This post is part of CPR’s ongoing analysis of the draft reports on protecting and restoring the Chesapeake Bay. See Shana Jones' earlier "EPA's Chesapeake Bay Reports: A First Look"
One of the continuing obstacles to cleaning up the nation’s waterways, including the Chesapeake Bay, is the pollution caused by non-point sources (NPS). In the recently released draft reports on protecting and restoring the Chesapeake Bay, the EPA attempts to address NPS in part by reinvigorating the “reasonable assurance” standard, and on this specific issue, the reports need improvement. Under the language in the draft report, EPA would fall short, as it has in the past, of fulfilling the promise of the standard. While an improvement on past efforts, EPA’s new definition of “reasonable assurance” provides only modest assurance that pollution from NPS will abate.
Unlike point sources (PS) of pollution that originate from discernible, confined, and discrete conveyances, nonpoint sources of pollution are diverse and discharge into water through runoff. While point sources require federal permits to discharge pollution, nonpoint sources have managed to continue unpermitted and unregulated, to the detriment of water quality across the country. To help manage NPS pollution, section 303(d) of the Clean Water Act requires states or the EPA to formulate Total Daily Maximum Load for impaired waters. A TMDL for a pollutant is set at a level to meet applicable water quality standards for a particular waterway, regardless of the source of the pollution. A point source must comply with a TMDL through mandatory permit limitations, while a NPS generally slides under the radar.
One way that the EPA has attempted to regulate nonpoint sources is through the standard of “reasonable assurance.” First introduced to the EPA vernacular in 1991, this promising standard to help control nonpoint source pollution has not fulfilled its potential. In the first attempt, EPA required states to provide it reasonable assurance that “nonpoint source controls will be implemented and maintained or that nonpoint source reductions are demonstrated through an effective monitoring program” in waters impaired by a combination of PS and NPS. However, if a state failed to provide reasonable assurance that the pollution load from NPS would be reduced, then the burden of pollution reduction fell onto point sources—effectively creating an escape hatch for NPS polluters. To seal the escape hatch, in 1997 the EPA reissued guidance that clarified the application of reasonable assurance to waters impaired primarily by NPS.
Full textToday PennFuture released a report finding that the amount of liquid manure applied to farms in Pennsylvania’s Octoraro watershed has increased by 40 percent over the past five years to 108 million gallons annually. The amount of nitrogen produced by livestock in the watershed is equal to the amount generated by approximately 370,000 people each year.
Unlike Las Vegas, what happens in the Octoraro watershed doesn’t stay in the watershed. The watershed, which includes parts of Lancaster and Chester counties, drains into the Susquehanna River, the Chesapeake Bay’s largest tributary. According to the report, 99 percent of all liquid manure produced in the Octoraro watershed is applied on fields within the watershed.
Everyone who follows Chesapeake Bay restoration efforts knows that the federal and state partners in the Bay Program make promises they don’t intend to keep because, ultimately, the states will not hold their citizens accountable for the pollution they create. When it comes to dealing with agriculture, the states have only had the stomach for voluntary approaches. And when the states do regulate, their inspection and enforcement programs are anemic at best. PennFuture’s report provides even more evidence for this dynamic.
Full textMuch of the battle to preserve and protect water resources happens at the state and local levels – in any number of policy choices advocated and made by individuals, organizations, companies, and governments. In recent years, water activists have begun to deploy a new tool geared to shape these decisions. Long-established in legal jurisprudence, the public trust doctrine holds that certain natural resources belong to all and cannot be privately owned or controlled because of their intrinsic value to each individual and society.
Restoring The Trust: Water Resources & The Public Trust Doctrine, A Manual For Advocates, by CPR Member Scholar Alexandra Klass and Policy Analyst Yee Huang, explores the specific application of the public trust doctrine to the protection of surface water and groundwater resources. The Manual introduces water and environmental advocates to both the opportunities and limitations of applying the doctrine to water protection efforts and encourages reconsideration and reassessment of the legal doctrine to confront the challenges facing modern freshwater management at the state level. The Manual identifies areas where the public trust doctrine applies to existing state water laws and in litigation (an accompanying index shows the state constitutional and statutory provisions and cases on water resources & the public trust doctrine)
Yee Huang previewed the report in a series of blog entries:
Enjoy.
Full textThe interstate water wars have gone underground. For more than a century, the U.S. Supreme Court has been the arbiter of last resort to settle fights between states over the right to use surface streams that cross state lines. But now, the high Court may be asked to settle a long-standing feud between Mississippi and Tennessee over a vast underground formation—the Memphis Sand aquifer, which underlies about 10,000 square miles of Arkansas, Tennessee, Mississippi, and Kentucky.
