The Clean Water Act & nonpoint source pollution in the U.S.

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1 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

2 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

3 Water Quality Regulation in the U.S. Pophistorydig.com time.com

4 Current Problems - Toledo, Ohio Lake Erie Lake Erie water intake structure and algal bloom. Photograph by NASA Earth Observatory

5 Gulf Dead Zone

6 President of the United States Department of Defense Department of Interior Environmental Protection Agency Department of Agriculture Department of Energy Department of Commerce Dept. of Homeland Security Water Quality Regulation U.S. Army Corps of Engineers U.S. Geological Survey U.S. Fish & Wildlife Service Natural Resources Conservation Service U.S. Forest Service Federal Energy Regulatory Commission Coastal Zone Management National Marine Fisheries Service U.S. Coast Guard Federal Emergency Management Agency National Park Service National Weather Service

7 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

8 Agencies act like all three branches of government Federal Laws and Agency Administration 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

9 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

10 Brief history of CWA Water Pollution Control Act (1948) protected human health, state focus of implementation, little federal oversight WPCA Amendments of 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

11 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)

12 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 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

13 The Federal Water Pollution Control Act (1948) The Clean Water Act (CWA) 33 U.S.C 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

14 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 lay out how you can do projects, amendments, discharge into federal water and the requirements to do so under the law

15 Section U.S. Code 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)

16 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

17 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 (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.

18 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.

19 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)

20 Bacteria monitoring in the White Clay Creek ( )

7 Sites 4, 5, 9 6 Fecal Coliform /100ml Site ID August 2012 July 2013 August 2013 Geo Geo Geo Mea Mean Min Max Mean Min Max n Min Max 4 110 10 430 1466 340 44000 5 230 56

21 7 Sites 4, 5, 9 6 Fecal Coliform /100ml Site ID August 2012 July 2013 August 2013 Geo Geo Geo Mea Mean Min Max Mean Min Max n Min Max E.Coli/100ml July 2013 August 2013 Geo Mean Min Max Geo Mean Min Max

22 Section U.S. Code 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

23 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 affect use, degradation, or destruction could interstate or foreign commerce Tributaries of waters of the U.S. Wetlands adjacent to waters of the U.S.

24 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.

25 Ditches channels (and wetlands) dug in uplands are exempt UNLESS the connection: Man made features Has hydrologic connection Extends the ordinary high water Reroute flow Supports relatively permanent flows

26 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

27 What are wetlands? Image courtesy of the City of Caspar, Wyoming

28 What is a wetland? Three components: Vegetation Soils Hydrology Images from ww.nps.gov and Image from USACE bolinq.wordpress.com

29 HYDROLOGY VEGETATION A lot of tiny words that you cannot read SOILS

30 Wetlands different names and functions Images

31 The U.S. Army Corps of Engineers (USACE) jurisdiction: Federal jurisdiction under the CWA 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.

32 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.

33 Incorporated areas may have their own protections. Local jurisdiction 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.

34 Federal jurisdiction navigable Image from USACE

35 Wetlands with connectivity

36 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

37 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.

38 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?

39 EPA and USACE will continue to assert jurisdiction over: 2007/2008/2011 guidance Traditional navigable waters (TNW) Wetlands adjacent to TNWs Non-navigable tributaries of TNWs that are relatively permanent waters (RPW) Wetlands that abut RPWs

40 EPA and USACE - decide jurisdiction based on a fact-specific analysis to determine if a significant nexus exists USACE and EPA Non-navigable tributaries that do not exhibit relatively permanent flows (non-rpw) Adjacent/abutting wetlands to these non-rpw tributaries

41 Significant nexus

42 Significant Nexus Test Owner Agent collects data, prepares and submits delineation with professional opinion District sends opinion to USACE HQ and USEPA for final approval or rejects opinion Comments, questions, more data USACE reviews opinion and comments District office reviews and accepts the opinion or returns it to the USACE

43 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

44 The rule is contentions

More regulation Ties exemptions to voluntary plans Exemptions are not part of regulatory language Regulate puddles Farm Bureau concern Under the proposed rule, nearly

45 More regulation Ties exemptions to voluntary plans Exemptions are not part of regulatory language Regulate puddles Farm Bureau concern 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.

46 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

47 Ditch in Dover, DE

48 2014 site of Dover High School Google maps 2014

49 Dover Sun

50 Crop land in Sussex Co Delaware

51 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.

52 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 th 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.

53 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 (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

54 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.

55 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.

56 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.

57 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). Writ of Certiorari 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.

US Army Corps of Engineers BUILDING STRONG

US Army Corps of Engineers BUILDING STRONG US Army Corps of Engineers Clean Water Act Jurisdictional Discussion for the Council of State Governments Presented by: Stacey M. Jensen HQUSACE Regulatory CoP Donna Downing USEPA HQ 21 February 2013 US