United States
Environmental Protection
Agency
Office of Water
Washington, D.C.
EPA 800-R-94-001
February 1994
PRESIDENT CLINTON'S
CLEAN WATER INITIATIVE
Recycled/Recyclable
Printed with Soy/Canola Ink on paper that
contains at least 50% recycled fiber
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ACKNOWLEDGEMENTS
The President's Clean Water Initiative was developed through the coordinated
effort of the following federal agencies:
Office of Environmental Policy
Council of Economic Advisors
Office of Management and Budget
National Economic Council
Environmental Protection Agency
Department of Agriculture
Department of Commerce
Department of Defense
Department of Energy
Department of Health and Human Services
Department of Interior
Department of Justice
Department of Transportation
Printing of this document is provided courtesy of the Environmental Protection
Agency.
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TABLE OF CONTENTS
PRESIDENT CLINTON'S CLEAN WATER INITIATIVE iv
CHAPTER 1. FUNDING ISSUES
Expanding Eligibility for SRF Funding 1
Clarifying/Limiting the Eligibility
of Certain Activities for SRF Funding 3
Modifying Project Requirements 4
Project Targeting and Priority Setting 6
Meeting the Needs of Disadvantaged Communities 8
Capitalization Options for SRF Program 11
Permit Fees for the NPDES,
Pretreatment and Sludge Programs 13
Section 404 Permit Fees 16
Laboratory Performance Evaluation Fees 17
CHAPTER 2. TOXICS ISSUES
Pollutant Discharge Prohibitions 19
Water Quality Criteria Development 24
State Water Quality Standards Reviews 27
Antidegradation 31
Pollution Prevention in the Effluent Guidelines Program 34
CHAPTER 3. POLLUTED RUN-OFF AND OTHER FORMS OF
NONPOINT SOURCE POLLUTION
Nonpoint Source Pollution in Brief . 35
Strengthened State Programs 37
Funding and Financing 42
Federal Lands and Activities 44
Irrigation Return Flows 45
CHAPTER 4. WATERSHEDS
Watershed Management in Brief 47
State Watershed Programs 49
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Minimum Elements for a Watershed Management Plan 54
The Federal Role in Watershed Management 57
Incentives for Watershed Management 61
Watershed Market-Based Approach 66
Restoration of Urban Waters 70
CHAPTERS. ENFORCEMENT
Civil Judicial Enforcement Authorities 72
Federal Facilities 78
Criminal Enforcement 82
Improving Administrative Enforcement 85
Clean Water Act Citizen Suits 90
CWA Imminent and Substantial Endangerment Provision 93
CWA §311: Oil and Hazardous Substances 96
Contractor Listing 98
Supplemental Environmental Projects 100
Environmental Audits 102
Miscellaneous and Technical Issues 104
CHAPTERS. PERMITTING
Permitting in Brief 109
Pollution Prevention in NPDES Program 111
Innovative Technology Incentives 113
Storm Water Programs 116
Combined Sewer Overflows 123
Pretreatment 125
CHAPTER 7. MONITORING
Background 128
Strengthening State and Tribal Programs 129
Inventory of Waters 131
Coordination of Water Monitoring 133
Relationship of Other Agency Research
and Monitoring Activities to the Clean Water Act 135
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CHAPTER 8. MISCELLANEOUS ISSUES
National Estuary Program Management Plans 137
The National Estuary Program
and the Watershed Protection Program 139
Ground Water and Drinking Water Protection 141
Increasing Tribal Assumption of EPA Water Programs 144
Water Use Efficiency 147
Market-Based Approaches 149
Benefits and Costs of the Reauthorized CWA 150
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PRESIDENT CLINTON'S CLEAN WATER INITIATIVE
Just as water is vital to human life, the imperative for clean water touches closely the
life of every American.
Every American knows that clean water is essential, whether we draw a living on or
from our waters, seek recreation in them, or look to them as a scenic setting for a
home, a workplace or a site for spiritual nourishment. Water pollution remains
consistently among the public's top environmental concerns. A 1993 Times Mirror
poll found that 77% of the public believes that government should do more to control
such pollution.
President Clinton proposes a clean water agenda that will energize our efforts to
secure clean and healthy water, while making simpler and more efficient State and
local governments' central role in this effort. The President's agenda strives for
support of all affected sectors: State, local and tribal governments; environmental,
agricultural, civic and business groups.
The Need for Action
The Clean Water Act (CWA) has dramatically improved water quality since 1972.
Still, serious quality threats grow unchecked, and heightened vigilance is required for
other, persistent problems. Recent State assessments show 30 percent of rivers, 42
percent of lakes, and 32 percent of estuaries surveyed continue to be degraded,
mainly by silt and nutrients from farm and urban runoff, combined sewer overflows
(CSOs) and municipal sewage. 740 million pounds of toxic chemicals pour into
waterways and municipal sewers each year. Localized ground-water contamination
is widespread.
Approximately 1,300 waterbodies have been so degraded by pesticides, organic
chemicals, and metals that State authorities have had to limit the public's
consumption of the fish and shellfish found therein. Bottom sediments are
contaminated in more than 1,000 waterways nationwide. Bacterial contamination
shrinks our shellfish beds. Beach closures diminish recreation for thousands.
Commercial fishing harvests in U.S. rivers have decreased by over 80 percent.
Between 60 and 80 percent of riparian corridors have been degraded.
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A New Vision for Water Quality in America
"We must pass a new Clean Water Act with standards for nonpoint source
pollution and incentives to develop ways to reduce and prevent polluted runoff
at its source."
President Clinton
"A Vision of Change for America"
An updated CWA can tackle these problems through a new, more targeted approach.
Through "designer partnerships" among Federal, State, and local governments, private
landowners, industry and the public, we can craft flexible, innovative, efficient
solutions to water quality problems, increasingly making watersheds the basis of
analysis and action.
Here are the key objectives of our policy:
> to reduce nonpoint source pollution (NPS) through clear performance objectives,
and by giving incentives, information and technical aid to farmers, developers,
foresters and others, so they can lessen the damaging pressure their activities
exert on aquatic resources;
> to streamline and strengthen regulatory and enforcement authorities to assure
a prompt, effective and appropriate response to environmental and health
threats;
> to slash unfunded mandates, increase flexibility and cut red tape for States,
municipalities and the private sector, so resources are targeted to the most
serious quality problems;
* to improve and maintain the municipal wastewater infrastructure, as too many
areas find their sewers and treatment plants inadequate to protect water
quality;
> to encourage dischargers to move beyond compliance with the letter of the law
to innovation that will prevent pollution, promote efficiency and protect living
resources; and
> to improve quality of life for all, regardless of ethnicity, race or income, leaving
no group bearing a disproportionate burden of the consequences of
environmental pollution.
In sum, the Clinton Administration is asking Congress, in reauthorizing the CWA, to
enter a new era in environmental protection. Instead of simply controlling the end of
the discharge pipe, we propose to protect and conserve our water, aquatic habitats,
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and the living resources within, through an integrated, holistic approach, based on
natural watersheds, and aimed at reducing pollutants from all sources that impair
water quality. This vision for water quality is powerful and wide enough to realize
other vital national priorities, such as improving wetlands programs, growing jobs, and
addressing key border issues in the new U.S.-Mexico trade agreement.
STRENGTHENING ENVIRONMENTAL PROTECTION
The CWA has greatly improved water quality. However, emerging threats and
persistent problems alike require new vigilance. The Clinton initiative will:
Strengthen State nonpoint source programs by including enforceable minimum
controls in selected waters
+ In conjunction with other Federal agencies and States, EPA should establish
national guidance for best available management measures to control nonpoint
pollution. Measures should consider costs and be broad and flexible enough for
local tailoring.
> States should apply their nonpoint programs, including best available
management measures, to existing nonpoint sources in targeted waters whose
quality is impaired, threatened or deserves special protection, and to new
sources State-wide. Site-specific plans and adaptations to local soils and
climates should be encouraged if they are as effective as EPA's guidance.
+ After an initial five-year implementation period, another five years should be
allowed for any added controls needed to meet water quality standards. States
or if necessary the Federal government should ensure compliance with State-set
management measures. Federal agencies must carry out State NPS programs
on Federal lands just as non-Federal entities do elsewhere.
Establish more current and comprehensive water quality standards, including a broader
effort to control or prohibit the multi-media release of the most persistent toxic
substances
+ States should implement water quality standards programs in cooperation with
EPA and other Federal agencies. EPA should develop criteria and
implementation guidance based on current science, and should set such
development priorities based on risk and effectiveness. States should be
required to expeditiously adopt standards consistent with EPA criteria. Criteria
should be automatically converted into State standards if the State fails to act.
The CWA should also require protection against unacceptable degradation of
special value waters.
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> Where release of the most toxic, bioaccumulative and persistent pollutants
poses substantial health and environmental risk and contributes to water quality
impairment, EPA should have broader ability to control or prohibit them.
Strengthen Federal, State, and private citizen enforcement of the requirements of the
Clean Water Act
> The Administration proposes Federal and State authorities for more efficient,
effective, innovative enforcement, to deter violations and encourage
compliance. We would streamline and strengthen enforcement provisions,
involving all criminal, civil, administrative, and enforcement options, and make
CWA enforcement powers consistent with comparable environmental laws.
» The Administration will also strengthen citizen enforcement which
complements government enforcement.
» Compliance should begin at home. The Federal government must obey the Act,
and so Congress should expand the waiver of sovereign immunity and establish
means for Federal enforcement against Federal facilities.
Actively promote ecosystem protection and pollution prevention
> Federal agencies should, on request, help States, Territories, and eligible Tribes
with all appropriate work on watershed planning and management. We propose
that States, Territories, and Tribes that choose to engage fully in watershed
management would have greater flexibility to (1) tailor NFS management to
local conditions; (2) focus point source program resources on critical problems
in key watersheds; (3) address interconnected ground water and surface water
concerns; (4) weigh trading opportunities between nonpoint and point sources;
(5) target the State Revolving Fund (SRF) and CWA grants to eligible, priority
watershed activities, including riparian restoration; and (6) establish high
priority for federal funds and technical aid for wetlands activities (e.g.,
identification, mitigation banks, functional evaluations and restoration plans).
> Complementing this holistic approach, the Act should allow NPDES and
pretreatment programs to require industrial dischargers to consider pollution
prevention approaches, to help encourage recycling and pollutant source
reduction. The effluent guidelines program should be streamlined, and regularly
updated to focus on reducing the greatest health and environmental risks.
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REDUCING COSTS AND IMPROVING EFFICIENCY
The CWA rigidly requires all municipalities and industries to meet technology and
water quality standards for combined sewer overflows and storm water discharges.
The Clinton initiative will:
Reduce by four-fold the potential cost of storm water controls while achieving water
quality benefits by targeting actions to select urban areas
> Wet weather runoff from storrn water discharges can severely degrade water
quality, but CWA mandates must address this problem more fairly and
effectively. Point source (National Pollutant Discharge Elimination System, or
NPDES) permits now regulate such runoff from most industries and from
municipalities with populations over 100,000. The Act should apply permit
requirements ~ using targeted controls -- to certain urban areas with
populations of 50,000 or greater, ending requirements for smaller cities.
Remaining sources -- smaller cities, commercial enterprises, and light industries
-- should be addressed by enhanced State IMPS programs or watershed
programs.
> Before requiring compliance with water quality standards, EPA and States
should be allowed first to require best management measures for municipal
storm water discharges. Where municipalities choose to regulate industrial
storm water discharges to storm sewers, they should be allowed to displace
EPA or State regulation. Finally, to encourage prevention of storm water
pollution, industrial facilities that are permanently sheltered from wet weather
should be exempted from NPDES storm water permits.
Reduce by four-fold the potential cost of combined sewer overflow controls while still
achieving designated water uses
»> Representatives of EPA, the States, cities and environmental groups have
agreed on a new policy on CSO controls. Both costs and environmental
impacts in this area are very high. The draft policy should be codified in the
Act. By aiming resources at the most critical problems, the policy will produce
cost-effective benefits,, particularly for commercial fishing and urban recreation.
We also recommend removing the SRF's 20 percent funding limit on fixing
CSOs to provide the critically needed funding for developing CSO controls.
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PROMOTING TECHNICAL INNOVATION AND MARKET-BASED
APPROACHES
The Act fails to encourage innovative technologies and market-based approaches that
can achieve environmental goals more efficiently. The Clinton initiative will:
Give permittees more compliance time if they adopt innovative technologies
> EPA and States should be able to give NPDES permittees enough time and
flexibility to adopt new technologies that offer more effective, cheaper pollution
prevention or control than current methods. EPA could explore national
standards for discharges from Department of Defense vessels as an incentive
to develop innovative technology for marine pollution controls.
Encourage appropriate trading as a way to achieve cost-effective attainment of water
quality standards within a watershed
> Market-based approaches, including certain types of pollutant trading and
State-imposed, risk-based effluent charges, may help the efficient attainment
of water quality goals. When a water body receives point and nonpoint
pollutants with similar effects, pollutant sources may be able to reallocate or
exchange their tasks of pollution reduction.
* However, in any trading scheme, point sources must continue to meet
technology-based requirements. Because toxic pollutants often have localized
effects, trades must consider such possible effects near the discharges and
throughout the watershed. The CWA should recognize and encourage trading
and State-imposed effluent charges as means to improve water quality and
should authorize demonstration programs to explore the benefits of trading.
IMPROVING FLEXIBILITY
The Act now impedes State action on priority problems due to overly cumbersome
procedures and statutory priorities that do not match State priorities. The Clinton
initiative will:
Allow States to establish new management frameworks that focus resources on the
most critical problems in priority watersheds
* States, Territories and Tribes that undertake watershed management should
convene teams comprised of individuals from all affected governments,
communities, and the private sector. Each team would define environmental
objectives, identify causes of water ecosystem degradation, and develop and
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implement Watershed Management Plans. Among other things, plans will
contain voluntary and mandatory actions to reduce point and nonpoint source
pollution, improve water quality, and protect and restore aquatic habitats.
* EPA, with other Federal agencies, will contribute guidance, technical and
financial aid, and periodic review of State watershed management programs.
These "designer partnerships" on a watershed basis will break the one-size-fits-
all paradigm.
Authorize multi-purpose water grants for States that do watershed management, with
flexibility and streamlined administrative requirements
> As an incentive for the watershed approach, the CWA should consolidate
existing State grants into one multi-purpose water grant (excluding the SRF).
States could manage Federal funds through a single workplan, insuring basic
activities enabling States to shift funds to high priorities.
Expand SRF funding eligibility to a wider range of activities
> The SRF authorization expires this year. The Act should reauthorize the SRF
and clarify that SRF eligibility is limited to municipalities, but should expand
their project eligibility to include riparian habitat restoration in priority
watersheds; control of all municipal pollution sources; and programs promoting
water conservation and pollution prevention. Congress should streamline
program requirements to reduce costs.
BUILDING STATE AND LOCAL CAPACITY
The Administration recognizes that we can solve our water quality problems only with
the synergism of partnerships throughout the Nation. Pooling our skills and resources,
we will maximize environmental and economic benefits. Reauthorization of the CWA
is a timely opportunity to spur national policy towards designer partnerships,
empowered to try collaborative solutions. Partnerships must also include strategies
to help State and local governments surmount the financial challenges they face in
achieving CWA goals.
As a part of this effort, EPA should substantially consult with and involve State and
local governments which are co-regulators in the relevant regulatory and other
decision-making processes under the CWA. This clean water initiative creates a
statutory environment in which that consultation and involvement can occur.
Specifically, the Clinton initiative will:
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Building on a Clean Air Act idea, help States collect sufficient clean water program
funds through permit fees and other means
> States must adequately fund authorized programs through State appropriations,
other funding, or permit fees to recover the costs of the NPDES, pretreatment
and sludge programs. EPA should be authorized to collect the fee if the State
does not collect sufficient funds, and wherever EPA operates the NPDES
program. Funding should cover the costs of developing and administering point
source regulations, standards, guidance, and permits; monitoring compliance
and quality assurance; ambient monitoring; developing and maintaining an
inventory of regulated entities; and developing and administering any fee
system.
> Increased permit fees should also be imposed when the Army Corps of
Engineers or authorized States issue Section 404 permits. These fees would
recover program costs, enhance program efficiency and facilitate wetland
protection. Fees should minimize financial effects on small landowners.
Capitalize the SRF to ensure its long term integrity, and streamline the SRF
administrative process
> The SRF has been crucial to improving municipal sewage treatment. The
Administration proposes authorization levels of $2 billion per year through
1998, then falling until 2003 as SRF annual repayments reach a stable level of
about $2 billion.
Support Indian Tribes which seek to develop and administer integrated water quality
programs
* The CWA should foster assumption of water quality programs by Indian Tribes.
EPA should be authorized to provide a broad program grant for Tribes to
develop "integrated" water quality programs tailored to their specific needs, and
boost to 1 % Tribal set-asides in Title VI treatment works construction funding.
FOSTERING ENVIRONMENTAL JUSTICE
The Clinton initiative recommends CWA changes to enhance protection of all the
people from environmental hazards. It will:
Allow States to use the SRF for disadvantage^ community needs
> While the long-term integrity of the SRF must be preserved, the Administration
also believes that some disadvantaged communities, small or large, need
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particular help. We propose to allow States to use up to 10% of each year's
loan volume for negative interest loans (down to -2%), or similar assistance.
This aid should be given only if a community demonstrates that it cannot meet
the State affordability criteria even after exhausting all other options for
financial assistance.
Improve quality of life for all, regardless of ethnicity, race or income, leaving no group
bearing a disproportionate burden of the consequences of environmental pollution
> When setting CWA program priorities, EPA must involve the public to ensure
consideration of all population groups. EPA should be authorized to develop
guidance on fish advisories to ensure protection of people in cultural groups
who consume more fish than the national average, such as subsistence fishers.
> Also, the new framework for watershed management proposed here would
advance consideration of critical problems in priority watersheds regardless of
race, ethnicity or income. Watershed activities should engage all affected
groups, empowering local communities through partnerships. Particularly, the
CWA should give urban watersheds high priority, and authorize SRF use for
riparian restoration in such watersheds.
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CHAPTER 1--FUNDING ISSUES
EXPANDING ELIGIBILITY FOR SRF FUNDING
ISSUE:
Under current law, a State Revolving Fund (SRF) established under title VI of the
Clean Water Act (CWA) can provide assistance for the construction of publicly-owned
treatment works (POTWs) [§212], the implementation of State NFS management
programs (§319), and the development and implementation of estuary conservation
and management plans (§320). The range of eligible activities under the current
program is already fairly broad, and includes certain high-priority activities such as
CSO abatement and storm water management. Since the program's inception in
1987, the issue of whether to expand the types of projects and activities eligible for
SRF assistance has received a great deal of consideration.
BACKGROUND:
In recent years, the Administration's understanding of the types of impairments to the
Nation's waterways and their costs, has improved. The Administration has examined
a variety of proposals for expanding eligibility under the SRF program. These
proposals range from clarifying and expanding eligible activities related to water
quality management to transforming the program into a comprehensive mechanism
for addressing a broader range of environmental management issues.
Unfortunately, the needs for currently eligible activities far exceed available SRF
capitalization. In addition, Federal budget realities restrict our options. Moreover,
many projects and activities proposed for funding under the SRF program are already
eligible to receive assistance from other sources of Federal funding. For example,
coastal NFS plans are eligible for grants under the Coastal Zone Management Act.
RECOMMENDATIONS:
> The Administration recommends small but significant changes to eligibility
under the SRF program that would make the best use of limited Federal funds
and encourage States1 to address high priority needs.
* Restoration and protection of riparian areas in the context of a publicly-
administered program should be eligible for SRF assistance. However, this
would not include the purchase of land.
throughout this document, "States" means all States, Territories, and eligible
Tribes, as appropriate.
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Initial capitalization of a wetlands mitigation bank should be eligible for SRF
assistance.
SRF eligibility should be expanded to include development and implementation
of water use efficiency activities if the activities are cost-effective alternatives
to expanding treatment capacity for treatment works which are publicly-owned
or managed (for example, measures undertaken by assistance recipients to
install water saving plumbing fixtures). SRF assistance for such activities
should be restricted to systems and be provided to the agency or entity
operating a system, not to individual users. States should be encouraged to
provide incentives to SRF loan applicants to undertake comprehensive water
use efficiency studies and incorporate implementation of those
recommendations in SRF funding proposals.
SRF eligibility should also be available to public authorities to develop and
implement pollution prevention plans.
Section 201(g)(1) should be modified to remove the restriction on funding of
CSO corrections, storm water controls, and sewer rehabilitation. The current
restriction for collector sewers (20 percent of the capitalization grant amount)
should remain.
SRF should not be used to replace other Federal funds.
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CLARIFYING AND LIMITING THE ELIGIBILITY OF CERTAIN
ACTIVITIES FOR SRF FUNDING
ISSUE:
During the current phase of SRF program implementation, a series of issues has arisen
regarding the appropriateness of providing SRF assistance for certain kinds of
activities. A number of issues also have arisen with respect to the eligibility of various
private parties to receive SRF assistance. As a result, the Administration has
considered whether SRF-eligible activities should be limited in some way based on the
purposes, benefits, or ownership (i.e., public vs. private) of such activities.
BACKGROUND:
Currently, funding of NPS management activities under the SRF is relatively unlimited.
Based on our interpretation of title VI and its legislative history, the Administration has
concluded that any activity that is included in a State's federally-approved §319 plan
is eligible for SRF assistance regardless of relative priority among other projects in the
State or the project's contribution to achieving water quality or public health
objectives. In some cases, while a particular project would provide water quality
improvement, that purpose may be secondary to other project purposes.
The eligibility of various private parties to receive SRF assistance has emerged as an
issue most prominently in recent years, with the completion of NPS management
plans and the movement away from a sole focus on traditional POTWs.
Consequently, the Administration has questioned whether to limit SRF-eligible
activities in some way based on ownership (i.e., public versus private).
RECOMMENDATIONS:
* The Administration favors restricting eligibility for SRF assistance only to
municipalities. However, the Administration recommends that the CWA be
amended at §603 to clarify that SRF assistance may be provided to an eligible
public recipient for the publicly-owned portion of a municipal wastewater
facility constructed as part of a public-private partnership arrangement.
> The Administration favors restricting eligibility to projects whose principal
purpose is directly related to surface water quality improvement, as defined by
chemical, physical, and biological parameters.
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MODIFYING PROJECT REQUIREMENTS
ISSUE:
Title VI applies certain requirements to SRF-funded projects and activities. However,
many small communities cannot take advantage of the SRF because of excessively
burdensome requirements. States and local communities have urged that certain
requirements be eliminated or modified to make the program more attractive,
particularly for small or disadvantaged communities. Consequently, the Administration
has considered whether some requirements should be altered.
BACKGROUND:
Most of the requirements that apply to SRF-funded projects are found in §602(b)(6)
of the CWA. However, §602{b)(6) requires POTW projects that are assisted with SRF
funds "directly made available by" capitalization grants (i.e., funds in an amount
equaling the Federal contribution) to comply with certain requirements of title II.
These requirements (known as "title II requirements") include requirements to consider
alternative technologies, recreational uses, and value engineering, for example.
According to State and local officials, the title II requirements increase project and
State administrative costs and impede decision-making flexibility. These requirements
are particularly burdensome to small communities. In addition, these requirements can
delay the time when Federal funds can be expended for these projects.
Certain title II requirements currently applicable in the SRF program represent good
management practices that States and localities should follow (e.g, cost-effectiveness
analysis, one-year operational certification, development of user charge systems, and
compliance with the National Environmental Policy Act). The rationale for certain
other title II requirements, although valid in a program of direct grant assistance to
local communities, may not be as necessary when the assistance is in the form of
loans from States.
RECOMMENDATIONS:
The Administration does not support exempting the SRF program from compliance
with Federal cross-cutting requirements; however, certain requirements should be
altered or added as follows:
> Environmental equity is an important concern for the Administration. Recipients
of funds directly made available by capitalization grants for wastewater
treatment project construction should be required to examine whether the siting
of these facilities will have a disproportionate impact on people of color and
low-income communities.
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As discussed under the section on expanding eligibilities, remove the title II
restriction on funding of CSO corrections, storm water controls, and sewer
rehabilitation.
To relieve cost burdens, communities with populations under 10,000, should
be exempted from complying with:
o The §201(g)(2) requirement regarding consideration of alternative
technologies;
o The §201(g)(5) requirement regarding consideration of innovative and
alternative technologies;
o The §201(g)(6) requirement regarding consideration of open
space/recreation; and,
o The §201 (o) requirement regarding encouragement of development of
capital financing plans.
Section 211, which limits funding for collector sewers to those in an "existing
community," should be amended to make it clear that "existing community"
refers to a community in existence as of the date of enactment of CWA
reauthorization. Although the term "existing community" is not presently
defined in the statute, it is interpreted to mean the date of original enactment
of the CWA in 1972.
Section 218 should be amended to require value-engineering reviews only for
projects with total costs over $25 million.
Any changes in the applicability of the title II requirements should apply to all
capitalization grant funds for which binding commitments had not yet been
executed as of the date of enactment of the CWA amendments.
SRF projects and activities that are located in a State-designated watershed
planning area should not be inconsistent with State-approved watershed
management plans. (See discussion of watershed management.)
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PROJECT TARGETING AND PRIORITY SETTING
ISSUE:
Should changes be made to encourage better project targeting of SRF funds?
BACKGROUND:
States have structured a wide variety of programs that direct SRF assistance to
different priorities and projects. In some States, SRF loans primarily go to large cities;
other States emphasize assistance to small towns. Most States provide the majority
of funding to wastewater treatment works; a few are attempting to protect water
quality by funding NFS projects.
