The Clean Water Act & nonpoint source

pollution in the U.S. Presented by Jennifer Egan, P.G., PhD candidate,

Water Science and Policy Program PLSC 421/621 March 21, 2016

Outline

Water quality regulation in the U.S. Function of agencies in administering law CWA sections 402, 404, 303 What about nonpoint sources? What is a TMDL? Waters of the United States (statutory and

regulatory definition) Jurisdiction What are wetlands? Proposed EPA rule The “Bay TMDL” case

Water Quality Regulation in the U.S.

Pophistorydig.com

time.com

Current Problems - Toledo, Ohio Lake Erie

Lake Erie water intake structure and algal bloom. http://news.nationalgeographic.com

Photograph by NASA Earth Observatory

Gulf Dead Zone

Water Quality Regulation

President of the

United States

Department of

Defense

Department of

Interior

Environmental Protection

Agency

Department of

Agriculture

Department of

Energy

U.S. Army Corps of

Engineers

U.S. Geological

Survey

U.S. Fish & Wildlife Service

National Park

Service

Natural Resources

Conservation Service

Federal Energy

Regulatory Commission

Department of

Commerce

U.S. Forest Service

Dept. of Homeland Security

Coastal Zone Management

National Marine

Fisheries Service

U.S. Coast Guard

Federal Emergency

Management Agency

National Weather Service

Federal Regulation

Federal Water Pollution Control Act

and Amendments (1948)

“Clean Water Act” (1972)

Law (statute) Agency Regulation Standards Guidance Rule

The U.S. Supreme Court

Federal Laws and Agency Administration

Agencies act like all three branches of government

Administrative Procedures Act (APA, 1946) Governs how agencies propose regulations Sets up a process for courts to review agency

regulation and decisions (Judicial Review) Arbitrary and Capricious Abuse of discretion Not in accordance with the law

Requirement for public review and involvement Strict procedures for rule making and adjudication

Chevron Rule (1984)

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 Legal test for agency discretion Does the statute resolve the question? Court determines if agency

interpretation is reasonable or permissible

Brief history of CWA

Water Pollution Control Act (1948) protected human health, state focus of

implementation, little federal oversight

WPCA Amendments of 1956-1966 1956 and 1961 strengthened federal role Funding of waste water treatment works

Water Quality Act (1965) Required states to develop standards for interstate

waters by 1967 Waste load allocations for sources ½ states developed standards by 1971 No enforcement civil or criminal if states did not create

standards

Brief history of CWA

1970 USEPA formed Refuse Act Permit Program (RAPP) created under 1899

Rivers and Harbors Act (RHA) RHA prohibited discharge of refuse in navigable

waters or tributaries RHA secretary of Army may issue permits for

refuse RAPP -December 1970 mandated by presidential

order Any discharge needed a joint permit from USEPA

and Army Corps of Engineers Effluent limits arbitrarily determined by USACE December 1971 RAPP struck down by Ohio Federal

Dist. Court (Kalur v. Resor)

Brief history of CWA

Federal Water Pollution Control Act Amendments of 1972, 1977

“…restore and maintain the chemical, physical, and biological integrity of the Nation's waters…"

States requirements states requirements to meet the Act standards specific uses fishable, swimmable, drinkable numeric and narrative water quality criteria in order to protect uses identify waters that do not meet water quality

standards 303(d)(1)(C) list EPA reviews – approve/disapprove

1977 - Suit by NRDC against EPA to enforce required standards and guidelines for toxics

Pollutants further defined – conventional (5), toxic (126, 1981), non-conventional (5) includes nitrogen and phosphorous

The Federal Water Pollution Control Act (1948) The Clean Water Act (CWA) 33 U.S.C. §1251 et seq. (1972)

Basic regulatory premise from CWA:

1) Illegal to discharge ANY pollutants from a point source to Waters of the U.S. without a permit

2) Lets EPA set and regulate quality standards for surface waters

EPA implements the CWA through guidance, rules, monitoring states, and enforcement actions

Permits for discharge under CWA

Multiple sections of the CWA defining what can and cannot be done in federal waters The permits only apply to point sources, non

point sources are exempt by definition Permits necessary for discharge to surface

waters (does not cover ground water, however state laws typically do) Section 402 and 404 - lay out how you can do

projects, amendments, discharge into federal water and the requirements to do so under the law

Section 402

33 U.S. Code § 1342 - National polluant discharge elimination system (NPDES)

Permits for point sources - construction sites; municipal, industrial, and commercial facilities discharging wastewater or stormwater directly from a point source (a pipe, ditch or channel) into a surface water of the United States (a lake, river, and/or ocean)

Includes sources that seem “nonpoint”

Municipal Separate Stormwater Sewer Systems (MS4) , Concentrated Animal Feed Operations (CAFOs)

What about nonpoint sources? (Section 303(d), (b))

Several sections also identify states authority to identify and control nonpoint sources however agricultural nonpoint sources are exempt by definition.

