal programs within Bay states to reduce NPS pollution from developed lands;
Establishes requirements to achieve relevant standards from federal lands and buildings;
Provides a deadline for achievement of clean-up standards by 2020, and provides citizen suit provisions connected to mandates in the legislation.
In short, the WIPs are conceived to implement enforceable reductions on all sources of pollutants identified in the TMDL process. (TMDL stands for Total Maximum Daily Load, which is a component of the CWA that governs allocations of pollutant reductions from all sources to water bodies that are still impaired after technology-based limitations have been achieved by point sources.) The concept is that WIPs will therefore include enforceable limits on NPS pollution from developed lands and agriculture. If a state does not develop a suitable plan, or a plan is not successful after an opportunity to cure, the USEPA will have the authority to step-in and devise a federal WIP to achieve identified goals. This is the linchpin to develop enforceable limitations on NPS pollution first for the Chesapeake, and then after we had some operational experience, for the rest of the nation with the next round of legislative action.

Not surprisingly, development and agricultural interests have expressed significant reservations about this bill – particularly enforceable WIPs with two year milestones. Farming interests, for example, raise the existing economic challenges farmers face and developers raise the issue of costs and the market.

For farmers, I have some understanding of these challenges, in part because I ran a small livestock farm for 7 years, and in a previous job owned the land that built into the largest Community Supported Agricultural farm in the country. (This is the Honey Brook Organic Farm, run by a fabulous local organic farmer. I agree that farming is a difficult task, but fundamentally do not agree that farmers face any greater economic challenges than the millions of residents in urban areas who are on fixed and low incomes – who must pay for the reductions that are required of point sources. A major untold story of our protection of clean water is how much of the cost and responsibility has been placed at the feet of our urban and suburban residents – frequently some of the poorest neighborhoods in the country. Continuing to increase costs faced by urban dwellers makes this option less desirable – which is exactly the opposite encouragement we want to stem the tide of urban sprawl.

For developers – as long as there is a performance floor that is the same across the Bay, increased costs will be uniform and will not allow any jurisdiction or developers to push a race to the bottom to weaken protections to attract growth. If all developers and jurisdictions require similar techniques to manage stormwater, then the market consequence is shared and uniform. This issue does raise the parallel point that development in cities is usually more costly in any event, and it is more difficult to retain stormwater on-site in a city landscape than in the country. Again, that will be a topic of a later post, because I am worried that MS4 permits for urban areas will drive development away from just the places where we would like to see it happen.

Folks that I respect have raised the concern that the WIPs would take reduction targets that are subject to “best management practices” and enshrine them as numerical requirements (as opposed to a level of effort) through the formal workings of the CWA. Moreover, many are concerned that if agricultural and development sources do not achieve targeted reductions, the WIPs will be revised to refocus attention on point sources regardless of cost. Both of these concerns are worthy of attention – and on the first in particular, I hope to explore how we can be sure to include “level of effort” flexibility in how any regulated party complies. I do not think anyone wants to bankrupt municipalities, industries, farmers or developers by requiring discharge reductions for which there is either no known technique to achieve, or is at a cost that is wholly out of proportion to the benefit.

With these caveats in mind, I still want to voice my strong support for the Cardin/Cummings approach, and my hope that maybe with some modifications our entire industry can jointly support this effort going forward. Even with the challenges, if we do not devise a plan to achieve measurable reductions from non-point sources, we simply will never have water in this country that is fishable and swimmable. This is the clean water battle of our time and we need to step up just as our forerunners did in 1972.

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