Under the current SRF program. States must develop project priority lists (PPLs) only
for municipal wastewater facilities. To be funded under the SRF program, municipal
wastewater facilities must be on the State PPL; however, unlike the construction
grants program, the State need not fund such projects in priority order. Title VI does
not require the States to develop priority lists for other SRF-eligible activities. Without
a means to consider the relative environmental benefits of various water quality
approaches, most States have not given appropriate consideration to a full range of
water quality management approaches.
Title VI also includes a requirement for each State to annually develop an Intended
Use Plan (IUP) including a discussion of the SRF's short and long-term goals and
objectives and the basis for selection of projects.
In addition, an expansion of the priority systems and project priority lists could foster
more comprehensive water quality management and selection of projects based upon
water quality assessments and comparative environmental benefits and costs.
RECOMMENDATIONS:
> Because funds available for SRF capitalization are limited compared to needs,
it is important that States effectively set priorities and target assistance to
direct the Nation's capital towards achieving the greatest environmental results.
Therefore, the Administration recommends expanding priority systems and
project priority lists to include all SRF-eligible projects, including NPS and
estuary protection activities.
> State priority systems should reflect project contributions to implementing
recommendations in State-approved watershed management plans. (See the
discussion of the Administration's proposal for a new CWA provision to
establish State-wide programs for comprehensive watershed management.)
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The current emphasis on State flexibility for funding water quality protection
through the SRF program should be maintained. The Administration does not
support the use of set-asides to foster funding of particular activities which are
eligible for SRF funding. However, at their option, States should be allowed to
establish dedicated pools within overall priority list for particular high-priority
purposes, such as NFS activities.
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MEETING THE NEEDS OF DISADVANTAGED COMMUNITIES
ISSUE:
There are many communities that cannot afford to repay SRF loans even at zero
percent interest. These communities are not well served by other sources of financing
because of their limited credit-worthiness. Projects in small communities and large
scale CSO projects are often very expensive on a per capita basis. The Administration
has considered a host of proposals for fundamental changes to the SRF to meet the
needs of disadvantaged communities.
BACKGROUND:
Under the current SRF program. States may provide loans to communities with
interest rates ranging from zero percent to market rates. Interest rate policies vary
widely among the States. In addition, many States have prescribed criteria for
providing various loan terms to communities dependent on need. States must strike
a balance between providing attractive and affordable loan terms while, at the same
time, managing the fund to provide a source of long-term financing.
Many States and groups that represent small and economically disadvantaged
communities have recommended that certain changes be made to the SRF program
which would enable States to provide more affordable financial assistance. Note that
not all small communities are disadvantaged and not all disadvantaged communities
are small. However, most of the disadvantaged communities are under 10,000 in
population. These communities cannot rely on "economies of scale" and have less
access to credit markets than large cities.
The Administration has considered several other financing approaches for
disadvantaged communities, including: extending loan repayments to 30 years, but
not to exceed the useful life of the facility (title VI currently limits repayment to 20
years); authorizing principal write-downs or negative interest loans; authorizing States
to make grants under very limited circumstances; and, allowing States to use up to
one percent of the Federal capitalization grant to provide technical assistance to small
and other disadvantaged communities to help identify low cost technologies, prepare
application materials, and consider other financing options.
RECOMMENDATIONS:
The Rural Development Administration (RDA) provides loan and grant
assistance to communities with populations under 10,000. The Administration
and States should improve coordination between the SRF and RDA programs
to assure selection of projects based on relative financial need, environmental
benefits and other factors and, as appropriate, promote combinations of grant
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and loan assistance to most effectively use available funding sources and to
provide local communities with a broader range of funding choices.
States should be authorized to provide additional subsidies from the SRF to
disadvantaged communities through a joint prioritization and coordination
process between States and RDA for communities with a population less than
10,000. The value of these subsidies should be limited to ten percent of the
value of loans made in a particular year.
Some States already manage separate loan and grant programs targeted to
meet the needs of small and disadvantaged communities. Other States should
be encouraged to set up similar programs parallel to, but outside of, the SRF
so that the long-term purchasing power of the SRF is not eroded.
States should determine which communities qualify for special subsidies, based
on guidelines established by EPA. Subsidies could include negative interest rate
loans, 30-year repayment periods (or repayment periods that do not exceed the
life of the facility), principal subsidies, loan forgiveness and similar methods
proposed by the States and approved by EPA.
Any additional subsidy provided to a disadvantaged community should not
exceed the amount necessary to make the SRF loan affordable, and the amount
of the subsidy to any qualifying community should not exceed the equivalent
of a negative 2 percent interest rate. Such additional assistance should be
available only to qualifying communities that demonstrate that no Federal or
State grant funds are available for their project and that such additional
assistance is necessary to make the project affordable.
§604{b) should be amended to authorize States to use the set-aside of one
percent of the State title VI allotment for technical assistance to needy
communities.
Congress has recognized that the SRF program may not be an ideal approach
for certain specific jurisdictions, and has provided relief in appropriations acts
by directing EPA to set-aside one-half of one percent of the total title VI
appropriation for grants to Indian Tribes (including Alaska Native Villages) for
the construction of municipal wastewater facilities. The Administration
believes that the set-aside should be included directly in the authorizing
language and that the amount should be increased to one percent. Grants
should be allowed to cover 100 percent of project costs. Up to 4 percent of
funds available under this set-aside should be available for use to administer
such grants.
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Appropriations language has also exempted the District of Columbia, Virgin
Islands, Guam, and certain other territories from the SRF program. Instead,
these jurisdictions receive their title VI allotments in the form of grants under
title II. The Administration supports continuation of this exemption through
incorporation into the authorizing language. These jurisdictions should be
allowed to use these funds for any SRF-eligible activities.
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CAPITALIZATION OPTIONS FOR SRF PROGRAM
ISSUE:
Federal capitalization of the SRF program is scheduled to end in 1994, but the
remaining needs for currently eligible wastewater treatment projects and activities are
enormous. Because of the success of the program and the size of the remaining
needs, there appears to be strong support for providing additional Federal funds to the
States. The Administration has been examining the changes that are needed to
assure the long-term financial health of the SRF program, including additional
capitalization beyond Federal authorizations contemplated by the currently proposed
authorization period.
BACKGROUND:
The recently-released 1992 Needs Survey provides an estimate of the costs to build
municipal wastewater facilities, including CSO abatement and storm water
management, as well as certain NFS management activities. The total estimated cost,
including both documented and modeled needs, is approximately $137 billion. If
eligible activities are expanded, the total potential demand for SRF funding could
increase even further.
Based on the current SRF program (including assumptions about additional
capitalization resulting from leverage bonds), the Agency estimates that over a 20-
year period States will provide SRF loans at a total value of approximately two and
a half times the initial Federal capitalization. Nonetheless, without additional
capitalization, there will likely be a major gap between available SRF funds and the
demand for local financial assistance.
Part of the discussion of future capitalization of the fund hinges upon consideration
of the appropriate role of the Federal government in supporting local communities and
States in addressing water quality infrastructure needs.
Even with the additional capitalization of the SRF program proposed by the President,
the gap between the cost for communities of complying with the CWA and the
resources available from Federal assistance programs and other public funding will
remain vast. Many communities are looking to private capital to help fill the gap and
many private firms and investors are anxious to loan the funds. However,
impediments in both the CWA and EPA regulations prevent the public and private
sectors from working together to meet the Nation's municipal wastewater needs.
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RECOMMENDATIONS:
> For FY 1994, the Administration recommended an authorization of $1.2 billion
for the SRF. From FY 1995-1998, the authorization should increase to $2
billion annually.
» In order to maintain the ability of States to obtain $2 billion in annual loan
activity (including rollover of repayments) and to buttress the disadvantaged
community program, $1.5 billion should be authorized for the program for FY
1999, $1.25 billion for FY 2000, $1 billion for FY 2001, $0.75 billion for FY
2002, $0.5 billion for FY 2003, and $0.25 billion for FY 2004. Federal
capitalization should end at that point.
> States should be authorized to use an amount equal to up to 4 percent of the
capitalization grants or up to 1/2 percent of the cumulative capitalization
(Federal grants and State match) for the costs of fund administration.
> States should be authorized to deposit loan closing fees and loan repayment
surcharges into their SRF and to earmark those funds for administrative
expenses or technical assistance to disadvantaged communities (such amounts
cannot now be used for such purposes because of the four percent cap on
administrative expenses calculated on the amount of Federal capitalization
grants).
» Statutory impediments to private investment in municipal wastewater facilities
should be removed. The Administration recommends defining the phrase
"publicly-owned treatment works" in the CWA to include, for non-financing
purposes, wastewater facilities that serve the general public, regardless of
ownership structure. The purpose of this provision would be to establish
equitable permitting and other technical consideration of publicly-owned and
investor-owned sewage facilities. (This is analogous to "public water supply"
under the SDWA which refers to the facilities that serve the public, not
facilities that are necessarily owned by public entities.) Legislative language
should be constructed to ensure that private entities would not be eligible for
SRF assistance. However, as recommended separately by the Administration,
the CWA should clarify that SRF assistance may be provided to the public
portion of municipal wastewater facilities that benefit from public-private
partnership arrangements.
> States should continue to provide a 20 percent match to the Federal
capitalization grants.
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PERMIT FEES FOR THE NPDES,
PRETREATMEIMT, AND SLUDGE PROGRAMS
ISSUE:
Should permit fees be specifically authorized in the CWA to fund the National
Pollutant Discharge Elimination System (NPDES), pretreatment, and sludge programs?
BACKGROUND:
Currently, funding of the NPDES, pretreatment, and sludge programs at the Federal
and State levels is insufficient to fully implement legislative mandates. In the future,
fiscal difficulties will necessitate reduced funding. At the same time, EPA and the
States are expected to consider advances in technology and scientific knowledge in
decision-making at all levels, and to draw upon a wider base of controls to prevent
pollution and multi-media pollution transfer. Permit fees have been suggested as a
funding source worthy of consideration.
Existing Fee Systems
Many States have developed wastewater permit fee systems, but few are sufficient
to bring current funding to adequate levels. Current State fee systems vary broadly
in the amount of fee assessed and the schedule or formula used to determine the fee
for an individual facility. The Federal government at this time has no fee system for
water programs.
The Clean Air Act Amendments of 1990 (CAAA) required permit programs
administered by any air pollution control agency to contain a permit fee system
sufficient to cover all reasonable costs of developing and administering the permit
program. The CAAA further authorized EPA to collect reasonable fees to cover the
costs of administering the provisions of the permit program where the control agency
has not met the requirements for a fee program or is not adequately administering or
enforcing an approved fee program.
Potential Approach for CWA Permit Fees
An approach similar to that in the CAAA could be taken in the CWA. Specifically, the
CWA could require EPA and the States to develop comprehensive fee systems to
cover all or some fraction of their costs of developing and administering the NPDES,
pretreatment, and sludge programs. These fee systems, alone or in combination with
appropriated funds, program grants or other revenue systems, could cover, at a
minimum, direct and indirect costs of developing and administering regulations, water
quality standards, guidance, and permits programs; monitoring compliance and quality
assurance; conducting ambientmonitoring; processing waiver applications; developing
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and maintaining an inventory of regulated entities; and developing and administering
the fee system. Requiring collection of 100 percent of the program costs would
eliminate the need to annually review State revenues available through the
combination of fees, appropriations, and grants.
EPA, the States, and any Indian Tribes that obtain program authorization could be
given broad authority to fashion their fee structures as they deem appropriate as long
as those fees, in combination with other funding, are sufficient to cover program
costs. EPA and the States may find the greatest benefit in simple fee structures
which are easy to assess and inexpensive to implement. Fee structures that require
extensive accounting could be avoided so that the cost of implementing the fee
system would not wholly disproportionate to the fees collected. EPA, the States, and
Indian Tribes could be given the authority to exempt certain dischargers from paying
any or all of the feewhether based on an incentives program or in recognition of
economic or other factors.
RECOMMENDATIONS:
> Require authorized States and Tribes to develop and implement a fee system
for the NPDES, pretreatment, and sludge programs they are authorized to
administer. The requirement should be written to encourage national
consistency and to assist the ability of States to adopt fee legislation.
* Authorize EPA to develop fee systems in authorized States and Tribes that do
not develop approvable fee systems within a stated period of time or in States
and Tribes that are not authorized to administer any or all of the NPDES,
pretreatment, or sludge programs. These fees would only cover the costs to
administer the NPDES, pretreatment, and sludge programs. These fees would
be deposited in a special fund and be subject to appropriation.
> Specify that the fee systems be designed to assess fees of permittees and
industrial users (IDs) that have been issued equivalent control mechanisms by
the State (in the case of authorized States), Indian Tribe (in the case of
authorized Tribes), or EPA.
> Require that fee systems for authorized States and Tribes be designed to
collect, at a minimum, funds sufficient to cover 100 percent of the costs not
funded through appropriated funds, program grants, or other revenue systems
to develop and administer all aspects of the NPDES, pretreatment and sludge
management programs, as well as other surface water programs (e.g., water
quality standards, ambient monitoring, total maximum daily loads) which
support the NPDES, pretreatment, and sludge programs.
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Extend broad authority to States, Tribes, and EPA to determine the basis of
their fee structures. Although fee systems are designed to generate revenue
with which to fund the program, States and Tribes should be encouraged to
base fees on pollutant loading or other factors deemed appropriate to provide
economic incentives to promote pollution prevention. These fees should not
supplant any applicable technology-based or water quality-based effluent limit,
or pollution prevention planning requirements of law.
In the event accumulated fees exceed the amount required above, authorize the
reduction or suspension of fees sufficient to prevent accumulation in excess of
program needs.
Require that the fee systems be re-evaluated every 5 years to determine the
adequacy of established fee systems given changes in the Producer Price Index
as well as changing requirements for the implementation and administration of
the NPDES, pretreatment, and sludge programs.
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SECTION 404 PERMIT FEES
ISSUE:
Should permit fees be explicitly authorized in the CWA to fund the Section 404
program?
BACKGROUND:
Since the early 1970s, the Army Corps of Engineers (COE or the Corps) has charged
Section 404 permit fees of $10 for private projects. All monies collected are
deposited in the U.S. Treasury. In 1990, following completion of a Corps study and
upon the recommendation of the Department of Defense Inspector General, the Corps
published for public comment a proposed revised fee schedule. The proposal would
have increased application fees, based upon the associated government permit
evaluation costs, to $2,000 for commercial projects and $500 for noncommercial
projects. A fee schedule also was proposed for other services such as wetlands
delineations and environmental impact statement preparation.
The proposed revised Section 404 fee schedule proved to be very controversial, and
Congress, in both the 1992 and 1993 Corps appropriations bills, expressly prohibited
the Corps from expending any funds on completion of the proposed fee regulations.
Since that time, the Vice President's National Performance Review has been
completed. The final report explicitly addresses existing Section 404 permit fees and
states that the Corps "has charged only token fees for its services, collecting only
$400,000 annually." The report goes on to recommend that, "higher fees would help
not only taxpayers but Corps customers, because additional revenues could pay for
faster processing of applications."
RECOMMENDATION:
The Administration recommends that the CWA be amended to establish a fee
structure for Section 404 permit fees for major regulatory actions, and that the
monies generated from the fees be placed in a special regulatory account and used by
Corps districts (and assumed States, as appropriate) solely to increase the efficiency
and effectiveness of the regulatory program by reducing delays associated with permit
evaluations and wetlands delineations. This fund would operate independently from
the Corps' normal regulatory operating budget.
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LABORATORY PERFORMANCE EVALUATION FEES
ISSUE:
Should user fees be specifically authorized in the CWA to recover the cost for
preparing and distributing laboratory performance evaluation standards and materials
laboratories and NPDES permittees?
BACKGROUND:
The quality and reliability of delta used to implement water programs at the Federal,
Regional, and State level is critical to the success of EPA Programs. The Water
Laboratory Performance Evaluation Program, consisting of three separate performance
evaluation (PE) studies, is one of several tools to ensure the quality of monitoring data
required under the CWA. These laboratory PE studies are valuable indicators of
whether laboratories have the equipment and technical ability to accurately analyze
monitoring samples required under the CWA. Laboratories and NPDES permittees are
encouraged or required by regulation to participate in PE studies.
EPA currently provides performance evaluation materials to 5,000 Federal, State and
private laboratories and 7,500 permittees at no cost to the users. Over half the
States require commercial laboratories to participate in EPA Performance Evaluation
program to receive certification to analyze wastewater samples under the National
Pollution Discharge Elimination Program. Many States not using EPA performance
evaluation studies for certification, do use results of the studies to identify laboratories
with performance problems and to set priorities for laboratory audits. The results of
PE studies are also used as by States to make certification decisions for other
environmental programs.
The cost for preparing and distributing water PE materials to users regulated under the
CWA was approximately $1.5 million dollars and 6 work-years in 1992. Costs are
expected to be $1.6 million in 1993. This level of funding provides a minimal
program that does not meet all current or future programmatic needs, because the
EPA budget for the program is not keeping pace with the increase in size, scope, and
cost of the studies necessitated by new programmatic demands.
As the emphasis in monitoring shifts to measure biological and ecosystem health and
new programs for cleanup and control of contaminated sludge are implemented, PE
materials and studies that test laboratories' abilities to measure a wider range of
analytes in more complex matricessuch as fish and animal tissue, sediment, and
sludge-will be necessary. Thus the costs for administering studies will continue to
grow at a time of continuing funding shortages in Office of Water and Office of
Research and Development. If funding does not increase EPA will not be able to
sustain the current program or make changes to address new needs.
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RECOMMENDATIONS:
> EPA should be authorized to collect and retain user charges to generate a sum
of funds equal to the cost for EPA to administer and implement a program for
distributing laboratory performance evaluation standards and materials to
laboratories and permittees implementing requirements under the CWA.
> The laboratory performance evaluation fee structure should reflect EPA's costs
for given categories of users or activities and should approximate EPA
expenditures for each.
» A fund should be maintained to specifically replenish inventories and
performance evaluation materials to users. The fund should not exceed the
annual costs for administering and implementing the program by more than five
percent.
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CHAPTER 2-TOXICS ISSUES
POLLUTANT DISCHARGE PROHIBITIONS
ISSUE:
What changes are needed in the CWA to improve the ability to prohibit the discharge
of the most detrimental toxic pollutants?
BACKGROUND:
Significant progress has been made in decreasing the discharge of harmful toxic
pollutants to surface waters. This has largely resulted from technology and water
quality based controls on point sources. Nonetheless, the discharge of certain toxic
pollutants continues to contribute to serious environmental and human health water
quality problems. Such problems are evident in the inventories of impaired
waterbodies, the toxic contamination of sediments, and contamination-based fishing
bans and advisories.
Some pollutants are extremely harmful in small quantities and/or build up in the food
chain to produce adverse and long-term effects to human health and the environment.
Emerging evidence links certain pollutants not only to cancer, but also to neurological,
reproductive, developmental and immunological adverse effects. Such pollutants can
damage aquatic ecosystems by directly eliminating sensitive species or indirectly
causing increased incidence of disease in the remaining species. Some pollutants may
also persist in the environment for decades, posing a continuing threat to humans,
aquatic organisms, birds and other wildlife.
The CWA's technology-based effluent guidelines-to-NPDES permits process and the
complementary water quality criteria/standards-to-NPDES permits approach are still
the best mechanisms for EPA and the States to control the discharge of most toxic
pollutants into surface waters. However, both approaches can be very time-
consuming and costly. Developing an effluent guideline may take 5 to 6 years or
more, with costs ranging from $5 to $8 million. Water quality criteria may take 3 to
5 years to develop, with costs ranging from $300,000 to $800,000 per pollutant for
chemical-specific criteria. It took 13 years before all States adopted or EPA
promulgated w|ater quality standards for priority toxic pollutants with §304{a) criteria.
Translation of jthese requirements into permit limits takes more data and additional
years.
§307(a)(2) authorizes EPA to issue an "effluent standard" (which may include a
prohibition) establishing requirements for toxic pollutants. However, the statute
mandates a burdensome rulemaking process that is more formal than the widely used
Administrative i Procedure Act informal rulemaking requirements found in 5 U.S.C.
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553. The procedures pertaining to §307(a)(2) include: cross examining witnesses
during a public hearing presided over by an Administrative Law Judge; maintaining a
verbatim record of the hearing to be made available to the public; and, requiring EPA
to base the decision on "substantial evidence" in the record (rather than considering
public comments and meeting an "arbitrary and capricious" standard). This
cumbersome process has rarely been used. The most recent use of the §307(a)(2)
process was 17 years ago (January 12, 1977, 42 £R 2613; Feb. 2, 1977, 42 EE
6555; 40 CFR Part 129) when EPA published effluent standards for aldrin/dieldrin,
DDT, DDD and DDE, endrin, toxaphene, benzidine and polychlorinated biphenyls.
RECOMMENDATIONS:
> The Administration recommends that the CWA be amended to improve the
ability, where needed, to restrict or prohibit the discharge of the most highly
toxic and highly bioaccumulative pollutants. In making such determinations,
EPA should use general informal rulemaking procedures to ensure all credible
issues are addressed, but also to ensure timely implementation. Although
discharge prohibitions are only needed for a few of the very "worst actor"
pollutants, such restrictions or prohibitions would be important steps towards
the CWA's "zero discharge" goal.
Administrative Procedures
> The administrative procedures in §307(a) should be amended to authorize
EPA's use of the rulemaking procedures in 5 U.S.C. 553 when establishing an
effluent standard to restrict or prohibit the discharge of a toxic pollutant. After
a 90-day public comment period, consultation with affected federal agencies,
and consideration of relevant matter presented, EPA should make a final
determination as expeditiously as practicable. The basis of judicial review
should be the "arbitrary and capricious" standard in 5 U.S.C. 706(2)(A).
Discharge Prohibitions
> Section 307(a)(2) should be amended to revise and clarify the basis for an
effluent standard that restricts or prohibits the discharge of the most highly
toxic and highly bioaccumulative pollutants that pose a substantial risk to
human health or to the chemical, physical, or biological integrity of the Nation's
waters. The discharge requirements should be based upon the best available
scientific information on: (1) the pollutant's persistence, toxicity, and
bioaccumulation potential; (2) the magnitude and extent of exposure to the
pollutant; (3) the relative contribution of point source discharges of the
pollutant to the overall risk; (4) the availability of and risk posed by substitute
chemicals or processes or the availability of treatment processes or control
technology; (5) the beneficial and adverse social and economic effects of any
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effluent standard, including the impact on energy resources; (6) the extent to
which effective control is being or may be achieved in an expeditious manner
under other regulatory authorities; (7) the impact on national security interests;
and (8) other factors EPA deems appropriate.
EPA will consult with the federal resource agencies and other applicable federal
agencies in rulemaking for pollutant discharge prohibitions.
EPA should have the authority to determine the scope of an effluent standard,
including the ability to apply it to certain classes or categories of dischargers.
EPA's authority under this provision should be applicable to all toxic pollutants
as defined in §502(13) of the CWA, rather than the narrower list of priority
pollutants.
EPA should use the discretionary authority in existing statutes to regulate or
prohibit multi-media environmental releases that cause or contribute to a water
quality impairment. The Administration wants to work with Congress to
develop approaches that would allow effective pollution control where other
Federal environmental statutes are not effective, and where an integrated multi-
media approach is the most efficient means to reduce unacceptable risk. This
would not apply to mobile sources or pesticide programs. EPA would use the
most appropriate existing! environmental statute (e.g., the Clean Air Act for air
releases) for controlling the release and would take into account the factors of
revised section 307(a)(2) above.
Any person should be able to petition the Administrator to exercise the
discretionary authority to regulate or prohibit multi-media environmental
releases of pollutants or classes of pollutants which contribute to a water
quality impairment.
o When submitting a petition, the submitter should include any information
on the factors outlined for 307(a)(2).
o Within twelve months following receipt of the petition, the Administrator
should (1) deny the petition based on the information submitted as
supplemented with other information available to the Administrator, or
(2) after public comment, publish a plan to initiate rulemaking to restrict
multi-media releases, including prohibition of releases. In making this
decision, the Administrator shall consider the factors outlined for
307(a)(2).
o If the Administrator finds there is insufficient information to grant or
deny a petition, the Administrator should require additional information
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within 6 months of the petition being received. Following an appropriate
period for submission of additional information, the Administrator should
grant or deny the petition within 6 months.
o The Administrator should be required to respond to the petition within
the schedule outlined above, except if the Administrator has received
petitions for multiple pollutants, the Administrator may select which
petitions to address first, and should then develop a plan for addressing
the remaining petitions.
o The Administrator should have the discretion to form classes of
compounds to expedite review and decisions on any petition.
> The pollutants or group of pollutants for which EPA should establish a
restriction or prohibition should not be specified in the statute. Further, the
statute should not specify deadlines for making any such determinations. Such
determinations will vary from pollutant to pollutant. Ensuring that they are
based upon sound science argues in favor of relying upon EPA's scientific
expertise.
Timing
> As part of any effluent standard, EPA should establish the effective date for the
discharge prohibition.