Watershed Improvement Plans (Section 117(g)(1)) - to achieve and maintain the nutrient, water quality, habitat, and ecosystem restoration and protection goals of the Chesapeake Bay Agreement.

Section 303 requires listing of “impaired waters”

What about nonpoint sources?

Excess nutrient runoff from agricultural fields is considered the leading nonpoint source of impairment in the Chesapeake Bay but is specifically exempted by definition in the Clean Water Act as “agricultural stormwater” or “irrigation return flows” (Federal Water Pollution Control Act U.S.C 33 § 1362 (14).

Key point is precipitation and classification of operation.

Concerned Area Residents for the Environment v. Southview Farm (1994) and Alt v. EPA (2013) provide examples.

What about nonpoint sources?

A total maximum daily load (TMDL):

specifies the allowable pollutant loading from all contributing sources (e.g., point sources, nonpoint sources, and natural background) at a level necessary to attain the applicable water quality standards with seasonal variations and a margin of safety that takes into account any lack of knowledge concerning the relationship between the sources of the pollutant and water quality.

What about nonpoint sources?

TMDL = WLA + LA + MOS

Waste load allocations (WLA) from point sources and

Load allocations (LA) from nonpoint sources

A margin of safety (MOS)

If ambient water quality sampling in a waterbody indicates it is impaired then models are run to designate the allocation for the TMDL and a plan is developed to reduce pollution. (Section 303)

Bacteria monitoring in the White Clay Creek (2012-2016)

Sites 4, 5, 9

4 5

6

9

7

Fecal Coliform /100ml

August 2012 July 2013 August 2013

Site ID

Geo Mean Min Max

Geo Mean Min Max

Geo Mean Min Max

4 110 10 430 1466 340 44000

5 230 56 670 2132 410 45000

9 757 291 31000 561 140 3700

E.Coli/100ml

July 2013 August 2013 Geo

Mean Min Max Geo

Mean Min Max

4 292 45 6700

5 449 39 1414

9 115 12 687 332 75 1046

4 5

6

9

7

Section 404

33 U.S. Code § 1344 - Permits for dredged or fill material

Permits for activity in federal waters Section 404(f) exempts some activities from regulation farming, ranching and silviculture practices

“Waters of the U.S.” (WOTUS)

All navigable and interstate waters including wetlands

Impoundments of waters of the U.S.

Territorial seas

All other waters in which the

use, degradation, or destruction could affect

interstate or foreign commerce

Tributaries of waters of the U.S.

Wetlands adjacent to waters of the U.S.

Jurisdiction (dictionary.com)

1.the right, power, or authority to administer justice by hearing and determining controversies.

2.power; authority; control.

3.the extent or range of judicial, law enforcement, or other authority.

4.the territory over which authority is exercised.

“Man made” features

Ditches channels (and wetlands) dug in uplands are exempt UNLESS the connection:

Has hydrologic connection

Extends the ordinary high water

Reroute flow

Supports relatively permanent flows

Exemptions (more about these with the “rule”)

Swales or erosional features

Drainage ditches, including roadside ditches

Irrigation ditches

Artificial lakes or ponds

Ornamental bodies of water in upland areas

What are wetlands?

Image courtesy of the City of Caspar, Wyoming http://www.adammandelman.net/

What is a wetland? Three components: Vegetation Soils Hydrology

Image from USACE

http://www.spk.usace.army.mil

Images from ww.nps.gov and www.soil.ncsu.edu

bolinq.wordpress.com

A lot of tiny words that you cannot read

HYDROLOGY VEGETATION SOILS

Wetlands different names and functions

Images www.epa.gov, www.dem.ri.gov

Federal jurisdiction under the CWA

The U.S. Army Corps of Engineers (USACE)

jurisdiction:

Fill (or excavation) below the ordinary high water and mean high tide line of tidal areas (Rivers and Harbors Act).

Wetlands that have a connection to waters of the U.S.

State jurisdiction

Maryland and Pennsylvania

Regulatory authority over wetlands, including isolated wetlands and most waterways.

New Jersey

Regulatory authority over wetlands, including isolated wetlands and most waterways.

Delaware

Regulatory authority over tidal wetlands, most waterways and wetlands >400 contiguous acres.

Local jurisdiction

Incorporated areas may have their own protections.

New Castle, Kent, and Sussex County

Require delineation of wetlands and regulated waters as part of the development process.

If no wetlands or jurisdictional waters are on the property then a “letter of no findings” can be issued.

Federal jurisdiction “navigable”

Image from USACE

http://www.spk.usace.army.mil

Wetlands with “connectivity”

Wetlands- Supreme Court and WOTUS Jurisdictional Determination

Influenced by two major court cases:

1) Solid Waste Agency of Northern Cook County

(SWANCC) Decision in 2001 Invalidated the use of the “migratory bird

rule”

2) Rapanos Decision in June 2006 Five separate opinions were issued No majority

Rapanos – Scalia opinion

Justice Scalia stated that “waters of the United States” extended beyond traditional navigable waters to include “relatively permanent, standing or flowing bodies of water” and only wetlands with a “continuous surface connection” to other jurisdictional waters are considered “adjacent.”