The stakes are high, and the rhetoric inflammatory. Mississippi sued the City of Memphis, seeking hundreds of millions of dollars in damages and claiming that Memphis is stealing Mississippi’s “share” of the aquifer. The problem is that no one has ever determined the two states’ respective “shares” of the aquifer, and that Tennessee (and not merely Memphis) must be part of any lawsuit that makes such a determination. In June, the Fifth Circuit Court of Appeals affirmed the dismissal of Mississippi’s claims in Hood v. City of Memphis, holding that Tennessee is an “indispensable party” to the action. Further, the court said, Mississippi had filed its action in the wrong court because only the Supreme Court has the authority to decide such an interstate dispute.
Mississippi will likely try again, this time in the Supreme Court. That would be a case to watch for at least two reasons.
First, it would present the Supreme Court with its first opportunity to apply the doctrine of “equitable apportionment”—the fair allocation of water among neighboring states—to groundwater. Although the Court has divided up three surface watercourses—the Laramie River (1922), the Delaware River (1931), and the North Platte River (1945)—it has yet to venture underground. According to the Fifth Circuit, the Supreme Court should not treat groundwater any differently than surface water in terms of equitable apportionment because the “Aquifer flows, if slowly, under several states, and it is indistinguishable from a lake bordered by multiple states or from a river bordering several states depending upon it for water.”
Full textCross-posted by permission from Legal Planet.
Federal Judge Donald Molloy in Montana has ordered the Fish and Wildlife Service to restore grizzly bears in the Yellowstone area to the list of endangered and threatened species. Judge Molloy refused to allow FWS to delist the grizzly on the basis of unsupported wishful thinking about the bear’s future.
Grizzly bears once roamed across most of the North American west, but the population in Yellowstone is one of the few remaining remnants in the lower 48. The grizzly was listed as threatened under the Endangered Species Act in 1975, when there were about 1000 bears in the continental US, with an estimated 136 to 312 of those in the Greater Yellowstone Area.
In 2007, with the Yellowstone grizzly population up to about 500, FWS removed it from the protected list. The Greater Yellowstone Coalition Challenged that decision. This week, Judge Molloy ruled in their favor. He identified two major flaws with the delisting decision: a lack of enforceable regulatory mechanisms to assure protection of the population at adequate numbers into the future; and inadequate consideration of the impacts on the grizzly of whitebark pine declines.
The ESA requires the listing of species that are endangered or threatened due to habitat destruction; overutilization; disease or predation; “the inadequacy of existing regulatory mechanisms;” or other factors. 16 U.S.C. § 1533(a)(1). In order to remove a species from the list, FWS must conclude that the species no longer qualifies for listing on the basis of those same factors.
Full textCross-posted by permission from Legal Planet.
In June, President Obama created an Interagency Ocean Policy Task Force, and directed it to make recommendations for a national ocean policy. The Task Force got right to work. Now, after convening two dozen expert roundtables, inviting public comment, and holding the first of six public sessions, the Task Force has issued an Interim Report recommending key elements of a national policy.
The Interim Report is very encouraging. If the Task Force follows this blueprint in fleshing out a national policy, and if it can bring the executive and legislative branches along, the result will be a clear national policy of putting environmental sustainability first, and an effective institutional framework for putting that policy into practice. The Interim report correctly identifies the need for “a strong, clear, overarching policy mandate” and “high-level direction and policy guidance from a clearly designated and identifiable authority,” combined with improved coordination within the executive branch as well as with states, tribes, and other authorities.
Substantively, the Task Force would clearly put environmental protection first in that “overarching policy mandate.” It recommends that national ocean policy rest on a commitment to stewardship that “ensures that the ocean, our coasts, and the Great Lakes are healthy and resilient, safe and productive, and understood and treasured.” The first element of the proposed national policy would be to”protect, maintain, and restore the health and biological diversity of ocean, coastal, and Great Lakes ecosystems and resources.” It sets out three “stewardship principles” to guide decisions about uses of the oceans:
(1) “As responsible environmental stewards we will protect, maintain, and restore the health, productivity, and resiliency of ocean, coastal, and Great Lakes ecosystems (including their waters and resources);”
(2) “Decisions affecting the ocean, our coasts, and the Great Lakes should be informed by and consistent with the best available science,” and guided by a precautionary approach;
Full text(3) “. . . environmental damage should be avoided wherever practicable and . . . environmental costs should be internalized, taking into account the approach that those who cause environmental damage should generally bear the cost of that damage.”
Secretary of the Interior Ken Salazar signed a secretarial order on Monday establishing a new department-wide strategy for gathering data and developing management options to help managers cope with the effects of climate change on resources governed by the Interior Department. The order seeks to initiate three components:
The secretarial order also replaces Secretarial Order No. 3226 created in January 2009 by the outgoing Bush administration and reinstates Secretarial Order No. 3226 created in January 2001 by the outgoing Clinton administration. The Clinton administration had ordered each Department of Interior bureau to consider and analyze potential climate change impacts when undertaking long-range planning efforts or multi-year management plans. The Bush Administration's DOI essentially ignored that, and now Secretary Salazar is seeking to resurrect the directive.