Study of Chlorine and Chlorinated Compounds
» To develop a strategy to comprehensively protect human health and the
environment and to move towards the national goal of the Clean Water Act of
eliminating the discharge of toxic pollutants, the Administration will develop a
national strategy for substituting, reducing, or prohibiting the use of chlorine
and chlorinated compounds:
o Within 6 months following enactment, the Administrator should convene
a task force which includes representation by appropriate federal
agencies including, at a minimum, NIEHS, ATSDR, FWS and NMFS, and
other experts outside of the federal government to comprehensively
assess the use, environmental and health impacts of chlorine and
chlorinated compounds, and availability and relative efficacy and safety
of substitutes for these substances as used in publicly owned treatment
works and drinking water systems, and solvents, PVC and other
plastics, and in pulp and paper manufacturing. This task force should
identify which chlorinated compounds or classes of chlorinated
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compounds should be examined and develop a study building upon
existing Agency studies and actions where appropriate.
o Within 18 months following enactment, the task force should collect all
current information on the use, and environmental and health impacts of
chlorine and chlorinated compounds associated with the uses listed
above, and the availability and relative efficacy and safety of potential
substitutes. In considering environmental and health impacts of chlorine,
chlorinated compounds, and their potential substitutes, the task force
should include the potential developmental impacts on aquatic species,
wildlife, and humans, including but not limited to impairments to the
reproductive, endocrine, immune, and nervous system functions.
o Within 30 months following enactment, the Administrator should:
(1) Review the information collected by the task force;
(2) Develop a plan for any appropriate actions, including the
exercise of existing statutory authorities, to restrict or prohibit the
use of chlorine or chlorinated compounds, in consideration of the
environmental and health impacts, and availability and relative
safety and efficacy of potential substitutes;
3) Subject the plan to public comment; and
4) Release a final national strategy for substituting, reducing, or
prohibiting the use of chlorine or chlorinated compounds.
In formulating this action plan, the Administrator should consider the
discretionary authority to reduce or prohibit multi-media environmental
releases which contribute to a water quality impairments.
Within three years of enactment, the National Academy of Science should
complete a study for the Congress on the current knowledge of chemicals that
exhibit endocrine, immune, and nervous system health effects in humans and
wildlife, including evidence that they increase the incidence of breast cancer,
decreased sperm count, or impaired reproduction. The study should include
recommendations for any appropriate actions which are based upon
scientifically defensible findings for reducing or prohibiting the production
and/or use of such chemicals.
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WATER QUALITY CRITERIA DEVELOPMENT
ISSUE:
How can the CWA be amended to promote priority-setting based upon maximizing risk
reduction in the development of §304(a) water quality criteria?
BACKGROUND:
The central challenge of the water quality criteria program is that the development of
criteria, methodology and guidance far exceeds any reasonable resource expectations.
The CWA provides EPA adequate authority to develop all types of water quality
criteria (chemical, physical and biological), methodologies and guidance. However,
there is no statutory requirement to set priorities among these competing demands
based on maximum risk reduction potential and programmatic effectiveness.
In the 1970's and early 1980's, EPA focused water quality criteria development to
address a relatively narrow subset of all water quality problems. Efforts emphasized
chemical-specific numeric criteria to protect aquatic life or human health because: (1)
chemical contaminants were associated with priority problems; (2) the current statute
targeted point source dischargers; and (3) our. scientific knowledge was the most
advanced in this area.
Since the mid-1980's, research and criteria development efforts have expanded
beyond focusing on chemicals to address the full range of ecological problems. For
example, these efforts include work on biological, wildlife, sediment, nutrient, and
habitat criteria. This shift in focus of research and criteria development is consistent
with the 1990 report of EPA's Science Advisory Board: Reducing Risk: Setting
Priorities And Strategies for Environmental Protection. This report recommended that
EPA attach as much importance to reducing ecological risk as it does to reducing
human health risks. Further, the 1992 National Water Quality Inventory data on the
leading causes of waterbody impairments supported a focus on ecological problems.
In focusing on ecological problems, environmental equity considerations cannot be
ignored. For example, contaminated fish may pose higher risks to sensitive
subpopulations, including pregnant women, native and ethnic subsistence fishers, and
those with compromised immune systems. Although States have issued fish
advisories in approximately 1300 waterbodies to limit public consumption of
contaminated fish or shellfish, there is inconsistency in the development of fish
advisories, the information contained in them, or the way susceptible populations are
informed of the risks.
Thus, while some chemical pollutants still contribute to serious water quality
problems, due to scientific advancements, the changing nature of water quality
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problems and their relative seriousness, and the considerable progress in the control
of point source discharges, the need for other forms of criteria, methodologies and
guidance has increased. To meet new challenges, we need a comprehensive set of
criteria, methodologies and guidance to accurately assess the water quality aspects
of ecosystem health and support efforts to maintain and restore waterbody integrity.
RECOMMENDATIONS:
f-
* The Administration proposes that EPA should develop criteria and
implementation guidance based on the most current science, and should have
explicit authority to set priorities for developing such criteria based on risk and
effectiveness. EPA needs the flexibility to be responsive to changes in science
and understanding of our environmental problems. Statutory requirements to
develop specific water quality criteria or types of criteria on tight deadlines
would hamper EPA's ability to set priorities based upon a comparative risk
reduction determination and understanding of relationships within an
ecosystem. Such statutory requirements would fragment resources, time and
attention among relatively minor risk areas.
Comprehensive Criteria Development Plan
> §304 should be amended to require EPA to develop, within two years of
enactment, a comprehensive plan setting priorities for criteria development.
EPA should involve States, Tribes, other Federal agencies, academia and the
public in the development of the plan. Priorities for the development of all
forms of water quality criteria, methodologies or guidance should reflect relative
risk reduction potential and risk management considerations, including
programmatic needs, effectiveness and societal effects. The plan should
include provision for simultaneous development of regulations, policies,
guidance, technical assistance, and training materials necessary to support
timely implementation of the criteria. The plan should be implemented to the
fullest extent possible based upon appropriated resources, and updated every
five years.
* The statute should not specify the pollutants or types of criteria documents,
nor should it set deadlines for their development. These determinations should
be part of the comprehensive criteria development plan.
Improved Data Availability
» §308(a) should be amended to clarify that EPA is authorized to request from
dischargers the data necessary to support the development of water quality
criteria for pollutants found in the discharges.
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> EPA should be given discretionary authority to require the submittal of
sufficient information to establish the need for a criterion and, if needed, data
to establish water quality criteria from manufacturers, registrants,
formulators/packagers or re-packagers, as appropriate, of a pesticide registered
or undergoing re-registration under the Federal Insecticide, Fungicide, and
Rodenticide Act and from manufacturers or processors, as appropriate, of a
chemical on the Toxics Substances Control Act inventory list or subject to a
Premanufacturing Notice under the Toxics Substances Control Act.
Fish Advisories
> The statute should acknowledge and recognize the roles of EPA and FDA, after
consulting with appropriate federal agencies, to develop factors and guidelines
that States may use in issuing fish consumption advisories, including those that
protect people in cultural groups who consume more fish than the average
consumer.
Criteria Development Process
* The statute should require EPA to establish a process for the development of
criteria, methodologies or guidance in which States, Tribes, other Federal
agencies, academia, local governments, industry, environmental groups, and
the public participate.
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STATE WATER QUALITY STANDARDS REVIEWS
ISSUE:
Are CWA changes needed to improve the timeliness and scope of State adoption of
EPA §304(a) water quality criteria and other State water quality standards uses and
policies?
BACKGROUND:
CWA §303(c)(1) requires States to update water quality standards at least once every
three years to ensure that: (1) waterbody uses reflect current conditions; (2) criteria
are based on the best available science, and address emerging issues; and (3) policies,
methods and practices are revised or modified to fully attain the goals of the Act.
EPA reviews and approves or disapproves State water quality standards and any
changes. EPA promulgates standards for a State if: (Da State fails to make
appropriate revisions in disapproved standards, or (2) a new or revised standard is
needed to meet the requirements of the Act.
In practice, State reviews and updates of water quality standards have taken many
years beyond the once-every-three-years statutory requirement. Such delays create
serious impediments in developing control programs to restore and maintain our
Nation's waters. For example, it took 13 years to get toxic pollutant criteria into all
State standards. Despite this lengthy process, most States adopted standards
identical to EPA's water quality criteria for most pollutants.
Further, EPA ultimately had to establish Federal standards for 14 States. EPA
promulgation actions are resource-intensive and time-consuming. For example, the
recently completed National Toxics Rule promulgation action took almost three years.
Aside from delaying the control of toxic discharges, this process has also diverted EPA
and State attention and resources from other pressing program priorities (i.e.,
biological, habitat, and contaminated sediment criteria and standards). In States, the
process has also stymied the adoption of narrative biological criteria and of wetland
water quality standards.
The Act also provides as a goal under §101(a)(2) that wherever attainable, water
quality should provide for the protection and propagation of fish, shellfish, and wildlife
and provide for recreation in and on the water. Nonetheless, 21 years after the Act,
some waters still lack use designations. This gap inhibits effective implementation of
water pollution control programs.
With the exception of consultation with appropriate Federal agencies under the
Endangered Species Act, Federal natural resource management agency involvement
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in States' water quality standards reviews is often limited to the public hearing at the
end of the process. Yet Federal technical expertise and environmental and ecological
data could assist States during their reviews of water quality standards. A
consolidated guidance document describing Federal natural resource management
agencies' technical expertise, data and requirements, would enhance a State's ability
to 'take advantage of the resources and information when they would be most
advantageous.
As water quality programs move toward a watershed focus, the review and revision
of waterbody use designations and implementation policies should be coordinated with
those efforts. A pentennial review of water quality standards may be more consistent
with the watershed planning focus and with the increasing complexity and site-
specific or ecosystem nature of newer forms of water quality criteria (nutrient,
salinity /flow, habitat, biological and toxicity criteria). Not only are the new forms of
criteria more difficult and time-consuming to adopt, but their application may be
different from chemical-specific criteria. To deal with this complexity, the §304(a)
criteria documents could explicitly describe the scope and applicability of the criteria,
e.g., using biological criteria initially as an assessment and evaluation tool to describe
the condition of the water resource rather than the basis for a permit limit. Integrating
the time frames of complementary water programs [§303(c), §303(d), §305(b), §314,
§319, §320 and §402] would facilitate development, implementation and evaluation
of water pollution control programs.
RECOMMENDATIONS:
> The CWA should be amended to improve compliance with the current statutory
requirements for the review, update and adoption of enforceable water quality
standards. The new statutory provisions should maintain the opportunity for
State exercise of primacy and substantial flexibility, but should also ensure
standards are in place in a timely fashion to avoid Federal promulgation actions
or other administratively burdensome requirements. The statutory amendments
should also promote the updating of waterbody uses in coordination with
watershed focused efforts.
Waterbody Use Designations
> The CWA should require that all waters be evaluated for use designations. To
achieve this objective, the CWA should be amended to provide that: not later
than two years after enactment, all waters for which uses have not been
designated, shall be designated to provide for the protection and propagation
of fish, shellfish and wildlife and for recreation in and on the water, unless and
until a State or authorized Tribe demonstrates that such uses are not attainable,
and adopts an alternative use or uses that EPA approves in accordance with
§303(c)(3).
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Adoption of Pollutant-Specific Numeric Criteria
* Section 303 should be amended to require that if a State or authorized Tribe
fails to adopt water quality standards that have been through formal rulemaking
review three years after EPA publication of new or revised pollutant-specific
numeric water quality criteria under §304(a) (including toxic criteria,
bacteriological criteria and other criteria to protect aquatic life, human health,
and wildlife), then the §304(a) criteria automatically become the State or Tribe
water quality criteria regardless of use designation, unless and until the State
or authorized Tribe adopts and EPA approves a revised water quality standard
in accordance with §303(c){3).
» The statute should require States, within three years of enactment, to adopt a
scientifically defensible provision or methodology that allows the States, where
sufficient data exist, to interpret a narrative water quality criterion to yield a
numeric value. The provision or methodology would be used to derive a
numeric value for those pollutants that cause water quality impairments and for
which EPA has not published §304(a) criteria or for which criteria have not
been made effective in the State. Such numeric values shall be used for all
purposes under the Act for which the numeric criteria apply.
Adoption of Ecosystem-Specific Criteria (e.g.. biological, habitat, nutrient)
» For those pollutants, factors or conditions requiring the collection and use of
site-specific or ecosystem-specific data (e.g., biological, nutrient, habitat and
other forms of ecological criteria), as specified in the §304(a) criteria document,
the Act should require States to adopt and to apply those criteria for the
purposes stipulated in the criteria document as expeditiously as practicable, but
not later than four years after their publication in impaired or threatened waters.
For States failing to act, EPA should either promulgate the applicable criteria
under §303(c)(3) or take other appropriate action to facilitate State adoption
of the criteria.
Comprehensive Water Quality Standards Reviews
* Rather than a triennial water quality standards review, the statute should
provide for a pentennial review to reflect the changing focus, nature and
complexity of the program. During the first pentennial review, States should
conduct a comprehensive review of, and make appropriate revisions in, use
designations, criteria and policies and submit the review and revisions to EPA.
In some cases, States may have designated uses which are not attainable.
After completing the use attainability analyses, States should make appropriate
revisions to the use designations, consistent with fully protecting existing uses
and maintaining the designation for those which are attainable.
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Section 303{e) should be amended to require that EPA transmit to States a
coordinated guidance document compiled from the submissions of Federal
resource management agencies. The coordinated guidance document should
describe, on a State-by-State basis, Federal data and information on water
quality related environmental considerations associated with maintaining and
protecting the Federal interests in fishery resources, wildlife resources,
threatened or endangered species and their critical habitat, federal lands, and
other natural resources of federal interest affected by the quality of waters
within the State. During the development, review, and modification of water
quality standards, policies, and procedures, States should fully consider this
data and information. EPA, in consultation with the Federal resource
management agencies, should ensure that each State has given full
consideration to this information and data before approving the State water
quality standards.
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AIMTIDEGRADATION
ISSUE:
How should the CWA be amended to enhance the timeliness and level of
antidegradation protection given to important waters?
BACKGROUND:
The antidegradation policy is critical to attaining the goals of the Act. Although the
policy has been an essential element in the water quality standards program since
1968, the CWA does not specifically define a water quality standard to include an
antidegradation policy, but references such policies in §303(d)(4)(B).
The Water Quality Standards Regulation (40 CFR §131.12) requires that States adopt
a State-wide antidegradation policy and antidegradation methods to:
1.
2.
3.
maintain and protect water quality necessary to protect the level of existing
uses;
protect high-quality water (i.e., water quality that exceeds levels necessary to
support propagation of fish, shellfish, and wildlife and recreation in and on the
water), unless the State makes a finding that lowering water quality is
necessary to accommodate important economic and social development in the
area in which the waters are located;
maintain and protect waters which constitute an outstanding National resource,
including waters of exceptional ecological or recreational significance.
Antidegradation involves a two-step process. The first step is a screening
determination of whether an activity will lower the quality of the receiving water. The
simple introduction of additional pollutants does not necessarily constitute a lowering
of water quality. This screening determination involves a pollutant and site-specific
scientific consideration of factors such as the type and amount of additional
pollutants, and the duration and spatial extent of the change. Where an activity does
lower water quality, it triggers the antidegradation review process.
Through the NPDES permit process, existing uses and high quality waters are
protected. However, States have classified very few waters as Outstanding National
Resources Waters (ONRWs). This is due in part to significant limitations on activities
affecting the waters, as specified in EPA guidance once they are designated as
ONRWs. Such limitations preclude new or increased loadings, except those that are
minor and short term. An ONRW designation could also significantly affect
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dischargers to upstream waters or prevent the expansion of visitor facilities in national
or State parks if waters within the parks were designated as an ONRW.
EPA does not have the authority to designate waters as ONRWs. Nevertheless, there
is need to protect certain waters that are vital to the character and function of
significant ecosystems. To do so, some States have added additional categories
providing more protection. This enables States to give important waters more
protection without the severe restrictions accompanying an ONRW designation. The
additional protection preserve the special qualities or characteristics of the water
consistent with its use.
RECOMMENDATIONS:
The Administration recommends that the definition of a water quality standard be
expanded to be consistent with the current application of "State-wide antidegradation
policy and antidegradation implementation methods." In addition, the CWA should
establish a process that would:
» allow additional tiers of protection to enhance the ability of States to more
precisely tailor their antidegradation policy to protect different types of special
qualities against unacceptable degradation in important waterbodies that are
not ONRWs;
> preserve State flexibility and relies on State expertise in identifying and giving
added protection to important waterbodies;
> ensure timely assessment of all waterbodies for added levels of protection, i.e.,
high quality waters, special protection waters (SPW) and ONRWs;
> provide for the assessment of important waters for which there is a clear
federal interest (e.g., national parks. National Marine Sanctuaries and National
Estuarine Research Reserves, national wildlife refuges, national wild and scenic
rivers, national wilderness areas, etc.) and their consideration for additional
protection;
* presumptively apply a SPW level of protection for important waters where there
is a clear Federal interest should States fail to make a deliberate determination
of whether to provide them with additional protection;
> authorize the Secretaries of Commerce, Interior, and Agriculture to nominate
to EPA certain waters for designation as SPW or ONRW, and requires, within
2 years of a nomination, EPA , after notice and opportunity for comments and
consultation with affected States or Tribes, to make a determination on the
designation of nominated waters. Consistent with State primacy on water
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quality standards, this authority should be narrowly exercised when States have
not acted timely to protect important federal interests in these waters.
authorize EPA to designate SPWs and ONRWs and to challenge State or Tribal
determinations when they are not fully protective of federal interests in
important national waters. EPA should be further authorized to set forth the
conditions for their protection after notice and opportunity for comment and
consultation with affected States or Tribes, and Federal natural resource
agencies. Consistent with State primacy on water quality standards, this
authority should be narrowly exercised when States have not acted timely to
protect important federal interests in these waters.
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POLLUTION PREVENTION IN THE EFFLUENT GUIDELINES PROGRAM
ISSUE:
How should the CWA be amended to improve EPA's ability to promote pollution
prevention in effluent guidelines and standards?
BACKGROUND:
Existing effluent guidelines provisions in the CWA give EPA some flexibility in
fostering pollution prevention practices; however, some provisions are unclear or
restrictive. One could be strengthened to promote source reduction and minimize
cross-media transfer of pollutants.
CWA §304(e) authorizes EPA to specify Best Management Practices (BMPs) in
effluent guidelines to "control plant site runoff, spillage or leaks, sludge or waste
disposal, and drainage from raw material storage ..." for toxic or hazardous pollutants.
However, some industries (e.g., pulp and paper) can generate significant amounts of
waste due to spills, etc. that consist of conventional or nonconventional pollutants
(i.e., not toxic or hazardous) and thus these are not addressed by BMPs in effluent
guidelines.
RECOMMENDATION:
> The CWA should be amended to allow EPA to specify BMPs for all pollutants
and all sources of pollutants, not just toxic pollutants. This provision would
result in a more comprehensive coverage of pollutants, and thereby allow BMPs
to be an effective tool to promote pollution prevention.
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CHAPTER 3--POLLUTED RUN-OFF AND OTHER FORMS
OF NONPOIINT SOURCE POLLUTION
NONPOINT SOURCE POLLUTION IN BRIEF
The Administration proposes a fundamental restructuring of the NFS pollution control
program under §319 of the CWA. NPS pollution, including polluted runoff,
significantly contributes to the Nation's remaining water quality problems. States
estimate that nonpoint sources, together with storm water and CSOs, account for
over half of remaining impairments of lakes, rivers, and estuaries. Nonpoint sources
also affect ground water, riparian areas, and aquatic habitat, such as wetlands.
The Administration proposes a fundamental strengthening of the basic structure of
§319, in part by building on a comprehensive watershed protection approach.
Existing NPS management programs should be upgraded and strengthened to
implement best available management measures for nonpoint sources causing or
contributing to water quality impairments or threatening such impairments, within
seven and one-half years of enactment of legislation reauthorizing the CWA. This
initial implementation period should be followed by a second, five-year period of time
to implement further measures where necessary (considering the actual and expected
environmental benefits of the original management measures) to achieve water quality
standards.
In implementing these strengthened §319 programs, States should rely on a mix of
voluntary and regulatory approaches. However, State programs should include
enforcement authorities, effective at the time of program approval, to be used as
needed to ensure implementation of the management measures. These State
authorities should be backed by Federal enforcement authorities that could be
exercised if a State should fail. Where States do not develop an approvable program,
§319 grants should be withheld from the State, and, EPA should be authorized to
establish enforceable minimum NPS controls.
The voluntary element of this approach will require leadership and support at the
Federal, State, and local levels of government to address successfully the water
quality issues identified by the States under this proposal. The appropriate agencies
will need to be actively involved, providing assistance and guidance to those seeking
to adopt changes designed to protect and restore water quality. The Administration
recognizes that Congress will need to be a partner in the effort to provide the
necessary resources to work with the States as they address these water quality
issues.
The Administration proposes that funding be increased for State implementation of
NPS programs. As an additional source of funding, the Administration proposes
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clarifying State revolving loan fund eligibility for IMPS projects whose principal purpose
is protecting and improving water quality.
Recognizing the crucial role of Federal lands management and Federal activities in NFS
control, the Administration proposes clarifying the Act to require that Federal agencies
comply with specific State or local requirements in nonpoint source programs to the
same extent as non-Federal parties in those watersheds.
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STRENGTHENED STATE PROGRAMS
ISSUE:
How should the CWA be amended to strengthen State efforts to protect watersheds
from NFS pollution?
BACKGROUND:
NFS pollution including polluted runoff remains the dominant water quality and
environmental concern in most areas. For the last decade, States and others have
consistently reported that NFS pollution is the main reason that water quality
objectives are not met.
States report that, of the waterbodies assessed, two-thirds of our Nation's rivers,
streams and estuaries and over half of our Nation's lakes currently meet State water
quality standards and designated uses. While these results point to the considerable
progress in controlling point sources, our remaining water quality problems are
extensive. Of the assessed waters, States reported in 1992 that over 258 thousand
miles of rivers and streams, nearly 8 million acres of lakes, and over 9 thousand miles
of estuaries do not meet water quality standards or their designated uses. States also
report that excess sediment and nutrients are leading causes of wetlands degradation.
States list agriculture as the most widespread category of concern; it adversely
affects about two-thirds of all impaired river miles and about one-half of all impaired
lake acres. States also identify urban runoff and storm water, resource extraction,
hydrologic modifications, and contaminated sediments among the sources most
widely contributing to water quality impairments Nationwide. Furthermore, depending
on local conditions and economic activity, other nonpoint sources-such as land
disposal (including on-site wastewater systems), forest harvesting, and small
construction sites-can also be significant contributors to water quality problems.
The leading causes of impairment related to nonpoint sources are siltation, nutrients,
and organic enrichment. Moreover, not only the chemical, but also the physical and
biological components of aquatic ecosystems, are important to maintaining the
integrity of our Nation's waters. For example, development can severely alter the
natural vegetation and infiltration characteristics of watersheds, causing higher and
more frequent runoff with subsequent downstream erosion, riparian alterations and
destruction of habitats, including wetlands. Rivers and streams are also affected
significantly by temperature stress, caused primarily by the loss of streamside
vegetation that provides shade, and by channelization and hydromodifications (e.g.,
dams and flow alteration). Wetlands can be adversely impacted by stresses such as
pesticides in runoff, hydromodification, urban development practices, and excessive
sediment and nutrient loadings.
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Current Actions
In 1987, in §319 of the CWA, Congress established a national approach of relying on
State programs for managing NPS pollution. Under §319, States were required to
develop EPA-approved NPS assessments and NFS management programs to address
the identified problems. Approved State programs were eligible to receive EPA grants,
and State revolving loan funds, to implement their NPS programs. From FY 1990
through FY 1993, States received a total of $193 million in §319 grants to implement
their approved programs.
State efforts to date have led to increased public awareness of NPS pollution and
available methods to control it. State NPS activities and projects have demonstrated
the effectiveness of a variety of innovative management practices, institutional
arrangements, and watershed projects. Efforts by many Federal agencies [e.g., the
U.S. Departments of Agriculture (USDA), Interior (DOI), and Transportation, the
National Oceanic and Atmospheric Administration (NOAA), and the U.S. Army Corps
of Engineers] have buttressed State efforts in this regard and have led to
improvements in a significant number of watersheds.
States currently employ a mix of voluntary and enforceable approaches to implement
their NPS programs. States are not currently required under §319 to have enforceable
policies to implement the programs. EPA does not have any independent authority to
establish NPS controls where a State has failed to develop an approvable program; nor
does EPA have any other authority to assure that States develop and implement NPS
control programs.
As one step to promote increased control of NPS pollution in coastal areas, Congress
enacted §6217 of the Coastal Zone Act Reauthorization Amendments of 1990
(CZARA). EPA and NOAA jointly administer this program. CZARA directs EPA to
publish detailed technological baselines (based on "best available, economically
achievable" NPS management measures) to guide new State programs to protect
coastal waters from nonpoint pollution. CZARA also requires States to have
enforceable State policies and mechanisms to implement their coastal NPS programs
(no Federal enforcement authority is established). CZARA provides that EPA and
NOAA shall withhold specified percentages of States' NPS and coastal zone
management grants from States that do not submit approvable coastal nonpoint
pollution control programs under CZARA.
Action Needed
Despite State progress under §319 nationally and the promise of CZARA in coastal
areas of the country, the problems of NFS-related impairments are so widespread that
State programs must advance even further. Existing State programs under §319,
while generally providing a good, basic framework, need to be upgraded. While EPA
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and States are working to improve §319 implementation, stronger authority is needed
if we are to make the progress required.
RECOMMENDATIONS:
Under the Administration's proposal, §319 should be amended to bolster NFS
programs by specifying the following:
> Within two years of enactment of CWA reauthorization, and every five years
thereafter. States should specifically identify: (1) those waterbodies and their
watersheds that are impaired or threatened by nonpoint sources; and, (2) other
special waters, such as ONRWs and drinking water supplies. This inventory
should encompass major relevant stresses on waterbodies in addition to
chemical pollutants. These assessments should be an integral part of the
comprehensive State inventory of waters (described in the Monitoring Chapter).
> In impaired, threatened, and special protection areas listed in the State
inventory of waters, States should expand their existing NPS management
programs to implement best available management measures for categories of
nonpoint sources causing or significantly contributing to water quality
impairments or threatened impairments. These State programs should be based
ion EPA-issued national minimum program and management measure guidance,
which in turn should consider costs and pollution and risk reductions achieved
and should be broad and flexible enough to allow for appropriate local tailoring.