Rapanos – Kennedy opinion

Justice Kennedy’s concurring opinion “waters of the United States” included wetlands that had a “significant nexus” to traditional navigable waters.

What is a “significant nexus”?

2007/2008/2011 guidance

EPA and USACE will continue to assert jurisdiction over:

Traditional navigable waters (TNW)

Wetlands adjacent to TNWs

Non-navigable tributaries of TNWs that are relatively permanent waters (RPW)

Wetlands that abut RPWs

USACE and EPA

EPA and USACE - decide jurisdiction based on a

fact-specific analysis to determine if a

“significant nexus” exists

Non-navigable tributaries that do not exhibit relatively permanent flows (non-RPW)

Adjacent/abutting wetlands to these non-RPW tributaries

Significant nexus

http://greengroundswell.com/clean-water-act-proposed-rule-add-your-support/2014/09/25/

District sends opinion to USACE HQ and USEPA for final approval or rejects opinion

Owner Agent collects data, prepares and submits delineation with professional opinion

USACE reviews opinion and comments

District office reviews and accepts the opinion or returns it to the USACE

Comments, questions, more data

Significant Nexus Test

WOTUS proposed rule for clarification based on court rule, practice, guidance

Rule makes administrative definition consistent

with the CWA, legal rulings, the agencies’ expertise and experience, and science Clarify by rule (not guidance) what is and what

is not subject to jurisdiction under Clean Water Act Change Code of Federal Regulation (not CWA) No new definitions of Waters of the U.S.,

exemptions for agriculture remain “Codifies” long standing practice and guidance

The rule is contentions

Farm Bureau concern

More regulation

Ties exemptions to voluntary plans

Exemptions are not part of regulatory language

Regulate “puddles”

“Under the proposed

rule, nearly every drop of

water that falls

would be regulated

by the federal government

the Environmental

Protection Agency and the

U.S. Army Corps of Engineers.” American Farm Bureau.

EPA and USACE concern

Some jurisdictions have not observed the guidance therefore previous areas that were not jurisdictional will be found jurisdictional (~1,300 acres nationwide)

Uneven application of Rapanos guidance led to different decisions nationwide

Ditch in Dover, DE

Google maps 2014

2014 site of Dover High School

Dover Sun

Crop land in Sussex Co Delaware

Ditches in the same area

Court jurisdiction controversy

The rule became effective on August 28, 2015, but on October 9, a federal court blocked the rule’s implementation nationwide. February 2016 6th circuit court -Considered the matter is within its jurisdiction and is hearing the case. -Parties seeking a stay are arguing that this is district court matter. -Rule has been stayed in 13 states.

The “Bay TMDL” Case

The states set TMDLs for impaired waters

40,000 (2013) that do not meet the fishable, swimmable, and potable designations

Executive Order 13508 (2009) - 2 year milestones and federal involvement

In 2010, due to “insufficient progress and continued poor water quality in the Chesapeake Bay and its tidal tributaries” the EPA set a regional, bay-wide TMDL in 2010 based on the Chesapeake Bay state’s TMDLs

The “Bay TMDL”

January 2011 American Farm Bureau Federation (AFBF) v. EPA (PA district court)

National Association of Homebuilders (NAHB)

Chesapeake Bay Foundation, National Association of Clean Water Agencies and Pennsylvania Municipal Authorities Association joined with the EPA.

The “Bay TMDL”

First claim for relief

The AFBF’s first claim asserts that the EPA’s Final Chesapeake Bay TMDL is arbitrary and capricious and an abuse of discretion.

Second claim for relief

The AFBF’s second claim is that EPA failed to provide for public notice and comment required by the Administrative Procedures Act.

Third claim for relief

The third claim is that the EPA’s final TMDL violates the Clean Water Act and EPA regulations.

Fourth claim for relief

The fourth claim from the AFBF is that the Chesapeake Bay Final TMDL is unlawful.

First decision, appeal, and writ of certiorari

September 2013 U.S. District Court

ruled the pollution limits established by EPA were within the agency’s duties.

The TMDL displayed commitment to cooperative federalism.

AFBF then appealed to the Third Circuit Court of Appeals.

In July 2015, the appeals court upheld the district court ruling.

AFBF filed a petition with the Supreme Court, which decided not to hear the case.

Writ of Certiorari

A Petition for Certiorari from the Supreme Court of the U.S. (SCOTUS) is granted in few selected cases (less than 100 per year out of 5000).

The decision means the appeals court ruling from 2015 stands. The ruling states that the EPA did not overstep its authority in efforts to uphold the TMDL for the Chesapeake Bay Watershed.