The program certainly is an improvement on the Department’s preceding approach to addressing the effects of climate change.
The Department’s various bureaus have often simply ignored the effects of climate change in planning or permitting activities, and even those that have been analyzing its effects have failed to develop any management strategies to prepare for and minimize these effects.
Full textToday’s New York Times article about excess manure in the water is a stark reminder of what can happen when an environmental problem isn’t addressed: people get really sick.
While the article is shocking -- it describes how families in Wisconsin living close to dairy farms suffered from chronic diarrhea, stomach problems, and severe ear infections from parasites and bacteria that seeped into the drinking water -- it restates what a lot of people have known for a long time. We are failing to protect people from agricultural runoff because the Clean Water Act does not address it adequately, as Bill Andreen discussed just this week.
Meanwhile, in the case of Concentrated Animal Feeding Operations (CAFOs), which are covered by the Clean Water Act, EPA has looked away for years. The problem is acute enough that the Government Accountability Office took EPA to task for sticking its head in the sand. A 2008 GAO report found that “no federal agency collects accurate and consistent data on the number, size, and location of CAFOs,” in spite of the fact that “large farms can produce more raw waste than the human population of a large city.”
Full textSunday’s New York Times article about the neglect of our clean water laws included a shocking example of how a regulatory gap in the Clean Water Act can harm public health. For example, the article referred to water supplies in parts of the Farm Belt that are contaminated by dangerous levels of pesticides, which originate with agricultural runoff and cannot be corrected by enforcement of the Clean Water Act. Although the Act provides a comprehensive regulatory program for point source discharges of pollution — discharges from pipes and other discernible conveyances — it does not directly regulate generalized runoff from farms, forestry activities, overflowing septic tanks, parking lots, and mining operations, something that is generally referred to as nonpoint source water pollution. As a result, nonpoint source pollution, especially from agriculture, has become the chief impediment to achieving national water quality objectives. Water pollution from nonpoint sources dwarfs all other sources by volume and often adds dangerous pesticides, other toxics, and fecal contaminants to our waters.
The Clean Water Act today requires that the states identify those rivers and other waters that are unable to meet water quality standards because of nonpoint source pollution. The states are then directed to develop Best Management Plans (BMPs) to address these nonpoint source problems. This program, unfortunately, has not worked well. One major weakness is that many states have adopted non-regulatory approaches, including voluntary BMPs, to deal with the problem. These voluntary programs have not produced significant progress, and the CWA gives EPA only limited power to deal with such ineffective approaches. EPA can only approve or disapprove of an inadequate state plan; it cannot promulgate a federal plan in lieu of an inadequate state plan. Thus, EPA has been placed in an unenviable position. It can disapprove a state plan and thus withhold the funding that a state needs to make at least some progress in the area, or it can approve an inadequate plan. The result has been predictable.
Congress, therefore, needs to revisit the problem of nonpoint source pollution. States need to review their waters on a regular schedule in order to update the list of those which are impaired due to nonpoint source discharges. The Best Management Plans required by the Act must require enforceable conditions and requirements. If a state fails to include such conditions and requirements, EPA must be empowered to promulgate a federal BMP for the state. Only in this way can EPA ensure that effective nonpoint source controls are established. Finally, Congress must stipulate that the states establish credible enforcement programs for their nonpoint sources and give EPA the authority and resources to backstop these enforcement efforts. It is time to complete the work that Congress undertook in 1972 when the original Act was passed. It is time to fill the gap that has stood as one of the primary impediments to achieving the nation’s dream of actually having fishable and swimmable streams.
Full textSunday’s New York Times article about the neglect of our clean water laws came as a timely reminder that, no matter how well articulated our environmental laws may be, it takes consistent, vigorous enforcement to ensure compliance with these statutory regimes. Unfortunately, as the article illustrates, state and federal enforcement of the Clean Water Act has languished during the past decade. Not only have governmental resources been inadequate, but all too often the will to enforce the law has been absent. Although water pollution violations often pose grave hazards to public health, the political climate in many state capitals seems to have favored polluters, even those who repeatedly violate the law, and the U.S. EPA appears to have been unwilling, at least up until the current administration perhaps, to force these recalcitrant states to perform their duties under the Clean Water Act.
While the article is sure to draw attention to this recent enforcement hiatus, the lapse of the past decade is not an aberration. The first enforcement lapse occurred during the early years of the Reagan administration when state and federal enforcement of the Clean Water Act fell dramatically. This pattern was repeated after the mid-term elections in 1994 when both state and federal enforcement efforts slipped badly yet again.
These periodic enforcement breakdowns produce confusion in the regulated community, encourage non-compliance, and subject our environmental agencies to ridicule. Such lapses also breach an implied social contract with those regulated entities who, relying upon responsible law enforcement, have invested substantial amounts of time and money to comply with the law. More importantly, however, the lack of effective enforcement breaks faith with the public that depends upon these agencies to provide clean and healthy water.
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