Site-specific plans and adaptations to local soil and climatic conditions should
be encouraged, provided that: the plans are developed and approved by the
relevant Federal or State agency, the plans are designed to manage nonpoint
pollution, and the resulting level of control is no less stringent than that
established by management measures.
> An initial period of two and one-half years from the date of enactment should
be provided to States for developing and submitting their revised NPS
management programs, followed by a five-year period for implementation of
NPS controls. This should be followed by a five-year period for implementation
of additional NPS controls where necessary (considering the actual and
expected water quality improvements resulting from the original management
measures) to assure that water quality standards are attained and maintained
in all waters.
+ Additional protection State-wide is necessary as well to make sure that water
quality standards (including designated uses) are maintained. Best available
management measures should be applied to all new nonpoint sources except
for those States with an approved watershed management program.
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Where a State undertakes a strong, broad program to expeditiously address all
activities pursuant to the Administration's proposal for watershed management
(discussed in Chapter 4), States should be allowed to seek approval from EPA
for greater flexibility in developing nonpoint source management measures
(under procedures outlined in the NFS control subsection of the "Incentives for
Watershed Management issue paper).
States should be required to include authorities for enforceable State and local
implementation mechanisms in their NFS management programs but should be
provided flexibility to rely initially as much as possible on successful voluntary
approaches. States will need to have enforceable authorities in their programs
from the outset as one means of motivating voluntary activity and to address
situations where necessary implementation of measures is clearly not taking
place. State enforcement authority should include the ability to seek injunctive
relief and to impose appropriate civil penalties.
State and local implementation mechanisms should be specific about the role
of Federal facilities as part of the regulated community and enforcement
provisions should apply. (See the Recommendations below under "Federal
Lands and Activities.")
To promote State adoption of these strengthened NFS programs, Congress
should provide incentives and disincentives, including: increased Federal
funding of State NFS programs; authority for EPA to withhold §319 grants
from States that do not adopt approvable, upgraded NFS programs or do not
implement them; and increased priority for expenditures of other Federal funds
for NFS control for those States that adopt approvable, upgraded NFS
programs.
EPA should be authorized to establish enforceable minimum NFS controls where
a State has failed to develop an approvable program.
As a backup to State enforcement of State management programs, EPA should
also be authorized to take enforcement action when EPA has provided notice
to responsible parties of their requirements to implement program requirements
and has also informed the State of this, and the responsible parties have not
implemented applicable requirements after receiving EPA's notice. (As a
practical matter, this Federal authority would be exercised in those cases where
significant environmental harm has occurred or is threatened, and where the
State has not taken timely and appropriate enforcement action of its own. EPA
should issue guidance, after public input, concerning appropriate penalties and
appropriate injunctive relief in federal enforcement actions, and this guidance
should be made available to the States. States should be encouraged to adopt
this guidance.)
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Citizens should be allowed to petition EPA to take enforcement action where
the State has not taken timely and appropriate enforcement action of its own.
EPA would take enforcement action, as the Administrator deems appropriate,
after EPA has provided notice to responsible parties of their requirements to
implement program requirements and has informed the State of the intent to
take action, and the responsible parties have not implemented applicable
requirements after receiving EPA's notice. (As a practical matter, this Federal
authority would be exercised in those cases where significant environmental
harm has occurred or is threatened, and where the State has not taken timely
and appropriate enforcement action of its own.)
The Administration intends to work with Congress and States to integrate CWA
§319 and Coastal Zone Act Reauthorization Amendments §6217 programs to
avoid duplication.
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FUNDING AND FINANCING
ISSUE:
What incentives should be provided and what sanctions should be applied to promote
improved State implementation of NFS programs?
BACKGROUND:
EPA estimates that the total capital cost to implement best available NFS management
measures for all agricultural and forestry nonpoint sources across the country would
be about $8.8 billion over the next 20 years.2 Operation and maintenance costs have
not been estimated, nor have needs for such nonpoint sources as hydromodification
or storm water runoff from small communities and light industry, which are expected
to be significant.
The benefits of NFS pollution control appear to be significant. For example, in 1985,
the Conservation Foundation estimated in-stream damages from cropland erosion
alone to be $2.5 billion annually and total in- and off-stream damages to be $3.5
billion annually.3
For the last few fiscal years, Congress has annually appropriated about $50 million
for States and Tribes to implement NFS programs. Other Federal agencies provide
additional financial and technical support for activities that help reduce NFS pollution.
However, to fully address the considerable national NFS pollution control needs,
additional resources will be needed at the Federal, State, and local levels.
The CWA currently contains a one-third of one percent cap on §319 grants to Indian
Tribes (resulting in a total of $165,000 in FY 1993). This cap is hindering EPA's
ability to assist Tribes in developing and implementing their NFS programs.
2The costs for a more targeted approach, described under "Strengthened State
Programs" above, would result in a lower cost than this national figure.
3This estimate, in 1985 dollars, does not include water quality damages from
animal waste, fertilizer, pesticides, grazing, irrigation or any non-agricultural nonpoint
sources.
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RECOMMENDATIONS:
> The Administration proposes that §319 grants to States be increased from a
base of §50 million per year to $80 million per year in fiscal year 1994 and
$100 million per year for each of fiscal years 1995 through 1998.
* The one-third of one percent cap on Tribal grants should be removed.
* The State revolving loan fund eligibility for NFS projects should be restricted to
those activities whose principal purpose is protecting and improving water
quality to encourage States to use these funds to support their priority NFS
projects.
+ Pollutant trading techniques between all sources (point and nonpoint) affecting
the same waterbody in a similar manner should be explicitly recognized and
promoted, and appropriate baselines and boundaries on their application should
be defined, to promote sound, cost-effective approaches to meeting water
quality standards.
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FEDERAL LANDS AND ACTIVITIES
ISSUE:
How should the CWA be amended to promote improved control of nonpoint sources
from Federal lands and activities?
BACKGROUND:
Over 29 percent of the land in the United States, 701 million acres, is public land,
administered by the U.S. government for various purposes through the Bureau of Land
Management, the Forest Service, the Park Service, the Fish and Wildlife Service, the
Department of Defense, and other Federal agencies. In addition, many Federal
agencies, such as the Federal Energy Regulatory Commission, the Army Corps of
Engineers, the Bureau of Reclamation, the Bureau of Land Management, and the
Forest Service issue licenses and permits and fund or conduct activities that can, if
conducted improperly, result in NFS pollution.
Many Federal agencies implement programs to control NPS pollution that may be
associated with their land management or program administration responsibilities.
Indeed, some studies have found Federal lands to be better managed, on balance,
than similar privately-held lands. However, improved control of NPS pollution is
needed for Federal as well as for private lands and activities.
Current law requires Federal agencies providing financial assistance and implementing
development projects to be consistent with State NPS management programs or
explain why they are not consistent. Under the current system, some conflicts or
differences of opinion have arisen among States and Federal agencies as to the extent
to which Federal programs are or should be consistent with State programs.
RECOMMENDATIONS:
> Require Federal agencies to implement management measures in the same
watersheds and to the same extent as non-Federal entities, except for individual
cases where the President determines it to be in the paramount interest of the
United States to provide an exception.
* Strengthen §319 consistency provisions to require States to identify the
Federal lands and Federal activities that are inconsistent with the State NPS
management programs approved by EPA under §319, and require the Federal
agencies to comply with State or local requirements under the programs,
pursuant to the sovereign immunity waiver in §313 (subject to Presidential
exemption). In addition, federal agencies are not relieved from the requirements
under the CZMA.
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IRRIGATION RETURN FLOWS
ISSUE:
Should the CWA be amended to enhance the management of irrigation return flows?
BACKGROUND:
Current information indicates significant ecological impacts downstream as a result
of potentially toxic chemical constituents mobilized from soils by applied irrigation
drain water and transported in irrigation return flows ("IRFs").
IRFs containing high concentrations of salts and trace elements are disposed of by one
or a combination of methods including: discharge to holding ponds, local waterbodies,
evaporation ponds, or fallow fields; injection into deep wells; or reintroduction into the
local irrigation system. EPA reported on this water quality problem in its 1992 Report
to Congress on managing NFS pollution.
An estimated 25-35 percent of the irrigated lands in the West have salinity problems,
and the problems are increasing. The high rate of evapotranspiration in the western
States has led to increased levels of toxic constituents in evaporation ponds where
most of the documented drainage-related impacts to wildlife have been observed.
This problem does not appear to be limited to the DOI's 26 reconnaissance study
sites.
Contaminated drainwater may permanently perturb an ecosystem's biological and
chemical balance. Aquatic plants and animals can accumulate tissue concentration
of some drainage contaminants 100 to 10,000 times greater than ambient water
levels. In the San Joaquin Valley, California, field studies in 1987 and 1988
documented adverse biological effects in birds at 7 of 12 ponds studied, representing
approximately 60 percent of the total acreage of ponds in the valley.
IRFs enriched with boron and selenium and containing extraordinary concentrations
of salts are often commingled with water supplies for public and private wildlife areas.
The drainage water continues to provide instream flows for fisheries and other
beneficial uses. However, untreated drainage effluent has been identified in studies
by the Fish and Wildlife Service and others as a serious threat to the health of fish and
wildlife (impacts associated with IRFs have been shown to cause reduced survival,
reduced growth, and decreased reproductive success in numerous species) and
potentially humans. The U.S. Fish and Wildlife Service estimates that up to 10
percent of Federal wildlife refuges nationwide may be affected by this water quality
problem. Health advisories have been issued recommending limited or no
consumption of certain fish and wildlife with documented high concentrations of IRF
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constituents. Several areas in the West have issued fisheries consumption advisories,
and waterfowl consumption advisories have been implemented in Utah and California.
Agricultural drainwater is exempt from NPDES permitting requirements under §402
of the CWA. The National Research Council has recommended that irrigation return
flows not be exempt from Federal or State water quality standards and enforcement.
RECOMMENDATION:
> EPA , with the concurrence of the Departments of Agriculture and the Interior,
and after consultation with States and other Federal agencies, should submit
a report to Congress within two years of enactment which:
o
o
o
evaluates the nature and extent of water quality problems presented by
irrigation return flows;
identifies the most promising and cost-effective technical and
programmatic solutions to those problems; and,
recommends appropriate actions, including programmatic improvements
and necessary legislative changes.
The report should reflect all relevant existing studies and monitoring information
and take existing programs and initiatives into account.
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CHAPTER 4--WATERSHEDS
WATERSHED MANAGEMENT IN BRIEF
The Administration proposes a new provision in the CWA to establish State-wide
programs for comprehensive watershed management. The proposed watershed
management approach would focus attention within hydrologically-defined watershed
areas and engage stakeholders from all levels of government as well as the private
sector. Working together the stakeholders would identify priorities and carry out
actions tailored to address the specific set of problems found within the watersheds.
The watershed approach makes good sense environmentally and programmatically.
Thinking more comprehensively, watershed management teams that combine the
expertise and authorities of many disciplines can realize environmental improvements
that go beyond traditional cornmand-and-control, chemical water quality programs.
For example, through the Anacostia Watershed Restoration Agreement,
representatives from Federal, State, and local governments, the business community,
and volunteers in the Washington, D.C. area have been working side-by-side to
improve one of the Nation's most blighted waterways. Fish migration barriers are
being removed, riparian areas revegetated, and wetlands restored and created, all in
addition to traditional control of discharges from point sources. There are many other
examples of excellent collaborative and comprehensive projects that address the
particular problems found within watersheds around the country. The
Administration's provision would promote and support these efforts and more.
Under the new provision. States, Territories, and eligible Tribes4 could choose to
implement comprehensive watershed programs, which would be approved by EPA
after conference with other Federal agencies. The States would determine the
boundaries for all watersheds in the State and set a schedule for addressing those
watersheds. Where the level of work and the need for coordination dictates, the
States could establish watershed management entities with appropriate representation
of stakeholder interests regardless of race, ethnicity, or income. The States would
oversee the work of such entities and approve the watershed management plans
developed by them. The individual watershed management entities would serve as
focal points for comprehensive analysis, problem solving, and implementation efforts
to address water quality concerns, as well as aquatic living resource and human
health issues.
The Administration also proposes three other changes to the Act that (1) would
provide guidelines for States wishing to adopt market-based approaches to point and
throughout this Chapter, "States" means all States, Territories, and eligible
Tribes, where applicable.
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NFS pollution controls within watersheds; (2) promote the development of wetlands
management plans that would lead to increased flexibility and predictability of the
wetlands permit process on a watershed basis; and, (3) create comprehensive State
inventories of waters that are threatened, impaired, or in need of special protection
(see the discussion of this proposal in the Chapter on Monitoring).
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STATE WATERSHED PROGRAMS
ISSUE:
Should the CWA be amended to provide for a comprehensive, integrated watershed
management approach? If so, what should be the elements of a State watershed
program?
BACKGROUND:
Over the past 20 years, substantial reductions have been achieved in the discharge
of pollutants into the Nation's lakes, rivers, wetlands, estuaries, and coastal waters.
These successes have been achieved primarily through the control of point sources
of pollution. While point source discharges continue to present an environmental
threat in some areas, it is now well understood that potential causes of impairment
of a waterbody are as varied as human activity itself. For example, besides
discharges from industrial or municipal sources, the health of an aquatic ecosystem
may be threatened by: urban, agricultural, or other forms of polluted runoff; land
disturbance activities and hydromodification; altered flows and ground water tables;
over harvesting of fish and other organisms; introduction of exotic species; and
deposition of pollutants originally emitted into the atmosphere. Evidence of impacts
from such sources can be seen in the decline of the salmon populations in the Pacific
Northwest, the declining oyster stock in the Chesapeake Bay, the declining health of
the Everglades and coral reef systems in Southern Florida, and in numerous other
small and large watersheds across the country.
Many of these activities are not addressed effectively by programs under the CWA
and a variety of other Federal laws that provide mechanisms to protect, restore, and
enhance our water resources. The several Federal laws that address or partially
address these problems have tended to focus on particular sources, pollutants, or
water resource uses and generally do not take an integrated environmental
management approach to all water resource issues within hydrologic boundaries. As
a result, significant gaps exist in our efforts to protect ecosystems from the
cumulative impacts of a multitude of activities.
Existing water pollution prevention and control programs do, however, provide an
excellent foundation on which to build a comprehensive, geographically-based
approach-a watershed management approach. The watershed management approach
provides for: (1) recognizing that all resources within natural (hydrologically-defined)
watershed boundaries are part of interconnected systems and are dependent upon the
health of the ecosystem as a whole; (2) identifying priorities and tailoring solutions to
focus limited available resources to address the specific set of problems found within
those systems; (3) building partnerships and integrating Federal, State, Tribal,
regional, Territorial, local, and private programs within the watershed; and, (4) building
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local commitment to implement chosen solutions, thereby achieving greater
efficiencies and effectiveness through management on a watershed basis.
State-based programs can be effective and efficient mechanisms for promoting
comprehensive watershed management activities. Many water programs and other
natural resource management, protection, restoration, and remediation programs are
implemented through the States. A comprehensive State program would provide for
an inventory of all watersheds and, thereby, assure a more consistent, risk-based
approach to selecting watersheds for priority treatment, for example, highly-
threatened watersheds, pristine watersheds, and important urban watersheds. It
would also assure more extensive use and integration of the approach as a way of
managing water-dependent ecosystems. Finally, a State-based watershed program
would respect the key role played by States in the water pollution control program and
allows for a program authorizing State approval of individual watershed management
plans. Earlier area-wide planning efforts were of limited success because they did not
adequately recognize this key State role.
For these reasons, States are the logical units to develop State-wide watershed
programs and to oversee development of watershed management plans (hereafter
referred to as WMPs) within their jurisdictions.
RECOMMENDATIONS:
The CWA should provide for the development of State watershed programs subject
to EPA approval and oversight, with significant involvement from other appropriate
Federal agencies. The statute should be clear that, except as specifically provided for
under the proposed incentives, nothing in the watershed provision would alter any
State or local government responsibilities under the CWA or any other Federal law.
To be eligible for approval, the Act should require that State watershed programs
include the following elements:
> An identification of the State agency responsible for overseeing and approving
watershed management plans, and for designating watershed management
entities and lead responsibilities for such entities, which might include any other
State agencies or sub-State agencies.
* A determination of watershed boundaries throughout the State. States should
work with adjacent States to establish boundaries for those watersheds whose
hydrologic boundaries cross State boundaries. Watershed scale should be
determined by the State; however, the U.S. Geological Survey (USGS)
hydrologic cataloging system should be used as the basis for delineating
watersheds, and appropriate ground water mapping features should be taken
into account.
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Selection of priority watersheds for developing and implementing watershed
management plans. States should identify the watersheds for which they
would develop and implement plans. In addition, States would submit to EPA
the factors by which they selected such priority watersheds. These factors
should include: (1) the presence within the watershed of threatened or
impaired waters, especially those affected by NFS pollution; (2) the need to
protect highly productive, fragile, declining, or unique habitats, such as
wetlands (based on the comprehensive State inventory of waters); (3) the
degree of risk to the ecosystem and human health; and, (4) the need to restore
and/ or maintain waters of special importance to communities, for example
valuable urban waterways. Other programmatic factors, such as the cost of
achieving environmental objectives, workload, and the availability of technical
or financial resources, could also be included.
A schedule, including appropriate milestones, for progressively achieving
environmental objectives in all watersheds within the State. States should
devise schedules that provide for a relatively constant level of effort with the
ultimate goal that environmental objectives, including water quality standards,
be met not later than 15 years after enactment. The schedule should lay out
a logical sequence that provides for early development of plans and
implementation of actions to achieve environmental objectives highest priority
watersheds first; and provide that plans will be approved and adopted for all
priority watersheds within 10 years of enactment. For example, a State might
set a schedule that would provide for plans to be completed in one-third of its
highest priority watersheds in the first three years; those plans would be
implemented while planning was begun in the second tier of watersheds, and
so on. Detailed plans developed by watershed management entities should not
be required in all watersheds; however, the State should be responsible for
attaining and maintaining environmental objectives as expeditiously as possible
but no later than 15 years after enactment in all watersheds.
Designation of watershed management entities and the lead organization of
each entity, as needed. Some watersheds may need minimal work to maintain
or meet the goals of the CWA. For these watersheds it may not be necessary
to establish management teams; rather, actions on the part of a State agency
to ensure restoration or protection or a reassessment at a later date to verify
ecosystem health may suffice. Other watersheds may need intensive
management over time involving many levels of government and other
organizations. In those cases, States should be encouraged to designate new
or existing entities, such as entities administering National Estuary Programs
under CWA §320, to facilitate development of appropriate interstate and
international efforts. Any designated watershed management teams should
include an array of interested and affected parties.
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An identification of State environmental objectives to be adopted and achieved,
as appropriate, by watershed management entities that, at a minimum, consist
of: (a) water quality standards, including, as expeditiously as possible, criteria
for human health, biological, habitat, nutrient and other ecological endpoints,
adopted by the State for each watershed; and (b) other environmental goals
such as acres of various categories of wetlands and percentage of stream miles
with healthy riparian zones. In identifying State objectives for watershed
management, the States should be encouraged to build on existing
Comprehensive State Ground Water Protection Programs.
Necessary components for watershed management planning, implementation,
monitoring, and reporting requirements that must be met in order to qualify for
incentives.
Working cooperatively with other States as appropriate for interstate
watersheds, processes for State approval of watershed management plans,
including public review of plans and for ensuring compliance with other State
and Federal statutes.
A process for State oversight and evaluation of watershed management
planning and implementation efforts.
A process for public involvement in watershed management to the maximum
extent practicable. States should provide public notice and an opportunity to
comment on the State watershed program prior to submittal of the program to
EPA for approval. States should also encourage formation and participation of
public advisory groups during the watershed program development.
A demonstration of the capability to implement the State watershed program,
including enforceable policies and mechanisms and requirements no less
stringent than those established for sources under other sections of the CWA
and other applicable Federal laws and in effect as of the date of program
submission. This should include regulation of private and Federal facilities and
any water allocation or use laws or programs that the State must or elects to
apply.
For each watershed, a description of the process for involving:
o those Federal agencies with a local interest in the watershed;
o those Federal agencies with natural resource trust responsibilities or
facilities or activities within the watershed (States must provide an
opportunity for such agencies to participate);
o those States whose land area encompasses a portion of the watershed;
and
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o those Indian Tribes whose land area encompasses a portion of the
watershed.
States should work with representatives from a broad range of stakeholders,
including all levels of government, during all steps of State program
development. There should be no deadline for submitting State programs;
however, to be eligible for the nonpoint source incentive as described in the
incentives section, certain showings must be made within 30 months of
enactment, and such showings must subsequently be approved by EPA.
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MINIMUM ELEMENTS FOR A WATERSHED MANAGEMENT PLAN
ISSUE:
How can the CWA empower State and local efforts to comprehensively manage
watersheds? What should be required as minimum elements of any watershed
management plan?
BACKGROUND:
The State watershed program provides a logical, risk-based framework for addressing
all watersheds within each State. Successful management of specific watersheds,
however, is critically dependent upon locally-based processes. In many cases, it is
the local citizenry who will implement WMPs and who have the keenest sense of
many of the problems and opportunities presented within the watershed.
Experience with such geographically-based programs as the Clean Lakes Program,
National Estuary Program, Chesapeake Bay, Great Lakes, and Gulf of Mexico Programs
indicates that people are most likely to care about, and care for, the particular body
of water near which they live and on which they depend for drinking water,
recreation, sustenance, or their livelihood. State-designated watershed management
entities will: build on this local commitment; coordinate private sector, regulatory,
and voluntary programs; and comprehensively address cumulative impacts by
developing and implementing solutions appropriate to the particular watershed.
RECOMMENDATIONS:
Amendments to the CWA should direct those watershed management entities or State
agencies that have been designated to carry out watershed-level management under
an approved State watershed program to undertake the following activities:
1. Provide for the participation of all affected and interested parties including all
levels of government, nongovernmental organizations, the private sector, and
the public.
2. Establish a protocol for making decisions and resolving conflicts among
members of the watershed management entity.
3. Establish local environmental objectives for comprehensive watershed
management that would further the goals of the CWA and be consistent with
all applicable State, Tribal, and Federal statutes and regulations, including water
quality standards.
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4. Identify environmental Indicators to be used to monitor and report on
attainment of the environmental objectives.
5. Characterize the watershed ecosystem, including an analysis of the causes and
sources of point and nonpoint pollution as well as an inventory, as necessary
and appropriate, of wetland and ground-water resources and other valuable
aquatic habitat and a description of the major causes of loss and degradation
of these resources in the watershed.
6. Identify specific implementation actions, and, to the extent practicable, their
costs, including voluntary, mandatory, and educational efforts, that will attain
and maintain water quality standards and meet other environmental objectives.
7. Develop a Watershed Management Plan (WMP) that lays out a schedule and
specifies who will oversee implementation as well as the persons responsible
for implementing specific actions under the plan. The WMP should also identify
existing and potential sources of funding for implementation.
8. Implement the plan, evaluate progress toward meeting environmental
objectives, and provide reports to the State consistent with the requirements
specified by the State. Watershed management entities should develop
cost-effective physical, chemical, and biological monitoring programs,
coordinating with and/or incorporating volunteer monitoring as appropriate. The
statute should require that all watershed-level management entities receiving
Federal funding carry out some level of monitoring and assessment of risks to
public health and living resources. The intensity and frequency of monitoring
will vary with watershed goals and degree of risk and should not be specified
in the Act; rather, the statute should require that intensity and frequency of
monitoring be covered by EPA guidance.
9. Identify the enforceable policies, mechanisms and requirements, including those
established for sources under other sections of the CWA, and other applicable
Federal and State law that will be used to enforce the appropriate elements of
requirements of the watershed plan. These policies, mechanisms, and
requirements may be existing or newly-developed, but all must be in effect on
the date of program submission. The policies, mechanisms, and requirements
should build upon, integrate, and be no less stringent than other sections of the
CWA or other applicable federal and State laws. Demonstrate the capacity to
take administrative, civil, and judicial enforcement actions as necessary,
including treating Federal facilities as other facilities would be treated with
respect to requirements in, or developed pursuant to, WMPs.
10. Revise plans and actions as needed to achieve the necessary progress towards
meeting environmental objectives.
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11. Notify all parties of their roles and responsibilities for implementing the plan.
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THE FEDERAL ROLE IN WATERSHED MANAGEMENT
ISSUE:
How should EPA and other Federal agencies with interests in watershed management
provide support and oversee State and local efforts?
BACKGROUND:
Under this watershed approach, both the State watershed program and locally-based
watershed management entities would draw upon the resources, skills, and authorities
of their many participants to carry out their respective responsibilities within the
watershed planning and management context.
For example, within a hypothetical watershed management entity, representatives
from the State might bring to the table their expertise and authorities on managing
point sources and nonpoint sources, and representatives from the U.S. Fish and
Wildlife Service would provide expertise and authority on endangered species and
other living resources. Likewise, representatives from the Corps of Engineers would
bring expertise and authority on flood control and wetlands, and local government
officials would bring land use management expertise and authorities. Also,
landowners and public interest groups and interested citizens would bring their own
professional expertise and personal convictions. The blend of stakeholders will vary
from watershed to watershed, but, if planned properly, the team will identify
problems, set priorities, and conceive and implement solutions with the necessary
authorities to meet environmental objectives.
The challenge for Federal agencies in watershed management is two-fold: first, to
participate; and second, to provide incentives for watershed management; streamline
operations wherever possible, and provide adequate oversight of Federal expenditures.
RECOMMENDATIONS:
Guidance
+ EPA should confer with appropriate agencies and issue guidance to the States
for the design of their watershed programs. The guidance should describe in
detail how States might best meet the minimum elements set forth in the Act.
+ In addition, Federal agencies should provide States and watershed entities with
information on non-water quality considerations and national interests in them
which may be appropriate for consideration in formulating environmental
objectives, such as energy development and conservation, transportation, etc.
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Approval
The statute should require States to submit their watershed program to EPA
and provide that within 180 days of receipt, EPA-after conferring with other
Federal agencies to allow consideration of other national interests-should
approve or disapprove the program. Any disapproval should be in writing and
should specify any modifications that are necessary for approval. Approval
would need to occur before States would be eligible for the benefits specified
in the following discussion regarding incentives for watershed management.
In any case where EPA disapproved a State program, the State should have six
months to amend the program.
Review
Success of the watershed program should be measured in terms of: (1)
environmental conditions; (2) programmatic changes; and (3) changes in risks
to public health and living resources.
Every year following State watershed program approval, each State with a
watershed program should submit a summary status report on accomplishment
of action items, identification of environmental indicators (including indicators
of physical, chemical, and biological health), and progress toward achieving
environmental objectives specified in the State watershed program. To the
extent practicable, Federal agencies should permit the use of State watershed
program status reports to satisfy reporting requirements under other sections
of the CWA and other Federal programs.
Every five years following State watershed program approval, the States should
submit a revised State watershed program. EPA, after conferring with
appropriate Federal agencies, could disapprove a revised State watershed
program if:
o the program did not meet the purposes of the watershed management
provisions;
o the State was not meeting milestones as specified in their watershed
program schedule; or,
o the State was not making reasonable progress toward meeting its stated
environmental objectives.
As with initial program approval, any disapproval of a revised State watershed
program should be in writing and should specify any modifications that are
necessary for approval, and the State should have an opportunity to amend the
program as specified by EPA. EPA and other Federal agencies should advise
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States and local units on how to improve performance, as appropriate. In
States where plans were not being developed, or where WMPs are not being
implemented, EPA could withdraw financial support and rescind incentives.
Revocation of Incentives
» If at any time EPA, after conferring with other Federal agencies, finds that
o a State watershed program did not meet the requirements of the
watershed management provision;
o an approved State watershed program schedule is not being met; or
o the practices and measures proposed in watershed management plans
under the program are not adequate to attain the stated environmental
objectives,
then EPA should notify the State, in writing, of any revisions or modifications
necessary to meet requirements of the watershed management provisions and
hence to continue to receive incentives. As with program approval and review,
the State should have an opportunity to amend the program to meet the
requirements specified. EPA should determine whether requirements have been
met as expeditiously as possible. If EPA determined that the State had not met
the requirements or if the State failed to submit a revised program, then EPA
could revoke such incentives as deemed appropriate.
Intergovernmental Coordination
* The statute should provide for the establishment of a committee-including
representatives from Federal, State, and local governments~to coordinate
support of watershed activities, including the development and provision of
technical tools and training to improve watershed management capabilities.
* Although not requiring a statutory amendment, Federal agencies should:
participate in watershed-level management, use their authorities and coordinate
their priorities to promote watershed management, and, implement their
programs to the maximum extent practicable in accordance with
State-approved WMPs. In addition, Federal agencies should provide States and
watershed entities information on non-water quality considerations and national
interests, such as energy development and conservation, transportation, etc.,
that may be appropriate for consideration in formulating environmental
objectives. In those areas of the country that did not fall under the jurisdiction
of States with approved watershed programs, Federal agencies should use a
watershed approach to the maximum extent practicable in implementing Federal
programs.
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Enforcement
Because the watershed program would integrate existing authorities,
enforcement responsibilities under the CWA would be applicable within the
watershed program through the individual authorities and responsibilities
provided under other CWA sections. For example, NFS pollution controls
would be Federally enforceable in the watershed context through §319, and
point source control enforcement responsibilities under § §402 and 404 would
apply within the watershed context.
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INCENTIVES FOR WATERSHED MANAGEMENT
ISSUE:
What incentives are necessary to promote State adoption of watershed programs?
BACKGROUND:
Significant enthusiasm already exists for the watershed approach. This may be
attributed to the fundamental logic of organizing water resource programs within
naturally-defined areas and a belief that the approach will help programs to operate
more efficiently and effectively. In North Carolina, for example, both point and NPS
water quality issues are being addressed simultaneously under one plan for each of
seventeen basins. Other States and localities are incorporating such issues as water
quality, wetlands, ground water, drinking water, living resources, and flood control
into comprehensive basin management plans. It is important to sustain the current
enthusiasm and commitment to the watershed approach at both the State and local
levels.
It must also be recognized that a great deal of effort may be required to achieve
programmatic changes and to implement a truly comprehensive approach with broad
environmental objectives that may go beyond the scope of traditional water quality
standards. For example, State departments that deal with health, agriculture,
fisheries, and the environment may need to coordinate and integrate assistance to and
participate in watershed management efforts. In addition, States need to ensure that
plans will actually result in actions.
Currently, there are several separate grant authorizations that support water programs
under the CWA. Administering these separate grants with their distinct requirements
imposes a large burden on the States. To comply with the requirements of the CWA,
each grant must be individually applied for, matched, managed, tracked, and closed
out. These requirements impose duplicative administrative procedures and thereby
divert scarce resources that States could allocate to water program implementation
activities. In addition, States must meet different matching fund requirements for
each of these grants.
For these reasons, financial and regulatory incentives need to be sufficient to ensure
widespread application in accordance with the purposes of the watershed
management provisions of the Act.
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RECOMMENDATIONS:
Recommendations for incentives for State participation fall within two major
categories: (1) incentives that require amendments to the CWA, and (2) those that
can be provided through administrative actions. Some incentives would be authorized
upon EPA approval of a State's management program; others would be authorized
after additional conditions or approvals were met.
Incentives Requiring Amendments to the CWA
Funding
The Administration proposes that the Act be amended to establish a "multi-
purpose" State water grant. States with approved watershed management
programs would be allowed to apply for a multi-purpose grant that would
provide single application, work plan and review, matching, oversight, and end-
of-year close-out requirements. Consolidating these requirements would allow
States to focus activities funded under different statutory authorities [sections
104(b)(3), 104(g), 106, 314(b), 319, and 604(b)] in watersheds on a priority
basis consistent with approved State watershed management programs. In
addition, under the multi-purpose grant provision, States should match Federal
funds at 40 percent in Fiscal Year 1995 and 50 percent in Fiscal Year 1996
and beyond.
The Act should expand SRF priority systems and project priority lists to include
all SRF-eligible activities, and should encourage States to include among the
factors considered in the SRF priority system projects contained within
approved watershed management plans. (See the discussion "Project Targeting
and Priority Setting" in the Chapter on Funding.)
Section 604(b) should be amended to allow States with approved watershed
programs to reserve, specifically for watershed management planning, an
additional two percent over the currently authorized "planning" reservation of
one percent of the funds allotted under §604.
Also, the statute should reserve a significant percentage of any future increases
to funds annually appropriated under §319(h) to support the implementation of
NPS pollution control measures under State-approved watershed management
plans.
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Nonpoint Source Controls
> The Administration proposes revisions to §319 that would provide for the
application of best available management measures to both existing and new
sources in impaired and threatened watersheds and to new sources in all other
watersheds. States should establish best available management practices as set
forth in national guidance by EPA or equivalent site-specific plans under the
Administration's proposed NPS program unless they can identify alternative
nonpoint source management practices or methodologies for developing such
practices that will attain the environmental objectives established under the
watershed program, including water quality standards, as expeditiously as
practicable, but not later than 15 years after enactment. To be eligible for this
incentive, States should show that they will employ an iterative approach so
that alternative nonpoint source controls are implemented within ten years of
enactment, followed by monitoring and by additional controls if necessary.
Alternative practices or methodologies should be submitted to EPA for approval
not later than two and one half years after enactment. If EPA approves such
alternative practices or methodologies, then the State's nonpoint source
management program may rely on such practices of methodologies. All
alternative watershed nonpoint source control practices and milestones for
implementation would need to be identified in the appropriate watershed
management plans adopted under the State's watershed program.
+ In accordance with the Administration's proposal for NPS controls, NPS
controls would need to be backed by adequate policies, mechanisms, or
requirements.
> If for any reason the NPS incentive were revoked by EPA, then the State would
need to submit a revised NPS program in accordance with §319, as amended,
no later than one year after the final notice of revocation.
Point Source Control Permits
* For States with approved watershed programs, the Act should allow, at the
State's discretion, a one-time extension of NPDES permit terms up to five years
beyond the current NPDES permit expiration date to give States flexibility to
align the timing of permits for point sources within watersheds. However,
facilities would still be required to timely submit a permit application, and
States would retain the authority to immediately reissue a permit to any facility
if the permit application indicates an impairment of water quality. The
permitting authority could revoke the extension and issue a new permit
requiring immediate compliance if the permitting authority~at any time during
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the extended term of the permit-determined that additional permit limits were
necessary to control potential negative impacts of the facility.
> In addition, in watersheds with State-approved watershed management plans,
the statute should allow EPA, or any State with §402 permit authority, to issue
a 10-year permit to any point source located in the watershed, if water quality
standards were being met in the waters to which the point source discharged
at the time of permit issuance and if, for the period encompassed by the
permit, the plan provided for the maintenance of water quality standards.
> Finally, the Act should allow that an amount equal to the fees collected
pursuant to proposed subsection 402(s) may be discounted from the required
amount of State matching funds for Federal funds made available to the State
pursuant to section 106 if the State had an approved watershed program.
Criteria/Standards
> In the event that the CWA continues to require a triennial review process, the
statute should extend the period for a comprehensive review and revision of all
use designations, criteria, and antidegradation policies to five years for States
with approved watershed programs. This longer period of review would allow
for additional flexibility in review time to provide greater consistency with
watershed planning efforts.
Federal Consistency
» To the extent that a State-approved watershed management plan imposed new
requirements that were not otherwise provided under sections 301, 302, 303,
306, and 307, or any State law, §401 should provide the State authority to
certify whether Federal permits or licenses comply with such requirements.
Drinking Water Requirements
» The Administration proposed changes to the Safe Drinking Water Act (SDWA)
that would allow for tailored prevention, monitoring, and treatment alternatives
where watershed protection measures had been taken to protect drinking water
sources. If such proposed changes were incorporated into the amended
SDWA, alternative regulatory approaches would be allowed within watersheds
provided the State-approved watershed management plans met all source water
protection conditions of the amended SDWA.
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Incentives Provided Through Administrative Actions
Multi-year Work Plans
> Alignment and streamlining of grant cycles and procedures, and provision of
multi-year planning would reduce paperwork and otherwise simplify watershed
management activities. Because no change to the CWA is necessary to
accomplish this, EPA will pursue the establishment of this incentive in
administrative contexts.
Streamlining Operations
+ To the maximum extent feasible, approved State watershed programs would
fulfill inventory, ranking, planning, and reporting requirements under §208,
§303(d), §303(e), §30S5(b), §304(1), §314, §319, §320 and other programs,
such as Wetland Conservation Plans, USDA River Basin Plans, and State
Coastal Nonpoint Pollution Programs under the Coastal Zone Management Act
Reauthorization Amendments of 1990, provided that the State watershed
programs met the particular requirements of the other programs listed above.
Technical and Financial Support for Wetlands Protection
> State-designated watershed management entities requesting support for
wetlands identification and mapping, functional evaluation, restoration planning,
and/or private or public initiatives would be considered high priority for
receiving Federal technical and financial support.
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WATERSHED MARKET-BASED APPROACH
ISSUE:
Consistent with Vice President Gore's National Performance Review, how should
pollutant trading be encouraged and implemented in the reauthorized CWA to promote
market incentives that reduce pollution?
BACKGROUND:
Trading programs are proving to be a successful and cost-effective approach for
reducing air pollutant emissions under the Clean Air Act. Similarly, trading of pollutant
reduction credits among different sources and other market oriented mechanisms like
bubbles or averaging will offer an important means to lower the cost of meeting CWA
goals. In fact, several case studies in North Carolina, Colorado, and Wisconsin show
that the trading of pollution credits holds considerable promise for reducing water
pollutant loadings, particularly nutrients. As many as 943 water-quality limited water
bodies could benefit from nutrient trading.5
Under trading, sources with low control costs would make arrangements with sources
facing high control costs. The low-cost sources would undertake additional pollutant
reductions in exchange for financial compensation from the high-cost sources.
Sources with higher abatement costs would undertake less control efforts, while
acquiring additional reductions from other, lower-cost sources.
Trading agreements involving the exchange of pollution reduction responsibilities may
take many forms. Dischargers might for example pay for upgrading on site treatment;
finance nonpoint source controls directly; contribute to a fund to implement nonpoint
source controls individually or on a basin-wide scale; contract directly with third
parties or sources to install and/or maintain nonpoint source controls; negotiate
directly with other sources (point or nonpoint) to achieve needed water quality-based
pollution reductions; agree to alter behavior; or pu~chase land or facilities for purposes
of instituting or enhancing treatment.
Since the success of trading programs depends on the voluntary participation of
independent sources, the responsibilities of trading partners need to be carefully
defined. Trades should shift the responsibility for the agreed to controls entirely from
the buyer to the seller, who would then be subject to enforceable requirements
stemming from the trade itself.
5 See Podar, M., and M. Luttner, "Economic Incentives in the Clean Water Act:
Some Preliminary Results", presented at the Air and Waste Management Association,
June 1993.
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Successful trading requires that the costs of transacting trades be kept low. Criteria
for prior approval can facilitate trades by reducing the costs associated with delays
and uncertainty over what trades might be considered valid by enforcement
authorities.
Another important element of transactions costs is the additional monitoring of
loadings reductions that may be associated with a trade. Such monitoring may be
quite costly for many nonpoint sources. Reasonably reliable and unbiased estimates
of loadings derived from models of runoff may be adequate in lieu of on-site
monitoring but this issue should be the subject of further study.
For those pollutants for which total maximum daily loads (TMDLs) are established
under CWA Section 303(d), the TMDL process can be used as a basis for trades.6
Once a TMDL has been established, sources of pollution may exchange, trade, buy
or sell reductions within the geographic area covered by the TMDL. Point source
effluent limits can be designed to meet water quality goals and at the same time
reflect trading agreements among the pollution sources.
Trading may occur among point sources, between point sources and non-point
sources, or among nonpoint sources. It might even include inter-media trading, if, for
example, emissions through air deposition contribute to water pollution. Nonpoint
source trading is especially important because the control costs may be substantially
less than those for point sources, although issues related to the measurement and
timing of loadings need to be addressed.
A final possibility for trading is among indirect industrial dischargers who discharge
to a given publicly owned treatment works. Since such discharges all enter the
environment at a single discharge point, the possibility of "hotspots" of pollution is
eliminated.
RECOMMENDATIONS:
> EPA should conduct a study to assess trading opportunities for conventional
pollutants, between pollutants with similar environmental effects, for toxic
pollutants, between different media, and among a variety of point and non-
point sources. The study should also evaluate how best to implement such
trades.
6 TMDLs are the maximum loadings that a waterbody can assimilate without
violating water quality standards.
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The Act should authorize EPA to publish a guidance document, using the
results of its study and after conferring with Federal and State agencies, about
trading of pollutants. The guidance should:
o establish criteria to allow for prior approval of trades by State permitting
authorities and by agencies that administer control programs,
o specify that trades shall not violate water quality standards,
o specify that where water quality standards are not met, trades based on
TMDLs may still take place,
o identify settings in which reasonably accurate and unbiased estimates of
pollutant loadings based on models may be suitable for use in trades that
the high cost of on-site monitoring would otherwise prohibit,
o clarify that the anti-backsliding clause of the CWA (Section 402(o)) does
not prohibit trading, and
o authorize trading among indirect industrial dischargers to the same
publicly owned treatment works.
EPA should report to Congress about the likely environmental and economic
costs and benefits of trades that would allow sources to increase on-site
pollutant loadings above more stringent technology-based effluent limits.
EPA should be authorized and directed to undertake demonstration projects to
implement inter-media pollutant trading in order to evaluate the environmental
and economic benefits of such pollution trading. Some of these projects will
demonstrate the concept of "risk bubble," for which a facility emitting pollut-
ants to more than one medium is permitted to meet overall health and
environmental risk reduction targets by obtaining pollution reductions anywhere
within the facility, irrespective of receiving media. Other projects will
demonstrate the concept of "inter-media loadings trading," a program allowing
TMDLs in a watershed to be met (or maintained) by sources trading loadings
reductions irrespective of the original receiving medium. For instance, an
electric utility with nitrogen dioxide emissions that contribute to fertilization of
the Chesapeake Bay could meet its nitrogen dioxide reduction targets by paying
farmers to reduce fertilizer use. No projects should be undertaken without the
prior consultation and consent of the appropriate State, Territorial, or Tribal
authorities.
The Administrator should regularly confer with the States on the activities
under this section, and, within four years of enactment, submit a report on the
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environmental and economic benefits and costs of the projects above to
Congress and participating states. The report should identify existing technical,
regulatory, and financial impediments to adopting such approaches examined
in the projects and shall make recommendations, as appropriate, to facilitate
their adoption.
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RESTORATION OF URBAN WATERS
ISSUE:
How can the Clean Water Act empower local efforts to restore urban waterways,
especially those in communities that have been disproportionately impacted by
environmental degradation?
BACKGROUND:
While rivers, streams, and lakes in the nation's metropolitan areas supply drinking
water to 200 million U.S. citizens and together with urban wetlands, provide
recreational opportunities for millions more, these waters are among the nation's most
degraded. Channelization, runoff from nearby agriculture, runoff from city streets and
lawn care, spills from trash disposal, removal of important nearby vegetation, and
combined sewer overflows pose unique threats to rivers and streams running through
the nation's cities.
While a number of provisions within the Clean Water Act already address certain
aspects of urban river pollution including urban storm water, nonpoint sources,
combined sewer overflows, and water quality standards, the severity of the
degradation calls for specific attention to directly address problems unique to many
urban communities. The benefits of an urban restoration program extend beyond safe
drinking water and include opportunities for recreation, subsistence fishing,
employment and economic development.
Experience demonstrates that urban river restoration efforts are most successful if
carried out by those living on or near the streams in conjunction with a state or local
conservation corps and State and local government entities. Technical assistance can
be provided by the many successful state urban restoration programs or by federal
agencies, such as the National Park Service's Rivers and Trails Technical Assistance
Program, which has great expertise and experience through its "Metropolitan Rivers"
program.
RECOMMENDATIONS:
Amendments to the Clean Water Act should emphasize restoration of urban waters
by:
*- encouraging States to give urban watersheds a high level of priority in their
State-wide ranking of watershed initiatives;
> requiring States to monitor and report on the quality of urban waters when the
States submit periodic reports to EPA on water quality;
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authorizing the use of the State Revolving Loan Fund to support riparian
restoration in urban waters; and
encouraging neighborhood or regional nonprofit watershed citizen groups and
councils to develop consensus watershed restoration strategies, conduct
volunteer monitoring programs, and build long-term commitments within
communities to protect water resources.
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CHAPTER 5--ENFORCEMENT
CIVIL JUDICIAL ENFORCEMENT AUTHORITIES
ISSUE:
Should the CWA's civil judicial enforcement provisions be modified in several ways
to improve the United States' enforcement capabilities?
BACKGROUND:
Establishing Economic Benefit as a Minimum Penalty Requirement
The CWA provides that any person who violates the Act shall be subject to a civil
penalty, which may be imposed judicially under CWA §309(d) or administratively
under §309(g). Section 309(d) and (g) establish statutory maximum penalty amounts
and provide factors to be considered in assessing penalties, one of which is the
economic benefit obtained by the violator through the violation. These sections do
not mandate the imposition of any minimum penalty, however, and thus allow a court
or administrative law judge to award penalties that do not recoup a violator's
economic benefit, which in fact, has happened in recent cases. Such decisions
undermine the deterrent value of penalties under the Act, making it economically
advantageous to violate the CWA. The Act would also be strengthened if, in those
instances in which the economic benefit of noncompliance exceeded $25,000 per
violation per day, the court were still required to order a penalty sufficient to recoup
economic benefit so as to ensure that no violator profits from noncompliance.
Examples of Appropriate Injunctive Relief
CWA §§309(b) and 505 authorize the United States and citizens, respectively, to
seek injunctions to redress violations of the Act. These sections provide no specificity
as to the type or nature of the measures that a court may order in an injunction. The
United States takes the view, particularly in the context of §309(b), that a court may
order any measure designed to effect compliance or to remedy the harm caused by
a violation. With respect to remediation, the Administration recognizes that court-
ordered remediation must have a net environmental gain and must not conflict with
clean-up activities under other federal statutes. This view could be better supported
if there were greater specificity in §§309(b) and 505 on this point.
Entitlement to Equitable Relief
Some cases have interpreted the CWA to require that the traditional common law test
for issuance of an injunction must be met before a Federal court may enjoin violations
of the CWA. The test for a permanent injunction is: (a) failure to issue the injunction
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would result in irreparable injury; (b) legal remedies are inadequate; (c) issuance of the
injunction is in the public interest; and (d) the benefits of enjoining the defendant
outweigh the injuries that will result. This traditional equitable test can be difficult to
meet in environmental cases in which evidence of environmental harm is often
unavailable.
Anticipatory Enforcement
CWA §309(a)(3) authorizes EPA to issue an administrative order or commence a
judicial action when a person "is in violation" of the CWA. The section does not
expressly authorize EPA to act prior to a violation to prevent its occurrence or lessen
the harm that may result from it. In contrast, many Federal laws authorize Federal
agencies to enforce to prevent threatened or anticipated violations. For example, EPA
is presently authorized to take enforcement action to prevent anticipated violations of
the SDWA.
Recovery of Enforcement Costs
Currently, the CWA (and the Oil Pollution Act (OPA) for action taken under CWA
§311) does not authorize the government to recover the costs of enforcement and
oversight of cleanup and compliance measures. The Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) and CWA §311 allowthe United
States to require responsible parties to conduct such clean-ups or to conduct its own
cleanup of oil and hazardous substance spills financed by a government fund.
CERCLA further allows the government to recover costs from responsible parties,
including the costs of bringing enforcement and overseeing cleanups. Similarly, the
OPA allows the government to recover removal costs from responsible parties.
In Rem Authority Over Polluters
Unlike many other statutes governing vessel owners or operators, §311 does not
provide the government with in rem authority for enforcement. Many violators of
§311 are asset poor, except for the vessels they own or operate, and in many cases
such as those involving foreign violators, other assets are difficult to encumber.
Enabling the U.S. to seize the assets of such violators is essential to control such
offenders.
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RECOMMENDATIONS:
The Administration recommends that the CWA be amended as follows:
Establishing Economic Benefit as a Minimum Penalty Requirement
* Amend CWA §§309, 311(b), and 404(s) to require that a court in a civil
penalty proceeding, and an Administrative Law Judge in a class II
administrative penalty proceeding, must, at a minimum, impose a penalty that
recoups the economic benefit, if any, that accrued to the violator as a result of
the violations. This rule would be subject to exceptions for cases against
publicly and Federally owned treatment works. Further, amend these sections
to revise the statutory maximum penalty in civil judicial cases such that
whenever the economic benefit amount, if any, exceeds the statutory
maximum of $25,000 per day of violation, the economic benefit amount will
supersede the $25,000 per day of violation statutory maximum. Finally,
require EPA to undertake a study of its economic benefit model, and its
application to private and public entities.
Examples of Appropriate Injunctive Relief
> Modify CWA § §309(b) and 505(a) to specify the types of injunctive relief that
are appropriate for the court to order, including remediation of environmental
harm associated with violations through such measures that include (but are
not limited to): removal of dredged or fill materials and contaminated
sediments, clean-up of waterways and banks of waterways of illegally
discharged pollutants, environmental auditing, installation of temporary or
permanent treatment facilities, prohibition of additional sewer or wastestream
connections, and temporary or permanent cessation of activities related toand
that caused-the violation. The cost of compliance with an injunction to
remediate the environmental harm associated with violations should not be
capped at the maximum civil penalty. In actions under §505(a), the court
should be required to notify EPA and allow EPA an opportunity for comment
before issuing an order requiring remediation of environmental harm, to ensure
net environmental benefit from the remediation and to avoid duplication or
inconsistency with clean-ups under other federal statutes.
Increase the Judicial Maximums for §311 Civil Penalties
To conform with increased administrative penalties under §311, increase civil
judicial penalties authorities as follows:
» CWA §311(b)(7)(A) should be amended to increase the statutory maximum
penalty available in a civil judicial action for discharge of a barrel of oil or
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reportable quantities (RQ) of hazardous substance from $25,000 per day of
violation and $1,000 per barrel of oil or RQ of hazardous substance discharged
to "$100,000 per day of violation and $3,000 per barrel of oil or RQ of
hazardous substance, whichever is greater." "Whichever is greater" should be
added to clarify the existing, ambiguous language, not to increase the penalty
calculus.
* CWA §311(b)(7)(D) should be amended to increase the statutory maximum
penalty available in a civil judicial action for discharge of a barrel of oil or RQ
of hazardous substance that results from gross negligence or willful misconduct
from not less than $100,000 or not more than $3,000 per barrel of oil or RQ
of hazardous substance discharged to "not less than $500,000 per day of
violation and $5,000 per barrel of oil or RQ discharged, whichever is greater."
Entitlement to Equitable Relief
> Modify the Act to require a district court to issue an order for compliance upon
a finding of liability in every CWA civil case, unless the defendant establishes
a high probability that violations will not recur. The court would retain
equitable power to fashion an appropriate remedy. Further, the traditional tests
for determining whether to issue a temporary restraining order or a preliminary
injunction would continue to apply.
Anticipatory Enforcement
> Modify CWA §309(a) to authorize EPA to issue an administrative compliance
order and bring a civil action for injunctive relief for anticipated violations of the
Act. To be actionable, an anticipated violation would have to be "clearly
foreseeable." A compliance order issued for anticipated violations should be
enforceable in court.
Recovery of Enforcement Costs
+ Modify CWA §309 to authorize the Department of Justice, EPA, the Corps of
Engineers, and the Coast Guard to recover from the violator the costs of
bringing enforcement actions and of administering compliance and cleanup
measures. Any costs recovered would be deposited into the U.S. Treasury.
Also modify CWA §311 (b) and §1002 of the Oil Pollution Act to authorize the
Department of Justice, EPA, the Corps of Engineers, and the Coast Guard to
recover from the violator the costs of bringing §311 civil judicial and
administrative enforcement actions. Any such costs recovered under the OPA
for activities under CWA §311 would be deposited into the Oil Spill Liability
Trust Fund. These costs should not be recoverable in CWA administrative
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enforcement actions brought by EPA, the U.S. Coast Guard, or the Army Corps
of Engineers against Federal facilities.
Provide In Rem Cause of Action
» Amend §311(b)(6) to include a paragraph providing that any vessel operating
in violation of §311 shall be liable for any civil penalty or criminal fine assessed
for the violation. Amend §311 (b){7) similarly to provide for such a remedy in
instances where an owner or operator has failed to comply with a response
order issued under §311 (c) or §311 (e). Provide venue in any district court in
which the vessel may be found.
MINOR/TECHNICAL CHANGES:
> CWA §309(e) requires the United States in any civil judicial enforcement action
against a municipality to join as a party the State in which the municipality is
located. The State is then liable for any judgment that might be imposed
against the municipality, to the extent that laws of the State prevent the
municipality from raising revenues needed to comply with the judgment. The
purpose is to assure that municipalities are not prevented from complying with
the CWA by funding restrictions imposed on them by the State. In many
actions, however, the ability of the municipality to satisfy the judgment
obtained against it is not in issue. In such cases, joining the State is
unnecessary and only serves to increase litigation burdens on all concerned.
Accordingly, CWA §309(e) should be modified to remove the requirement that
the State always be joined as a party in suits brought by the U.S. against
municipalities. Instead, §309(e) should give the U.S. discretion to seek to join
States when State law could interfere with a municipality's ability to satisfy a
judgment.
> Amend the CWA to assure that the five year statute of limitations applicable
to penalties, set forth at 28 U.S.C. §2462, is not applicable to injunctive relief.
> CWA §509(b) precludes judicial review in an enforcement action of certain
decisions by EPA, such as promulgation of certain regulations or issuance of a
§402 NPDES permit, which could have been otherwise challenged in a separate
judicial proceeding. The effect of this provision is to prevent, for example, a
defendant from raising as a defense to an action for violating a permit that
terms in the permit were improperly imposed. This provision should be
extended to preclude judicial review in an EPA enforcement action of State
decisions, such as State issuance of NPDES or 404 permits, which could have
been otherwise challenged in State court.
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CWA §307(d) makes it unlawful to discharge wastes to a publicly owned
sewage treatment plant in violation of any effluent standard or prohibition or
pretreatment standard promulgated under §307. EPA has taken the view that
ordinances enacted by a local POTW authority that are designed to ensure
compliance with the POTW's approved pretreatment program ("local limits") are
within §307(d)'s enumeration, hence are Federally enforceable. Sections
307(d), 309(a) and 309(c) should all be amended to clarify that all pretreatment
standards and requirements, whether in Federal regulations, Federally issued
pretreatment permits, federally approved State or local pretreatment programs,
or State or local pretreatment permits issued pursuant to a Federally approved
pretreatment program are all Federally enforceable in administrative, civil
judicial, and criminal proceedings. This section should also be revised to state
expressly that it covers violations by any person, regardless of whether that
person is an owner or operator.
Amend the CWA to authorize a court in judicial cases, and EPA, the Coast
Guard, and the COE in administrative cases, to pay an award, out of penalties
imposed, for information that results in imposition of a civil penalty for
violations of the Act. Such awards would be made only if information provided
materially assisted the United States in obtaining the civil penalty or injunctive
relief and should be limited to a maximum of 45% of the penalty imposed by
the court or hearing officer. EPA already has such authority under the Clean
Air Act (CAA) and CERCLA.
For purposes of calculating an appropriate civil penalty, add to the factors
currently to be considered under CWA §§309(d), 309(g)(8), and 402(s)(4),
"any penalty already assessed for the same violations." The economic-benefit
minimum penalty could be reduced by any penalty already assessed for the
same violation. Also amend §311 to change "any other penalty for the same
incident" to "... same violations."
Amend sections 404(s) and 309(g) to clarify the U.S. Army Corps of Engineer's
authority to bring enforcement actions for unpermitted discharges of dredged
and fill material in violation of CWA §301 (a).
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FEDERAL FACILITIES
ISSUE:
In April 1992, the U.S. Supreme Court ruled in Department of Energy v. Ohio. 503
U.S. --,118 L.Ed.2d 255 (1992), that the United States had not waived its immunity
to punitive penalties, i.e. penalties for past violations, under either the citizen suit
provision or the Federal facility provision of the CWA or the Resource Conservation
and Recovery Act (RCRA). in October 1992, partially in response to the DOE v. Ohio
decision, Congress passed the Federal Facility Compliance Act which (1) waived the
Federal government's immunity from penalties for violations of RCRA and (2) provided
EPA with administrative order authority against Federal facilities. However, sovereign
immunity under the CWA was left unaddressed by this legislation. How should the
CWA be amended with regard to compliance of federal facilities?
BACKGROUND:
Federal Facility Compliance Rates Under the NPDES Program
In December, 1988, the General Accounting Office (GAO) released a report entitled
Water Pollution: Stronger Enforcement Needed to Improve Compliance at Federal
Facilities. The report stated that the Federal facilities' rate of noncompliance with
CWA program requirements was twice that of non-Federal industrial facilities. Current
compliance data indicates that improvements have been made in compliance since the
1988 GAO Report, but that Federal facilities consistently demonstrate higher
Significant Non-compliance rates than private facilities. GAO cited the low priority
that Federal facilities have assigned to compliance with pollution discharge
requirements and corrective action as fundamental barriers to CWA compliance at
these facilities.
The report also noted that both regulators and Federal agency officials agreed that
enforcement actions against non-compliant Federal facilities resulted in increased
priority of environmental compliance and prompt corrective action. EPA regional
officials stated that the reason they do not often take enforcement actions against
Federal facilities in authorized States, where the State does not act, is that the limited
enforcement tools available to EPA at Federal facilities impede timely and effective
resolution of enforcement actions. GAO noted a reluctance among EPA regional staff
to use negotiated compliance agreements at Federal facilities and a tendency to rely
on State administrative or judicial actions to ensure compliance. However, due to the
DOE v. Ohio decision, incentives for State and citizen enforcement are limited (see
discussion below). The Administration recognizes that enforcement is only one tool
being used in achieving compliance at Federal facilities and supports efforts by Federal
facilities to achieve compliance through pollution prevention, self auditing, and other
efforts.
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Department of Energy v. Ohio: Overview and Effect
On April 21, 1992, the United States Supreme Court held that Congress had not
waived Federal sovereign immunity from liability for civil, "punitive" fines imposed by
a State for past violations of the CWA. The Court distinguished between "punitive"
fines and "coercive" fines, holding that Federal agencies could be liable for fines
imposed by courts to induce them to comply with injunctions or other judicial orders
designed to modify behavior prospectively. The Court determined that (1) §313 of
the CWA does not subject Federal facilities to statutory penalties despite the word
"sanction" in the section, and (2) fines provided for in State statutes that are part of
a Federally approved State permit program do not "arise under Federal law" as
required under the waiver of sovereign immunity set forth in the CWA. A subsequent
case, Sierra Club v. Lujan. 972 F.2d 312 (10th Cir. 1992), further held that even
when the Federal government has violated a permit issued directly by EPA "under
Federal law," the result is the same-no waiver of sovereign immunity for punitive
penalties.
Pursuant to these cases, States cannot obtain penalties from Federal facilities for past
violations of the Act. Despite the GAO finding that enforcement actions against non-
compliant Federal facilities result in increased priority of environmental compliance and
prompt corrective action, the deterrent value of punitive fines is not in the arsenal of
State and citizen enforcement tools- EPA's enforcement tools are also limited under
the Act due to the absence of an effective administrative procedure for Federal
facilities enforcement.
RECOMMENDATIONS:
The Administration recommends that the CWA be amended as follows:
> Amend §313 of the CWA to clearly waive the United States' sovereign
immunity (for violations occurring after the effective date of the amendments)
to allow citizens (including States acting as citizens) to seek penalties for all
CWA violations by Federal facilities for which a private person would be liable
and to allow States to obtain penalties for Federal facility violations of
requirements in State water laws respecting the control and abatement of
water pollution when those penalties would go to a State environmental trust
fund. This amendment would parallel the Federal Facility Compliance Act,
which clarified the waiver of sovereign immunity under RCRA.
> Amend §502(5) of the CWA to include the United States in the definition of
"person." Amend §311(a)(7) to include the United States in the definition of
"person" for enforcement purposes only.
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Amend §309 of the CWA to establish an administrative enforcement process,
based on the §3008 of RCRA and the Federal Facility Compliance Act, that will
allow EPA to: issue compliance orders to Federal facilities; enforce these orders
through the administrative hearing process; and, assess penalties against
Federal agencies for violations of the CWA and the orders.
o This administrative enforcement provision would mirror the RCRA
enforcement provision, creating a single administrative process for RCRA
and CWA enforcement at Federal facilities.
o The provision would ensure that Federal agencies have an opportunity
to contest administrative orders through the administrative hearing
process established at 40 CFR Part 22, thus granting Federal agencies
access to a formal hearing similar to the judicial hearings available to
non-Federal entities.
o The respondent Federal agency should have an opportunity to confer
with EPA prior to an order or a field citation against a Federal facility
becoming final as is provided in the Federal Facility Compliance Act.
o Citizen actions would be precluded to the extent that the Administrator
or the Secretary of the Army had initiated and was pursuing or had
completed an administrative enforcement action against a Federal facility
for the same violation. In any such action interested persons should
have an opportunity for notice, comment, and under certain
circumstances, intervention. This preclusion would not apply to
allegations of imminent and substantial endangerment in citizen suits
unless the Administrator has commenced and is diligently prosecuting an
administrative action against a federal facility under Section 504.
All funds collected by a State from the Federal Government for violation of
substantive or procedural requirements referred to in subsection (a) of section
313 of this Title would be used by the State only for projects designed to
improve or protect the environment or to defray the costs of environmental
protection or enforcement.
In any case, the amendments should not alter in any manner existing
agreements, permits, compliance agreements, or administrative or judicial
orders.
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The amendments should not affect existing provisions stating that Federal
employees are not personally liable for civil penalties resulting from acts or
omissions within the scope of their official duties, and that Federal employees,
but not Federal departments or agencies, should be subject to criminal
sanctions.
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CRIMINAL ENFORCEMENT
ISSUE:
There are several important criminal enforcement issues which should be addressed
by any reauthorization and amendment of the CWA. First, the knowing endangerment
provision should be strengthened and improved, especially in light of two recent,
unfavorable judicial decisions. Second, the felony sanctions for knowing violations
of the Act should be increased, consistent with similar provisions in the hazardous
waste and clean air areas. Third, the false statement provision should be improved.
Finally, amendments are recommended with respect to disposition of criminal fine
money, to permit citizen awards, fine-sharing with States.
Experience gained over time indicates that these and other criminal enforcement
provisions require clarification, refinement, or upgrading, as set out below.
BACKGROUND:
CWA §309(c) provides that criminal sanctions can be imposed for four principal types
of violations under the CWA: negligent violations; knowing violations; knowing
violations that place another person in imminent danger of death or serious bodily
harm; and, knowing false statements or tampering with a monitoring device required
by the statute.
Criminal prosecutions under these provisions are intended to punish violators and
deter future violations of the CWA. The threat of criminal sanctions for negligent or
knowing failures to comply helps to ensure that those subject to the requirements of
the CWA behave in an informed and attentive manner, and are held accountable if
they do not.
RECOMMENDATIONS:
The Administration recommends that the CWA be amended as follows:
Knowing Endangerment
> Revise CWA §309(c)(3)(A) to overrule the result in United States v. Borowski,
977 F.2d 27 (1st Cir. 1992), reh'g denied (1993), which interpreted the
knowing endangerment provision in an unduly restrictive manner. What the
government should be required to prove for a knowing endangerment
conviction is that the defendant committed a predicate felony and that he knew
at the time that, in connection with, or in the course of, committing that crime
he placed another person in imminent danger of death or serous bodily injury.
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CWA §309(c)(3) should be amended to provide that any knowing violation of
the Act, punishable under §309(c)(2), is a predicate offense for knowing
endangerment.
Delete the subsection which provides for an affirmative defense to knowing
endangerment based on "consent" and "reasonable foreseeability." The
defense was developed originally to apply to a Title 18 knowing endangerment
crime (never enacted), which did not include a predicate offense, but punished
any conduct (whether illegal or not) that caused endangerment. The defense
(which also appears in RCRA and the CAA) is inappropriate as applied to
knowing endangerment crimes that require proof of a predicate offense.
Moreover, it is poor public policy under any environmental statute to allow a
person who has committed a felony to claim as a defense that another person
consented to being a victim of that felonious act.
Clarify that, for purposes of subsection 309(c)(3) only, "imminent danger"
means the existence of a condition or combination of conditions which could
reasonably be expected to cause a threat of death or serious bodily injury
unless the condition is remedied. This is necessary to overrule the unfavorable
decision in United States v. Villeaas. 784 F. Supp. 6 (E.D.N.Y. 1991),
conviction reversed on other grounds, (2d Cir. 1993) (petition for rehearing
pending).
Felony Sanctions
Amend CWA §309(c)(2) to increase the maximum sentence for knowing
violations from the present maximum of 3 years to 5 years for a first offense
(doubled for second offenses). In recent years, Congress has provided that
knowing violations of the RCRA, and of the CAA, are punished as 5-year
felonies. Crimes involving water pollution are as serious as air pollution or
hazardous waste crimes, and sanctions should be equivalent.
Second offenses
Amend CWA §309(c)(1), (c)(2), and (c)(4) to clarify that a previous conviction
under any of these provisions, or under §309(c)(3), will result in enhanced
"second offender" sanctions upon subsequent prosecution under any of these
provisions.
False Statements
Amend CWA §309(c)(4), in a manner similar to its CAA and RCRA
counterparts, to attach felony sanctions to knowing acts of omission and to
increase sanctions to 5 years of imprisonment and $50,000 per day of violation
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with a doubling of maximum sanctions for second offenses. This should
include the knowing omission of required material information from required
documentation, certifications, or reports; knowing failure to maintain required
records; and knowing failure to install, operate, or utilize required monitoring
methods, equipment or devices.
Disposition of fines
> Add to CWA §309(c) a new provision authorizing the court, upon
recommendation of the United States, to pay awards from fines assessed, to
persons providing information that results in criminal conviction for violation of
the CWA. Such awards would be made only if information provided materially
assisted the United States in obtaining the criminal conviction. For examples
of citizen award provisions, see, CERCLA, the CAA, the Act to Prevent
Pollution from Ships, the Refuse Act, and the Endangered Species Act. Such
provisions can aid Federal law enforcement efforts by providing citizens with
extra incentives to report possible violations of the relevant laws.
> Add to CWA §309(c) a new provision authorizing the court, upon
recommendation of the United States, to pay any State or municipality giving
material support to the prosecution, a portion of the fine assessed. The U.S.
has received invaluable assistance from State and local agencies in a number
of its prosecutions, but providing such assistance can be very expensive to
State and local governments given their resource limitations. State and local
governments would be more inclined to support federal efforts if those resource
expenditures were more likely to be returned to them.
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IMPROVING ADMINISTRATIVE ENFORCEMENT
ISSUE:
Effective administrative enforcement measures under the CWA are essential for
aggressive and efficient enforcement against polluters. EPA and Coast Guard
experience with CWA administrative enforcement has demonstrated that there are
several areas where administrative enforcement mechanisms can be enhanced, and
has resulted in identification of several amendments that are essential to effective
implementation of the new enforcement regime.
BACKGROUND:
Administrative Penalty Cap
The $ 125,000 penalty limit on Class II administrative proceedings limits administrative
enforcement efficiency by requiring EPA, the U.S. Army Corps of Engineers (COE),
and the U.S. Coast Guard to refer cases assessing penalties in excess of this amount
to the Department of Justice (DOJ) for filing in Federal district court. This
requirement precludes EPA, COE, and the Coast Guard from using less resource
intensive administrative penalty authority in many instances where it would be useful,
appropriate, and less expensive, to both the agency and the violator.
Class II Penalties for §311 Spilt Violations
Potent deterrence against oil spills and hazardous substance discharge is an
indispensable part of the Administration's enforcement strategy under the CWA. The
U.S. faces increasingly serious environmental threats from the predominance of
foreign flag tankers operating in U.S. waters, as well as the aging infrastructure of
transportation-related and non-transportation-related pollution sources. Eighty-five
percent of vessels entering U.S. ports are foreign flag. The Congress has highlighted
their interest in vigorous enforcement against substandard vessels, especially tankers.
Effective administrative enforcement against spill violations under §311 is critical to
hold foreign flag ships to the same standard of accountability as domestic facilities
regulated under §309.
The current Class II administrative penalty authority is not an effective deterrent
against numerous "medium-sized" spill violations, which clearly warrant higher
penalties envisioned by the Class II option, but do not normally warrant the resource
intensive judicial civil proceeding envisioned for the most grievous spill violations
("major spills"). The maximum penalty of $10,000 per violation per day for spill
violations is weak and unwieldy for the vast majority of "medium-sized" oil spills.
Because of the nature of most 311 spill violations, the duration of the discharge
violation rarely exceeds one day, effectively capping the Class II maximum penalty at
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the Class I level of $10,000 per violation. The glaring defect in the Class II penalty
authority is the absence of the volumetric spill sanction, "per barrel of oil or unit of
RQ," currently provided only in the judicial civil penalty forum. The omission of this
scheme for administrative penalties hampers EPA and Coast Guard ability to apply the
most efficient and effective enforcement tool against these more serious spill
violations.
Class I Penalties for §311 Spill Violations
The current Class I penalty authority is a very weak deterrent in comparison to
comparable environmental and transportation safety statutes, such as the Act to
Prevent Pollution from Ships, the Marine Plastic Pollution Research and Control Act,
and the Ports and Waterways Safety Act. These statutes allow hearing officers to
award administrative penalties of up to $25,000 per violation, with no cap on total
assessments. In contrast, the Class I authority under the CWA is limited to $10,000
per violation, with total assessments not to exceed $25,000, regardless of the
number of violations. The CWA authority should be on par with these other statutes.
Overfiling Authority
The United States currently has authority to file its own judicial or administrative
enforcement action even where a State is diligently pursing civil judicial remedies
against a violator. However, the ability of the U.S. and citizens to "overfile" State
administrative penalty actions is presently restricted under §309(g)(6). The recent
decision of North and South Rivers Watershed Association. Inc. v. Town of Scituate.
No. 91-1255 (1st Cir. 1991) broadly interpreted this restriction and barred a citizen
enforcement action. EPA is concerned that this expansive interpretation of the bar to
citizen enforcement actions will be applied equally to bar Federal enforcement actions,
which would hinder EPA's State oversight and enforcement responsibilities.
Field Citations
CWA enforcement responsibilities have increased markedly in recent years, but
enforcement resources have remained limited. As a result, there has developed a
need to target enforcement resources more efficiently and to develop new and
innovative approaches to enforcement. Current statutory authority requires EPA and
the COE [relative to §404] to provide public notice before any administrative penalty
action may be brought, and therefore precludes EPA and COE from implementing
innovative approaches such as those in the 1990 amendments to the CAA, in which
Congress enacted a provision that authorized EPA to implement a "field citation"
program to assess administrative penalties for minor violations of the CAA without
prior notice to the public. This authority would allow EPA and COE to broaden the
scope of enforcement activities, address more violations, reallocate resources to more
significant cases, and establish a greater regulatory presence. Field citations should
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not be given any preclusive effect, but a court should consider them in assessing any
subsequent penalty.
Penalties for Violation of Administrative Orders
EPA, the Coast Guard, and the COE are not authorized to seek administrative penalties
for violation of an administrative order issued under §309 or §311. Enforcement of
an administrative compliance order requires EPA, the Coast Guard, and the COE to
seek civil judicial enforcement from a Federal district court. This procedure is slow,
cumbersome, and resource intensive as compared to the administrative penalty
process. The authority to assess administrative penalties for such violations would
allow EPA, the Coast Guard and the COE to bring and conclude cases for violations
of administrative orders more promptly, obtain higher penalties, and improve
compliance earlier and with fewer resources. This procedure would fully comply with
the requirements of due process because the validity of the compliance order could
be challenged in any penalty, as well as in any appeal proceeding in Federal court.
State Consultation Defenses
Before assessing a Class I or Class II administrative penalty under §309 of the CWA,
EPA must "consult" with the State in which the violation occurred. Under the present
procedure, parties seeking review have objected to the degree of consultation
between EPA and the State, and have sought to discover from EPA additional
information regarding that consultation. The Administration believes that the
adequacy of State/EPA consultation should not be a basis for a party seeking review
to challenge the assessment of a penalty. Moreover, the Administration is concerned
that releasing documents related to this consultation may reveal enforcement sensitive
information.
Requests for Information
Section 308 of the CWA authorizes EPA to require the owner or operator of any
"point source" to install monitoring equipment, sample effluents, maintain records,
etc. The CWA regulates many persons, such as IDs of a POTW who have at times
claimed that they are not subject to the provisions of §308 because they are not
themselves owners and operators of a "point source." This issue has also arisen with
respect to zero discharge facilities. The Administrator should have clear authority to
request information from all persons regulated under the Act, including industrial users
and zero discharge facilities.
Subpoena Authority
While EPA has authority to obtain information from owners and operators of point
sources, the power to compel oral responses to oral questions through the use of a
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subpoena is essential in certain types of investigations. The ability to compel
testimony is an extremely effective means to discover information from an
uncooperative or adversarial source. Under current law, both EPA's ability under
§308 of the CWA to issue subpoenas, and the Coast Guard's ability under §311, is
limited.
RECOMMENDATIONS:
The Administration recommends that the CWA be amended as follows:
Administrative Penalty Cap
> Amend §§309(g)(2) and 311 (b)(6)(B) to increase the administrative penalty
caps from $125,000 for class II penalties to $300,000, and from $25,000 for
class I penalties to $100,000. The cap on class II penalties should also be
subject to waiver upon agreement of EPA, the Army Corps of Engineers, or the
Department of Transportation, as appropriate, and DOJ, similar to the waiver
in Section 113(d) of the Clean Air Act.
Volumetric/ Enhanced Establish Administrative Penalties under §311
> Amend §311(b){6) to provide potent administrative penalty sanctions against
spills and other serious environmental violations by vessels and transportation
related sources in U.S. waters. Provide a volumetric administrative penalty
sanction for class II enforcement authority up to $2000 per barrel of oil or unit
of reportable quantity of hazardous substance discharged, and for class I up to
$1000 per barrel of oil or unit of reportable quantity of hazardous substance
discharged. Increase class II "per day per violation" penalty from $25,000 to
$50,000 and class I "per violation" penalty from $10,000 to $25,000. This
change would put class I penalty authority on par with related statutes.
> There should also be a separate clause in §311(b)(6) providing for the
assessment of a Class I $25,000 penalty per violation per day for violations of
§311 (j) in place of the present $10,000 per violation penalty up to the amount
of the administrative penalty cap. Section 311(j) violations involve spill
prevention violations rather than a discharge of oil or hazardous substance,
making it incongruous to provide an option of assessing penalties per day of
violation or per unit of substance discharged for §311(j) violations.
Overfiling Authority
> Amend §309(g)(6)(A) to delete the provisions by which certain State
administrative enforcement actions may bar a Federal judicial or administrative
enforcement or citizen suit action.
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Field Citations
> Amend §309 of the CWA to waive the public notice requirement for Class I
administrative penalties, of $25,000 or less, giving EPA and the COE the
discretion to develop, as appropriate, an effective field citation program for EPA
and COE personnel. Where a field citation is issued against a Federal facility,
a conference between the Administrator, or the Secretary of the Army, as
appropriate, and the Secretary of the respondent Agency should be provided
prior to final penalty assessment.
Penalties for Failure to Notify
> Amend CWA §311{b)(6) and (b)(7) to provide for administrative and judicial
civil penalties for failure to notify the United States of illegal discharges of oil
or a hazardous substance. Currently, §311(b)(5) provides for criminal penalties
only.
Penalties for Violation of Administrative Orders
> Amend sections 309{g) and 311(b)(6) to provide EPA, the Coast Guard, and
the COE with authority to assess administrative penalties for violations of a
previously issued administrative order.
State Consultation Defenses
> Amend §309(g) to prevent a party seeking review from challenging an
administrative penalty on the ground that State/EPA consultation was
inadequate.
Requests for Information
> Amend §308(b) to authorize EPA to obtain information and access from any
person subject to regulation under the CWA.
Subpoena Authority
> Amend §509 and §311(m) to authorize EPA and the Coast Guard to issue
subpoenas to for the purposes of enforcing the Act.
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CLEAN WATER ACT CITIZEN SUITS
ISSUE:
Recent court decisions have significantly diminished the deterrent threat posed by
citizen enforcement under the CWA. These decisions have narrowly interpreted
citizen standing to sue by limiting the right to bring suit to instances of "ongoing"
violations. At least one State has eliminated a citizen's right to challenge a State-
issued NPDES permit. Also, the purpose for U.S. review of proposed consent
judgments in citizen suits needs clarification.
BACKGROUND:
Requirement of "ongoing" violations
Section 505(a) of the CWA authorizes a citizen to commence a civil suit against a
person "who is alleged to be in violation of" an effluent standard or administrative
order. Interpreting this language, the Supreme Court held that §505 does not permit
citizen suits for wholly past violations in Gwaltney of Smithfield v. Chesapeake Bay
Foundation. 484 U.S. 49 (1987). The Supreme Court decision in Gwaltney has both
weakened and complicated citizen enforcement under the CWA. The decision has
also created complex questions related to penalty assessment. These types of issues
are being litigated repeatedly in the Federal courts.
Congress has previously acted to assure the continued vitality of the citizen
environmental enforcement effort. In 1990, Congress amended the CAA citizen suit
provision to enable citizens to commence an action against any person "who is alleged
to have violated (if there is evidence that the alleged violation has been repeated) or
to be in violation" of the CAA. In amending the CWA, the Administration seeks to
allow citizen suits for any past violation or set of violations, while at the same time
recognizing the equities associated with the imposition of penalties for some wholly
past violations.
Citizen challenges to State-issued NPDES permits
Pursuant to §402(a) of the CWA, EPA is authorized to issue NPDES permits regulating
discharges of pollutants by point source dischargers. Under §402(b), EPA may
authorize a State to operate the permitting program within its borders. When EPA
prepares to issue a permit, that process is initially determined by EPA regulation, 40
C.F.R. Parts 122 and 124. Under CWA §509(b)(1) and these regulations, "any
interested person" is entitled to challenge EPA's permitting decisions through a
request for an administrative evidentiary hearing and if necessary an appeal of EPA's
decision to Federal court.
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Determinations about which parties have standing to challenge the issuance of a State
issued NPDES permit is a matter of State law. The "any interested person" language
of the CWA does not explicitly apply to State issuance of permits. Consequently, at
least one State has very narrowly construed who may challenge permit issuance such
that citizens are effectively excluded from the process.
EPA and DOJ Review of Proposed Consent Judgments
Most citizen enforcement suits brought under the CWA are resolved via a consent
decree that is negotiated by the parties and presented to the court for entry as an
enforceable order of the court. Under §505(c){3), "[n]o [citizen suit] consent
judgment shall be entered in an action in which the United States is not a party prior
to 45 days following receipt of a copy of the proposed consent judgment by the
Attorney General and EPA." This provision provides no guidance to EPA or DOJ as
to what the government is supposed to do with the consent judgments during the 45-
day period. Adding language explaining the role of the government would be helpful
in assuring that the court understands the role of the United States in this process.
RECOMMENDATIONS:
That Administration recommends that the CWA be amended as follows:
Requirement of "ongoing" violations
» Modify the citizen suit provision of the CWA to assure that citizens may
maintain suit for all past violations, occurring after the effective date of the
amendment, that have occurred during the 5 year statute of limitations period.
Further, amend the penalty assessment criteria in CWA §309(d) to require that
a federal District Court consider, when assessing penalties against a person
that is no longer in violation, the following factors (in addition to the existing
factors): (1) the duration of the violator's continuous compliance and non-
compliance, (2) the efforts of the violator to comply both prior to and after the
violations at issue, (3) the diligence of the violator in preventing the violations
at issue, and (4) the likelihood of recurrence of violations.
Citizen challenges to State-issued NPDES permits
>- Modify the CWA to assure that "all interested parties" are provided the right
and opportunity to challenge in State court any State-issued CWA permit.
EPA and DOJ Review of Proposed Consent Judgments
»> Modify §505(c)(3) making explicit that the United States' role in reviewing
proposed citizen suit consent judgments is to determine its consistency with
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the purposes and requirements of the CWA and that the court is to consider the
United States' views in deciding whether to enter a proposed consent
judgment. The statute should provide that a court shall not approve any
proposed consent judgment that is inappropriate, improper, inadequate, or
inconsistent with the purposes and requirements of the Act. Also, instruct the
court to consider the penalty factors contained in Section 309(d) of the Act
in determining whether the agreed-upon penalty is sufficient to further the
deterrence purposes of the Act.
Criteria for Approval of Consent Decrees
»> Amend Section 505 by adding a new subsection providing guidance to courts
concerning the appropriate standard to apply in reviewing a proposed consent
judgment in a citizen suit. The section should clarify that a court shall not
approve any proposed consent judgment that is inappropriate, improper,
inadequate, or inconsistent with the purposes and requirement of the Act.
Language should also be included instructing the court to consider the penalty
factors contained in Section 309(d) of the Act as well as any views expressed
by the United States in deciding whether to approve a consent decree.
Other Suggestions
> Amend CWA §505(f) to assure that citizens are authorized, as the federal
government is authorized under §307(d), to sue for: (a) violations of both
pretreatment requirements and pretreatment standards (see infra discussion
concerning CWA §307(d) and (b) violations of §404 permits.
+ Currently, State administrative penalty actions under State laws comparable to
Section 309(g), when diligently prosecuted, preclude citizen suits seeking
penalties for the same violations. We are seeking to remove that bar so that
citizens (and EPA) could overfile State administrative penalty actions. We
propose a more limited change to the analogous provision in Section 505 with
respect to State court enforcement actions. We suggest amending Section
505(b)(1)(B) to add the words "that has a permit program approved under
Section 1342(b) of this title" after "if the administrator or State." This
amendment would ensure that citizen suits under the CWA would be barred
only by civil enforcement actions by those States with EPA-approved permit
programs. This amendment would also ensure that a citizen suit would not be
precluded by a State court action that lacks the procedural protection, such as
allowing public participation in the proceeding, that is required of State
enforcement under EPA-approved programs. See 40 C.F.R. 123.27(d). Of
course, under the language of Section 505(b), the State would also have to be
"diligently prosecuting" its enforcement action to bar a citizen suit.
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CLEAN WATER ACT IMMINENT AND SUBSTANTIAL
ENDANGERMENT PROVISION
ISSUE:
The CWA, as interpreted by the courts, does not provide adequate authority to EPA
or the public to address water pollution that poses a threat to human health or the
environment. The imminent and substantial endangerment provision of the statute is
narrower in its application than the more modern provisions in other environmental
statutes.
BACKGROUND:
Imminent and Substantial Endanaerment
Section 504 of the CWA authorizes EPA to respond to emergencies where there is an
imminent and substantial danger to the public health or economic welfare. Emergency
provisions are also found in the Safe Drinking Water Act (SDWA), §1431, CAA,
§303, RCRA, §7003, CERCLA §106, and §311(e) of the CWA (regarding oil and
hazardous substances). Each of the provisions is different. In several respects, §504
provides EPA with less authority than that provided by the emergency provisions of
any of these other statutes.
For example, under §504 of the CWA, EPA is not authorized to issue administrative
orders, but must seek enforcement of the provision in Federal court. In contrast,
§1431 of the SDWA and §30>3 of the CAA authorize EPA to issue "such orders as
may be necessary to protect the health of persons". Section 7003 of RCRA
authorizes EPA to issue "such orders as may be necessary to protect public health and
the environment." Procedures for judicial enforcement of such orders are also
established in §1431 of the SDWA, §303 of the CAA, and §7003 of RCRA. The
enforcement options available under the SDWA, RCRA, and §311 go beyond
administrative orders and suits. Section 1431 of the SDWA authorizes EPA to "take
such actions as he may deem necessary" to protect the health of persons endangered
by public water system contaminants. §7003 of RCRA also authorizes EPA "to take
other action."
Section 504 of the CWA may only be invoked when there is endangerment to human
health or welfare. However, endangerment to welfare is restricted to endangerment
to "livelihood," such as "the inability to market shellfish." Section 504 does not
identify environmental protection as a justification for invoking EPA's authority. In
contrast, the analogous section in the CERCLA, §106, authorizes a response when
there is endangerment to "public health or welfare or the environment". Similarly,
§7003 of RCRA authorizes EPA to take action when there is endangerment to "health
or the environment". CWA §311(e) can be used when there is imminent and
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substantial threat to the public health or welfare of the United States, including, but
not limited to, fish, shellfish, wildlife, public and private property, shorelines, beaches,
habitat, and all living and nonliving natural resources under the jurisdiction of the
United States.
Section 504 of the CWA provides that EPA's emergency powers are triggered only
when a pollutant source "is presenting" an imminent and substantial endangerment
In contrast, §1431 oftheSDWA, §7003 of RCRA and §106 of CERCLA and §311(e)
of the CWA provide a lesser threshold that allows EPA to respond to threatened
emergencies. It is not clear, as in §7003 of RCRA, that EPA may take actions where
a past discharge may present an imminent and substantial endangerment.
Clarification of this point is important because in many instances it is the
accumulation of pollutants in sediments from past discharges that pose the
endangerment.
Amending §504 to incorporate elements of the other statutes' "emergency powers"
provisions would provide several benefits. First, it would ensure the same level of
protection of public health and the environment under the CWA as provided under
other environmental statutes in comparable emergency situations. Second, it would
broaden EPA's enforcement options. In addition, conforming §504 to the other
statutes' provisions would reduce the administrative and judicial burden of interpreting
and applying widely differing statutory provisions in a crisis.
Assuring Public Ability to Respond to Emergencies
Under the emergency provision of the CWA, only EPA has authority to initiate an
action in response to a threat or endangerment to the public health or welfare. No
provision is made in §505 of the Act to grant citizens the right to bring a suit under
these circumstances. This authority is provided to citizens bringing suit under the
citizen suit provision of RCRA §7002(a)(1)(B).
Because at present the public has no direct means to seek redress for water pollution
problems other than those caused by point source dischargers or dischargers to
POTWs, it is important that the public have authority to enforce CWA §504.
RECOMMENDATIONS:
» CWA §504 should be amended to:
o include elements of other Federal environmental statutes' emergency
powers provisions, including a provision empowering EPA to issue
enforceable emergency orders;
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o authorize EPA to initiate an emergency action in response to a threat
posed to the environment;
o clarify the law to allow EPA to invoke §504 when the discharge "may
present" an imminent and substantial endangerment to public health or
the environment;
o provide that the emergency powers provision applies to any person, not
just those specified in § §504 and 311 (e);
o provide for administrative and/or civil judicial penalties for violations of
an emergency order, as well as appropriate injunctive relief.
o provide that knowing violations of §504 emergency orders be subject to
criminal sanctions,,
CWA §505 should be amended to allow citizens to initiate actions to abate
imminent threats to the public health, welfare, and the environment. Citizens
acting to abate these threats should give notice, but should not be subject to
the CWA §505{b)(1)(A) sixty day waiting period.
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CLEAN WATER ACT SECTION 311: OIL AND HAZARDOUS
SUBSTANCES
ISSUE:
Close coordination between EPA and the Coast Guard on development of new civil
and administrative penalty programs under Section 311 has resulted in identification
of several amendments that are essential to effective implementation of the new
enforcement regime.
BACKGROUND:
CWA §311(j)(1)(C) authorizes EPA to require facilities to develop spill prevention,
control and countermeasure (SPCC) plans. There are several deficiencies, however,
in §311 's provisions for enforcing these requirements. First, §311 does not expressly
authorize EPA to seek the issuance of injunctions from the courts to compel
compliance with the 311 (j) requirements. Second, EPA and the Coast Guard are not
specifically authorized to issue administrative compliance orders mandating §311(j)
compliance, unless they demonstrate that the facility's failure to do so presents an
imminent and substantial threat. Third, there are no criminal sanctions for negligent
and knowing violations of §311(j) requirements, except for situations where false
material statements, representations, or certifications are made. See CWA
§309(c}(4).
Although information gathering authority is available to EPA under both sections 308
and 311 (m) of the CWA for spill violations, the §311 (m) authority is not enforceable
by sanctions. This is a particular disadvantage to the Coast Guard, which cannot
employ §308.
RECOMMENDATIONS:
The Administration proposes that the CWA be amended as follows:
Improve §311(j) Enforcement Remedies
» Additional enforcement authority for violations of CWA §311(j) should be
added to CWA §§309(c) and 31 Kb). Specifically, these sections should (1)
authorize EPA and the Coast Guard to issue administrative compliance orders
mandating §311(j) compliance, (2) authorize courts to issue injunctions to
compel compliance with spill prevention requirements, and (3) authorize
criminal sanctions for negligent and knowing violations of § 311 (j) requirements.
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Make §311 Information Requests Enforceable
> Section 311 (b)(6) should be amended to provide authority to impose both Class
I and Class II administrative civil penalties for a failure to comply with an
information request under §311 (m)(2). §311 (b)(7) should be revised similarly
to include authority to seek $25,000 per day penalties for violations of such an
information request.
ADDITIONAL RECOMMENDATIONS:
Clarify Jurisdiction Under Section 311
* Clarify that the government has enforcement authority against discharges
occurring in the U.S. exclusive economic zone with the proviso that this
jurisdiction will be exercised consistent with international law. Several steps
may be necessary to accomplish this change. First, a definition of "exclusive
economic zone" consistent with other statutes should be added. Second,
"exclusive economic zone" should be substituted for the term "contiguous
zone" in section 311(b)(3)(ii) and (m)(1)(a), while specifically preserving Coast
Guard authority under 14 U.S.C. §89(a). Third, a savings clause similar to that
in the Act to Prevent Pollution from Ships also should be added in order to
avoid any international law conflicts.
> Add a definition of the phrase "adjoining shoreline" to §311 (a) of the CWA to
clarify that the term includes all land areas upon which oil or hazardous
substances have been discharged if the spill is either into or threatens navigable
waters. The meaning of adjoining shoreline has become much more significant
with the 1990 OPA amendments that created a volumetric penalty scheme,
since the most oil spilled is near, but not into, waters of the United States.
+ Amend CWA §311 (a)(6)(C) to include abandoned vessels and abandoned on-
shore facilities in the definition of entities subject to §311 regulation.
Currently, only abandoned off-shore facilities are included in the definition,
creating a loophole for former owners and operators of abandoned on-shore
facilities.
> Provide for venue in any district in which a corporate defendant does business.
Clarify that venue over a claim related to failure to report a spill exists where
the spill occurred.
* The definition of "United States" in §311 (a)(5) should be amended to conform
to the definition of §1001(36) of OPA, so that it includes within it the term
"United States" as well as the various States and territories.
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CONTRACTOR LISTING
ISSUE:
How can the contractor listing program under CWA §508 be improved through
changes in the statute?
BACKGROUND:
CWA §508 provides that any facility owned, leased or supervised by a person
convicted under the CWA is ineligible to receive Federal funding until the condition
which gave rise to the conviction is corrected.
The provision correctly recognizes that economic factors play a major role in both
motivating and reforming human conduct. The purpose of this provision is to prevent
the government from contracting with environmental criminals. This provision was
intended to remove any and all economic incentive to violate the statute. However,
under the current provision, companies are able to avoid listing and retain economic
benefits by transferring an about-to-be convicted supervisor who committed criminal
acts. In addition, some companies violate the CWA at marginally profitable or
unprofitable sites and then abandon those sites and move business operations to other
locations after obtaining the competitive benefits of noncompliance. Also, the
regulated community is not required to assume affirmative responsibility related to
certifying eligibility for Federal contracting.
Clarification of the CWA's provisions with respect to Federal procurement and
contractor listing would result in greater efficiency for contractor listing and less
likelihood of Federal money being spent to support environmental offenders. CWA
§508 should be retained in its present form, authorizing the President to exempt any
contract, loan, or grant where he determines such exemption is necessary in the
paramount interest of the United States.
RECOMMENDATIONS:
> CWA §508 should be amended to provide mandatory listing for criminal
violations of the Rivers and Harbors Act of 1899, 33 U.S.C. § §403 and 407,
as well as the CWA.
> In addition, the statute should clarify the broad discretionary authorities of EPA.
The statute should authorize EPA to: define the scope of the program; provide
for listing of a convicted person acting as a supervisor; provide that actions of
such supervisors are a proper basis for mandatory listing of the facility that
employs that person; and, allow EPA to consider the supervisory status of the
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person at the time of violation, not conviction, as an appropriate determining
factor for listing consequences of a criminal conviction.
The statute should authorize EPA to use its discretion to define the extent of
the contracting prohibition with respect to activities, ownership, or operations
by the convicted person. Thus, EPA could define "facility" within the context
of each conviction and bring to justice those companies that fail to comply and
then move their business. Such discretionary authority for EPA would be
consistent with CAA §306(a) that provides EPA with authority to extend the
prohibition against contracting and Federal procurement use of a facility to
other facilities owned or operated by a convicted person.
The Administrator should also be permitted to remove a facility from its list of
violating facilities whenever the Agency is satisfied that the conditions which
gave rise to the civil or criminal violations have been corrected. A mandatory
listing of a particular period of time could constitute a serious disincentive to
voluntary reporting and prompt correction of CWA violations.
The statute should require companies that have been convicted, or whose
owner, operator, or supervisor has been convicted of violating §309(c) of the
CWA or the Rivers and Harbors Act, 33 U.S.C. § §403 and 407, to disclose the
fact of that conviction when making certifications of eligibility for Federal
grants, loans and contracts. Current certifications ask if a facility to be used
for the grant or contract purpose is "on the EPA... List," which is a reference
to the procedure which has been established by EPA under subsection (b) and
is a legal conclusion. Companies may be unaware or may assert that they were
unaware of their status with respect to the published list, despite the automatic
statutory ineligibility contained in CWA §508(a). Every company, however,
should at least know if it, or an owner, operator or supervisor, has been
convicted of criminal violations of the CWA or other statutes, since the fact of
Federal criminal convictions are usually noteworthy events in any existence,
corporate or personal.
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SUPPLEMENTAL ENVIRONMENTAL PROJECTS
ISSUE:
Should there be an explicit statutory authority for courts to approve a consent
judgment or settlement requiring that a portion of a civil or administrative penalty
agreed upon by the parties be used by the violator to pay for an environmentally
beneficial project?
BACKGROUND:
An innovative way to enhance environmental protection and fund beneficial projects
would be to authorize courts, in appropriate circumstances, to approve a consent
judgment or settlement under which civil violators would agree to beneficial
environmental projects in the area where the violations occurred. Courts however
would not have discretion in civil cases to order such projects absent agreement of
the parties. Current EPA policy permits the Agency, in the course of settlement
negotiations with a civil defendant or respondent, to reduce the amount of cash in the
total penalty assessed where the violator agrees to complete a "supplemental
environmental project" (SEP) to ensure that, for example, environmental restoration,
pollution prevention, or public education and awareness programs in the violator's
locality are funded and supported. The SEP must have a nexus, broadly defined, to
the violations committed by the defendant. In addition, EPA SEP policy requires that
a violator pay a substantial monetary penalty. In no case would a reduction of the
cash penalty of more than one dollar penalty for one dollar SEP be acceptable.
Courts, however, would not have discretion in civil cases to order such projects
absent agreement of the parties. This is not an appropriate role for the courts. Courts
are competent only to adjudicate disputes. Unlike the EPA, courts have no particular
expertise in environmental restoration or pollution prevention. They are not, and
should not become, funding organs, dispensing largess among competing social,
moral, and political interestsa quintessentially legislative function. Moreover, it
would unduly complicate enforcement actions if the parties had to brief the court with
respect to the possible uses of the penalties for environmentally beneficial projects.
Furthermore, in some cases, it could appear inappropriate for a court to order one
party to make a payment to private individuals not involved in the lawsuit even if for
an environmentally beneficial project. Competition among claimants as to judicial
largess could expose courts to conflict of interest charges and cast doubt on their
neutrality.
When parties agree to an environmentally beneficial project in the context of a
consent judgment in a civil suit, these concerns are substantially reduced, and are
outweighed by the benefits to be gained from such a project.
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SEPs must improve the injured environment or reduce the total risk burden posed to
public health or the environment by the violations at issue, and under no
circumstances could agreement to a SEP provide the violator with additional time to
correct the violation and return to compliance. The project should not be an activity
which is otherwise required by law. Providing courts with authority to approve SEPs
in lieu of a portion of the total cash penalty assessed in the above contexts could lead
to significant environmental improvement in the areas where violations occurred,
without the expenditure of scarce Federal resources.
In a criminal case it is generally inappropriate to allow a defendant to enjoy a reduced
criminal fine by agreeing to pay a portion of that fine for an environmental project.
The payment of criminal fines carries the stigma of criminal conviction, and this
stigma should not be lessened by the public perception of environmental munificence
that may attach to the funding of an environmental project.
RECOMMENDATION:
* The CWA should be amended to clarify that, notwithstanding contrary
provisions of law, in addition to the payment of a cash penalty that recovers
at minimum the economic benefit of the violation, a Federal court may
authorize-as part of a consent decree or settlement in an EPA civil judicial
action or citizen suit-that the violator complete a SEP to improve the
environment or public health. (Recovery of economic benefit in cash as a
prerequisite to allowance of a SEP would not apply in cases against POTW or
Federal facilities.)
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ENVIRONMENTAL AUDITS
ISSUE:
Environmental audits could be an effective process by which regulated facilities would
identify systemic obstacles to compliance as well as opportunities for pollution
prevention. Mandatory environmental auditing is somewhat controversial due to the
cost implications of facility-wide audits performed in accordance with Federal
guidelines and regulations. However, clarifying EPA's authority to require an audit
upon a finding that a person is in violation of the Act could serve as a strong deterrent
against future violations by the facility and could help ensure that appropriate
measures were taken to address the violations at issue. Should EPA's authority to
require environmental audits be clarified under the CWA?
BACKGROUND:
In 1986, EPA issued an Environmental Auditing Policy Statement in which the Agency
acknowledged the value of environmental auditing "... by regulated entities to help
achieve and maintain compliance with environmental laws and regulations, as well as
to help identify and correct unregulated environmental hazards." This document also
suggested the use of environmental audits in the enforcement context. Also in 1986,
EPA issued guidance on the inclusion of environmental auditing provisions in
enforcement settlements. EPA has continued to consider the appropriate use of
environmental auditing for enforcement purposes. The possible uses of these audits
are many, but in the enforcement context the Agency has identified two uses that
would prove extremely valuable. First, environmental audits may be used to
determine the causes of CWA non-compliance; and, second, the parties may negotiate
environmental audits of the defendants' facility as a term of settlement. Audits
conducted in the context of such settlement determine the causes of the past non-
compliance and assure that the means are identified and implemented.
Compliance audits could be required whenever the level of non-compliance at a facility
is so severe that it indicates that the regulatee is unable or unwilling to take the steps
to comply with the Act. These audits would assist the United States in any related
enforcement action by providing information about the causes of and the solutions to
the violations, information that the United States needs in order to properly resolve
an enforcement action.
EPA has also examined the potential for auditing to be used a tool for identifying
opportunities for pollution prevention. In this context the audit would be used to
identify opportunities for pollution prevention within production and treatment
processes and operation and maintenance practices at the facility. Pollution
prevention opportunities identified in the audit could also be given due consideration
by the regulator during any re-issuance of permits. All information submitted pursuant
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to any audit could be available for public review unless EPA determined it to be
confidential business information or otherwise inappropriate for public distribution.
RECOMMENDATION:
> CWA §§309(a) and 311 should be amended to expressly clarify that, upon a
finding that a person is in violation of the Act, EPA or the Coast Guard may
order a person to conduct and provide EPA or the Coast Guard with an
environmental audit. A court will continue to have authority to order an audit
in criminal and judicial cases where such relief is appropriate.
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MISCELLANEOUS AND TECHNICAL ISSUES
ISSUE:
There are numerous miscellaneous issues and some technical drafting problems with
the CWA as currently enacted. A discussion of these issues follows.
BACKGROUND:
It is presently unclear whether a discharge to the ground or to ground water that
rapidly moves into surface water through a "direct hydrological connection" between
the point of discharge and the surface water is subject to NPDES regulation. On
occasion, EPA has asserted NPDES jurisdiction over such discharges. Case law,
however, is divided on whether the CWA permits such jurisdiction. Compare, e.g..
M.E.S.S. v. Weinberger. 707 F. Supp. at 1196 with Kellev v. United States. 618 F.
Supp. 1103 (W.D. Mich 1985). The ability to regulate discharges from identifiable
point sources, such as infiltration basins located close to waterbodies, that will rapidly
end up in surface waters through a direct hydrological connection is important if EPA
is to protect water quality.
The 9th Circuit Court of Appeals held in Northwest Environmental Advocates v. City
of Portland. (Civ. No. 92-35044, December 10, 1993), that a citizen could not bring
suit under §505 for violation of a narrative NPDES permit condition providing that,
notwithstanding any other limits in the permit, the discharge could not cause a
violation of State water quality standards in affected receiving waters. The court
reasoned that citizens can only bring suit under §505 for violations of "effluent
limitations" in NPDES permits and held that a narrative receiving water limit is not an
"effluent limitation and is therefore unenforceable." The court held that only end-of-
pipe limits are "effluent limitations."
EPA is very concerned about the holding in Northwest Advocates being extended to
Federal enforcement under §309, which is similarly worded to §505. In some
circumstances EPA depends on non-numeric or narrative receiving water limitations
to ensure protection of water quality when drafting numeric end-of-pipe limits is
difficult or impossible. The Administration acknowledges the need for specificity in
narrative limitations adequate to inform the permittee of the level of performance that
constitutes compliance.
States' programs are not now statutorily required to develop or implement a policy of
requiring State-imposed penalties to recoup the economic benefit of noncompliance.
States should abide by the same penalty standard applicable to the United States in
its CWA enforcement actions.
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MAJOR SUBSTANTIVE RECOMMENDATIONS:
The CWA should be amended to:
* Confirm and clarify that a point source discharge to ground or to ground water
that has a direct hydrological connection with surface waters is subject to
regulation as a NPDES point source discharge if there is 1) a reasonably
foreseeable direct hydrologic connection to surface waters in the proximity of
the release, 2) a greater than de minimus quantity of the pollutant must
reasonably be able to reach the surface water, and 3) no other Federal statute
directly addresses the activity causing the release.
+ Confirm and clarify that narrative and numeric end-of-pipe limits and receiving
water limitations, both narrative and numeric, incorporated into NPDES permits
are enforceable.
> Authorize EPA to withhold water pollution control assistance under §106 from
those States that lack adequate authority to abate violations or fail to
implement that authority, including that each State develop and implement a
policy that would seek to recoup economic benefit (if any) in any penalty
imposed by a State court or State administrative agency from all violators other
than publicly-owned treatment works or federally-owned treatment works.
MISCELLANEOUS AND TECHNICAL CHANGES TO THE CWA:
> CWA §505 should be amended to specify that citizens alleging unpermitted
discharge and similar violations may amend their complaints to allege additional
violations without having to issue a new 60-day citizen suit notice, as long as
the citizens did not know of the additional violations at the time the complaint
was filed, and the new violations are closely related to the violations stated in
the notice.
> Clarify that under CWA §309(g)(8) persons seeking to bring a judicial challenge
to a class I administrative penalty order must file a complaint as well as a
notice of appeal. Further amend §309(g)(8) to clarify that the court, on an
appeal of an assessment of an administrative penalty, be restricted to
remanding the penalty to EPA or Secretary on a finding of abuse of discretion,
and restricting the court from imposing additional penalties on its own initiative.
> Amend CWA §502(6) to indicate that specific itemization of pollutants is
illustrative only and not meant to be an exhaustive, exclusive listing of what
constitute pollutants. Also, "fill material" and "dirt" should be added to the
illustrative list. "Manufactured items or products" should be added to the list
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to illustrate that discarded consumer products, such as refrigerators, are
pollutants.
Amend CWA §509 to clarify the fora for judicial review of EPA and COE
actions, and to bring the section into line with other environmental statutes
administered by EPA that provide for review of most final Agency actions in the
United States courts of Appeals. Section 509 should be amended to add the
following classes of actions to the list of actions that are reviewable in the
United States Courts of Appeals: all regulations promulgated pursuant to the
Act, approvals of State water quality standards, approval or establishment of
total maximum daily loads under Section 303(d), and final permit
determinations under Section 404 [including EPA actions under section 404(c)].
Because Section 509 will encompass review of COE actions under Section 404,
the provision should be amended to indicate that actions taken by the Secretary
of the Army are subject to the provision's review procedures.
Additionally, Section 509 should be amended to provide that all actions
reviewable in the United States Courts of Appeals that are of nationwide scope
and effect should be reviewable only in the Court of Appeals for the District of
Columbia Circuit, and actions of less than nationwide scope and effect are to
be reviewed in the Court of Appeals in the federal district in which any of the
waters affected by the Agency action are found. In order to avoid litigation
over whether an Agency action is of national scope and effect, Section
509(b)(1) should contain a provision similar to that in Section 307(b)(1) of the
Clean Air Act stating that if the Agency action is based on a determination of
nationwide scope or effect, and if in taking the action the Administrator finds
and publishes that the action is based on such a determination, review of the
action must be in the District of Columbia Circuit.
Amend §509, parallel to §307(d){7)(B) of the Clean Air Act, to provide that
only an objection to a rulemaking action of the Administrator that was raised
with reasonable specificity during the comment period may be raised for judicial
review; that if it was impractical to raise such an objection during the public
comment period or if the grounds for such an objection arose after the close of
the public comment period and the objection is of central relevance to the
outcome of the rulemaking action, the Administrator shall convene a proceeding
for reconsideration of the rulemaking action and provide the same procedural
rights as would have been afforded had the information been available at the
time the action was proposed; and that if the Administrator refuses to convene
such a proceeding, the person raising the objection may seek review of her
refusal in the U.S. Court of Appeals. Reconsideration by the Administrator
would not postpone effectiveness of the rulemaking action, but the
effectiveness of the action amy be stayed by the Administrator or a court for
a period not to exceed three months.
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Amend §509, parallel to §307(d)(8) of the Clean Air Act, to provide that the
sole forum for challenging procedural determinations made by the Administrator
shall be in the appropriate U.S. Court of Appeals at the time of substantive
review of the action; that no interlocutory appeals shall be permitted with
respect to such procedural determinations; and, that the Court may invalidate
an action on the ground of alleged procedural errors only if the errors were so
serious and related to matters of such central relevance to the action that there
is a substantial likelihood that the action would have been significantly changed
if such errors had not been made.
Amend §309{g)(2)(A) and (B) to make uniform the event and time period by
which penalties are assessed by requiring penalties to be assessed "per day for
each violation."
Amend §309(c), (d), and (g) to delete provisions related to "single operational
upset" because they are confusing and needlessly complicate enforcement
efforts.
Provide in CWA §313 that the United States, its agencies and officers have the
right to remove actions brought in State court to Federal court.
Provide that Federal agencies subject to administrative enforcement actions
may be represented by counsel admitted to any bar of a Federal court or of the
highest court of any State or Territory.
Amend CWA §402 to require that a violator, upon a finding of liability, provide
notice to the public that it has been found in violation of the CWA. Such notice
might be provided through publication in a local newspaper.
Amend CWA §505(a) (2) to permit citizens to bring action against the Secretary
of the Army for failures to perform nondiscretionary duties.
Amend section 312 to prohibit expressly the discharge of sewage from any
vessel subject to the standards and regulations of that section unless the vessel
is equipped with an operable marine sanitation device, and such device is used
in compliance with the Act. EPA and the Coast Guard should be empowered
to enact regulations for assuring compliance with this requirement, such as
regular certification of the installation and proper use of the device. EPA and
the Coast Guard should also be jointly empowered to enforce this requirement.
Violations of this prohibition should be subject to administrative, civil judicial
and criminal penalties under section 309, as well as injunctive relief.
Section 309 should be amended to clarify that the Shipowner's Limitation of
Liability Act, 46 U.S. C. 103 et seq., does not limit liability for civil penalties
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and injunctive relief. Section 311 should be amended similarly to clarify that
the Shipowner's Limitation of Liability Act does not limit liability for the costs
of removal of oil or a hazardous substance or for restoration or replacement of
natural resources. The United States has been forced to litigate whether
defendants' liability under the Act is limited by the Shipowner's Limitation of
Liability Act, and a clarifying amendment of Section 309 would avoid onerous
litigation over this issue.
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CHAPTER 6--PERMITTING
PERMITTING IN BRIEF
The National Pollutant Discharge Elimination System (NPDES) Program is one of the
centerpieces of the CWA's water pollution programs. Under NPDES, "point source"
discharges of pollutants into waters of the United States are prohibited unless
authorized through a permit. NPDES permits contain technology-based and water
quality-based pollutant limits as well as monitoring and reporting provisions, and are
the fundamental mechanism for enforcing effluent limitations and water quality
standards of the Act. The NPDES program through permits currently regulates
hundreds of thousands of dischargers. The NPDES program is enhanced by the
pretreatment program, which regulates industries that discharge pollutants into
municipal sewerage systems, and the sewage sludge program, which regulates the
use or disposal of sewage sludge.
Although one of the oldest programs implementing the CWA, the NPDES program
continues to evolve to reflect experience with implementation and advances in the
policy and science of water pollution control. Accordingly, EPA's permit program
recommendations in the context of CWA reauthorization balance the need to maintain
and improve traditional programs (e.g., pretreatment), meet the demands of new
program development (e.g., storm water, CSO), and accommodate new paradigms for
control of toxic pollutants (pollution prevention, innovative technology).
Pollution prevention and technology innovation. In the last decade, pollution
prevention has received increased attention. Although the CWA has not yet explicitly
endorsed pollution prevention or innovative technology approaches (with the
exception of an innovative technology waiver provision which was not widely used),
it does create sufficient flexibility to explore such approaches. The Administration
recommends amendments to the CWA that include pollution prevention planning (and
best management practices! where appropriate) as enforceable NPDES and
pretreatment program components, and supports incentives to promote innovative
technology.
Storm Water. Under section 402(p) of the 1987 Amendments, EPA has established
a two-phased program to address the discharge of contaminated storm water. This
has increased dramatically the size and scope of NPDES coverage.
Under Phase I, EPA has established storm water permitting requirements for industrial
activities and for municipal separate storm sewer systems serving over 100,000
people. Phase II applies to facilities and systems not covered under Phase I; Phase
II sources are required to obtain a permit by October 1, 1994. Phase II may cover ten
times as many facilities as Phase I. Based on EPA's experience with Phase I, and on
the likely broader scope of Phase II, the Administration recommends amendments to
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the CWA that would provide a more gradual shift to water quality-based municipal
storm-water permitting, exempt facilities with no storm water exposure from storm
water program requirements, extend Phase II deadlines, and control remaining non-
municipal sources through municipal storm water management programs.
Combined sewer overflows (CSOs). Nationwide, about 1,100 communities have
combined sewer systems that discharge raw sewage, industrial wastes, and storm
water from nearly 15,000 CSOs. EPA's 1993 draft CSO Policy, developed through
negotiations with State, environmental, and municipal representatives, contains
significant new permitting and enforcement provisions that will foster development
of NPDES permit requirements, elimination of dry-weather overflows, and timely
compliance.
Pretreatment. Under the authority of EPA or State-approved local pretreatment
programs, some 1,500 POTWs now regulate over 30,000 significant industrial users
and hundreds of thousands of other non-domestic dischargers through permits or
other individual control mechanisms. Effluent and sewage sludge quality have
improved markedly as a result.
The Administration is recommending minor revisions to CWA pretreatment
requirements to improve control over non-domestic discharges to sanitary sewers.
Removal credits should only be allowed for pollutants that actually biodegrade in
POTW treatment systems rather than those that transfer to sludge or the atmosphere.
Additionally, the Administration supports minor modifications to the Domestic Sewage
Exclusion (DSE) and requests statutory authority for EPA to directly regulate industrial
users.
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POLLUTION PREVENTION IN NPDES PROGRAM
ISSUE:
How should CWA be amended to incorporate pollution prevention requirements that
would facilitate reduction in pollutant loadings from industrial facilities?
BACKGROUND:
Pollution prevention is a high priority of EPA. However, it has been difficult to
uniformly promote pollution prevention in existing programs where authority to require
pollution prevention is not expressly authorized.
There are, however, examples of pollution prevention activities already underway in
the NPDES program. Twenty States have passed facility planning legislation. These
laws typically require certain types of facilities to assess their production processes,
identify opportunities for source reduction or toxic use reduction, set quantifiable
goals, and establish a plan for meeting these goals. In addition, many POTWS are
beginning to require source identification and pollution prevention assessment studies.
BMPsto promote pollution prevention are also used in NPDES permits, including EPA's
storm water general permits for industrial activities. Further, the recently-proposed
Water Quality Guidance for the Great Lakes System includes a program requirement
that requires, as a condition in permits, the permittee to develop and conduct a
pollutant minimization program when a water quality-based effluent limitation
(WQBEL) for a pollutant is determined to be less than the level of detection.
The Administration believes that the CWA should be amended to further incorporate
pollution prevention in the NPDES program. Authorizing EPA to require facilities to
conduct pollution prevention opportunity assessments, often called pollution
prevention plans, would allow EPA to require certain facilities to identify and evaluate
cost-effective opportunities to reduce pollution at the source of its generation on a
whole-facility, multi-media basis. This authority would be particularly useful when the
Agency issues water quality-based effluent limitations that are below the level of
detection for the specific parameter, when water quality standards are not being met
in the receiving water, and when a facility's choice of treatment results in media-
transfer of pollution instead of treatment. This authority would provide permit writers
access to information on potential source reduction techniques to determine
appropriate permit requirements. Pollution prevention assessments could be used also
to help them identify a cost-effective pollution reduction strategy to meet technology-
based or water quality-based limitations.
In addition, the CWA could be amended to promote pollution prevention by clarifying
EPA's authority to require BMPs for point sources in NPDES permits. Although EPA
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interprets §301 to authorize the imposition of point source BMPs whenever necessary
to achieve statutory controls, others have argued that §304(e) limits such authority.
RECOMMENDATIONS:
The Administration recommends that the CWA be amended as follows:
> Provide permitting authorities the discretionary authority to require pollution
planning as a NPDES permit and industrial user (IU) condition. Facilities may
be required by permitting authorities to submit a multi-media pollution preven-
tion evaluation as a condition of NPDES permits or permit applications, or
pretreatment standards. In exercising this discretionary authority, permitting
authorities would consider the need for the information, the burden of
developing and implementing a plan, and the environmental and public health
risk of the pollutants being addressed. For example, plans could evaluate the
effluent mitigation performance of a facility when the effluent limitations are
below the level of detection. Existing facility pollution prevention programs and
relevant evaluations will be considered in fulfilling such requirements. Before
requiring implementation of any pollution prevention activity, the authority
should evaluate the relative cost-effectiveness of alternative pollution control
requirements.
» Clarify NPDES permit authority to impose BMPs for point sources through
NPDES permits to ensure compliance with the goals of the CWA. Such
authority should not be limited by the provisions in §304(e). In addition, such
authority should also specifically address discharges from process lines and
operating practices, such as facility maintenance and cleaning. Such authority
is not intended to include BMPs for nonpoint sources.
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INNOVATIVE TECHNOLOGY INCENTIVES
ISSUE:
Should the CWA be amended to provide specific incentives to private industrial
development and research of new, innovative technologies?
BACKGROUND:
A. Industrial Technology Development
The structure of the NPDES program has been cited as constricting experimentation
on new, innovative technologies. Permit effluent limitations are generally based on
the known performance of tried technologies. Though not restricted by the NPDES
program, industry has argued that process and treatment changes to save money,
time, or energy, or to reduce pollutant discharge are not encouraged under the
existing program.
Implementation of pollution prevention or energy-saving measures at specific facilities
often involves extensive technological adaptation or use of techniques or materials
previously untried in similar applications. Facilities undertaking process changes or
innovative treatment technologies may be uncertain of the environmental outcomes
those modifications will produce. Despite current Agency enforcement policy which
does already allow for reduced penalties for expenditures for a failed technology that
could reasonably have been expected to work, fear of CWA noncompliance during
and after experimentation may hinder efforts to innovate if projected savings are not
sufficient.
Environmental statutes have provided for innovative technology incentives; however,
these have not fostered widespread development of innovative approaches by the
regulated community. Section 3005(g) of RCRA provides for research, development
and demonstration (RD&D) permits for hazardous waste treatment technologies. This
program has not been widely used, in part, because RD&D permits had low priority
in EPA regional offices and, in part, because of continuing liability. Section 301 (k) of
CWA allows for a permit compliance schedule; this waiver provision has been under-
used by industry in part because the provision expired shortly after the statutory date
for compliance with pretreatment standards and in part because the waiver provision
was too unstructured to provide comfort for the industry, EPA, or environmental
groups. CWA §307(e) also provides a similar extension for ILJs which is still
applicable for new or revised categorical standards.
Many facilities are capable of testing new technologies without major impacts on
effluent quality by using pilot-scale facilities, bringing on-line temporary treatment
units to "pre-treat" effluents from experimental production lines, or by adjusting
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existing treatment facility operating parameters such as detention time, aeration, or
pH. Effluent quality may be impacted for brief periods while adjustments are made.
B. Marine Pollution Prevention & Control Technology Development
Because incidental discharges from vessels engaged in transportation, by regulation,
are not required to be permitted under NPDES, relatively little regulatory attention has
been paid to non-sewage discharges from vessels. With few exceptions, there are no
national technology-based standards for non-sewage discharges from vessels;
therefore, uncertainty exists regarding effluent requirements for these discharges,
impeding long-term research and development of vessel pollution control technology
and the free movement of Department of Defense (DOD) vessels. DOD is prepared
to partner with EPA and affected States to develop uniform national standards for
incidental discharges from DOD ships. Environmental (e.g., protection of sensitive
areas), technological, operational, and cost criteria, as well as international standards,
would be considered in developing the standards. To ensure the stability necessary
for long-term research, development, procurement and installation, the uniform
national standards would govern vessel discharges, but the of States to establish no-
discharge zones, under appropriate circumstances, would be preserved. The
standards would result in the development of advanced, dual-use technology which
could then be made available to other vessels or applications. The Secretary of
Transportation may designate Department of Transportation vessels equivalent to
DOD vessels to be subject to such uniform national standards.
RECOMMENDATIONS:
A. Industrial Technology Development
The Agency should be authorized to grant short-term schedules to allow temporary
waivers from technology-based limits (not to exceed water quality-based limits) to
encourage experimentation with process changes to reduce source contributions of
pollution, reduce wastewater flow, or reduce energy-consumption. This would also
protect facilities from the threat of citizen suits as long as they comply with the terms
of the schedule and interim limitations.
Specifically, the CWA should allow the Agency to:
> Grant temporary waivers from applicable technology-based limitations (BPT,
BAT, BCT, NSPS, PSES, PSNS) (not to exceed three years from the date for
compliance with such effluent limitation which would otherwise be applicable)
to industrial facilities in exchange for environmental enhancement at the end of
the waiver period in the form of satisfying predefined minimum effluent
reductions that are more stringent than the applicable technology-based
limitations or, alternatively, meeting the applicable technology-based limitations
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in conjunction with enforceable conditions for satisfying a predefined minimum
reduction of total emissions to all other media, a predefined minimum reduction
in energy consumption, or an overall decrease in the cost of treatment.
> Require industrial facilities granted a short-term waiver meet the more stringent
of water quality-based effluent limitations (local limits in the case of industrial
users of POTWs) or previously effective BAT (PSES in the case of industrial
users of POTWs), whichever is more stringent, during the period of the waiver.
B. Marine Pollution Prevention & Control Technology Development
Amend CWA Section 312 to:
* Mandate review of non-sewage discharges incidental to the normal operation
of DOD vessels and other vessels designated by the Secretary of Transportation
as equivalent to DOD vessels. Determine whether regulation of such
discharges through the application of technology is appropriate, and if so,
establish and periodically review uniform national standards.
* Involve the States, federal agencies and other interested parties in the
development of standards, which would be enforceable by federal and State
authorities.
> Upon the effective date of such regulations, preclude development of vessel
discharge standards inconsistent with the national standards. Preserve the
right of States to establish no-discharge zones, under appropriate
circumstances, such as to protect environmentally sensitive areas.
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STORM WATER PROGRAMS
ISSUE:
How should CWA storm water requirements be revised to strengthen and facilitate
irrtplementation of storm water controls?
BACKGROUND:
States report that approximately 30 percent of remaining surface water quality
impairment is attributable to storm water discharges. Significant sources of storm
water discharges include urban runoff, industrial activity, construction, and resource
extraction (mining). For example, in urban areas, loadings from storm water runoff
for heavy metals, sediment, bacteria, polycyclic aromatic hydrocarbons (PAHs),
acidity, and floatables are higher than those from POTWs.
To address these environmental risks, Congress established in 1987 a two-phased
storm water program under CWA §402(p). Phase I applies to municipal storm sewer
systems serving a population over 100,000, as well as storm water discharges
associated with industrial activity.
In November of 1990, EPA issued regulations that identified 220 municipalities whose
separate storm sewer systems are subject to Phase I of the NPDES program. States
and EPA have designated an additional 550 municipalities as part of the Phase I
program. The Agency estimates that the Phase I municipalities have a population of
over 90 million people (about 36 percent of the total U.S. population). EPA and
authorized States have received comprehensive permit applications from many of the
municipalities, and are in the process of developing and issuing permits for these
dischargers.
In addition, the Phase I regulations established regulation of over 100,000 industrial
facilities in eleven categories, including manufacturing, mining, waste management,
construction, and transportation. Permits for storm water discharges from Phase I
industries generally were required to be issued by October 1, 1993. The Ninth Circuit
struck down EPA's exemption from Phase I regulations of construction sites under 5
acres and light industrial activities "with no exposure" to rain water.
Phase II applies to all remaining light industrial, commercial, retail, and residential
facilities with storm water discharges that are not in Phase I. Preliminary estimates
indicate that millions of facilities are not addressed by Phase I. Phase II is potentially
ten times larger in scope than Phase I, and could address a large number of
municipalities without significant urban populations. EPA was required to issue
Phase II regulations by October 1, 1993, which would designate classes of Phase II
storm water discharges to be regulated to protect water quality. Phase II sources are
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required to obtain a permit by October 1, 1994. EPA did not meet the October 1993
deadline for Phase II regulations.
Municipal Compliance with Standards
Municipal separate storm sewer systems (or "MS4"-those municipal systems that are
covered by the storm water program) have stated that it is both technologically and
financially impossible to establish treatment or management practices that can ensure
that urban storm water runoff complies with water quality standards. They have
indicated that it is highly uncertain whether feasible storm water control measures
(source controls, traditional structural controls, and best management practices) will
ensure that storm water discharges will meet water quality standards. They further
argue that the only other alternative, collecting and treating essentially all of the storm
water from widespread urbanized areas, would be infeasible and result in significant
destruction of urban streams arid wetlands.
Under the existing CWA, §402{p)(3)(B)(iii), a statutory standard exists that NPDES
storm water discharge permits issued to municipal separate storm sewer systems
require controls to reduce the discharge of pollutants in storm water to the "maximum
extent practicable" (MEP). The statutory standard can include management practices,
control techniques, and system design and engineering methods and other such
provisions that the Administrator or State determines are necessary for the control of
such pollutants. Because of the lack of a more specific definition of the statutory
standard of MEP, municipalities, permitting authorities, and members of the public are
uncertain as to the extent of storm water control requirements a municipality must
implement in its storm water management program.
Provisions for Facilities with No Exposure
EPA attempted to exempt from storm water control requirements certain industrial
facilities that had no exposure of materials, equipment, or wastes to storm water.
However, this exemption of facilities without storm water exposure was overturned
by the Ninth Circuit. Such an exemption, if reinstated through legislation, would
create a strong incentive for facilities to implement pollution prevention. It would
simultaneously accomplish environmental objectives (reducing pollutants in storm
water) and greatly reduce administrative burdens for EPA, States, and industries.
Deadline Extensions for Phase II
EPA is presently required to issue Phase II regulations designating sources for
permitting and establishing deadlines by October 1, 1993. In the absence of new
regulations, Phase II sources are required to have permits after October 1, 1994.
Given the scope and complexity of Phase II, EPA was unable to meet the October 1,
1993 regulatory deadline. Furthermore, EPA and authorized States will not be able
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to issue permits to all Phase II sources by October 1, 1994. This may expose
unpermitted dischargers, including many small municipalities or commercial enterprises
posing small risks, to litigation for discharging without a permit. In addition, potential
Phase II municipalities need additional time to develop the financial capabilities and
institutional frameworks needed to comply with storm water requirements.
Phase II Storm Water Requirements
Phase II regulations must be reasonable in scope and establish a workable program
that will focus on sources of storm water discharges that pose the highest risk. The
Bureau of Census has designated 396 urbanized areas which represent the most
widespread and dense urban development. These urbanized areas occupy less than
2 percent of the total land area of the United States but contain 165 million people,
or about 65 percent of the total population of the United States. In addition, most
new development occurs in or adjacent to these urbanized areas. Between 1980 and
1990, over 75 percent of the national increase in population occurred in these
urbanized areas. However, over 5,000 municipal entities in urbanized areas are not
in Phase I of the NPDES storm water program.
Authorize Municipalities to Directly Regulate Storm Water Facilities Within Their
Jurisdiction
Under current CWA provisions, the storm water program requires permits for industrial
activities even if they are discharging to municipal separate storm sewer systems
which also must obtain storm water permits. Municipalities argue that this is
redundant and inefficient, and also undercuts their effectiveness in directly dealing
with an industrial facility.
Inactive and Abandoned Mines
It is estimated that there are in the range of 400,000 or more inactive and abandoned
mine sites (lAMs) on Federal lands. The environmental damages posed by these sites
can vary significantly. While many sites are relatively benign, releases from other
sites result in significant environmental degradation, even decades after active
operations have ceased. A major administrative challenge is to (1) prioritize these
sites that cause environmental problems so that the United States can address them
in a rational environmentally protective manner, and (2) effectively protect water
resource quality by addressing these sites according to the prioritized order. Another
major challenge is to target control measures so as to achieve the greatest
improvement in environmental quality for the limited Federal resources that may be
available. Although the estimates of total costs of mitigating water resource quality
impacts from lAMs vary significantly, they range into the many tens of billions of
dollars without such cost-effective, risk-based prioritization.
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A significant number of lAMs on Federal lands are believed to have point source
discharges of pollutants, as defined under current statute and regulation, to waters
of the United States subject to regulation under the NPDES permit program. Given
the large number of lAMs and the costs of mitigating sites causing environmental
impacts, there is a need for a phased, cost-effective, risk-based prioritized approach
to mitigating these sources.
RECOMMENDATIONS:
The Administration recommends that the CWA be amended to do the following
Municipal Compliance with Standards
* Establish a phased permit compliance approach that requires best management
practices in first-round municipal storm water permits, and through improved
best management practices in second-round permits, where necessary, to move
towards compliance with water quality standards. In later permits, compliance
with water quality standards will occur using water quality based effluent
limits, where necessary. This would give EPA and municipalities additional time
to evaluate the technical feasibility of establishing numeric effluent limits to
meet water quality standards and give States time to develop specific water
quality standards appropriate for storm water discharges, if necessary.
* The Administration supports clarifying authority under section 402(p)(3)(B)
concerning "maximum extent practicable" (MEP). In contrast to best available
technology economically achievable (BAT) and best conventional pollutant
control technology (BCT) that are applicable for storm water discharges
associated with industrial activities, under MEP, storm water management
programs can be implemented in a site-specific and flexible manner to address
the storm water management concerns in the municipality. It should be made
clear that MEP allows for the consideration of different factors including: (1)
the severity of the impairment caused by the source, (2) the effectiveness of
alternative approaches at reducing storm water discharges, and (3) the cost of
control measures. Under MEP, a storm water management program can target
controls based on differences in the type and size of sources, climate,
geography, and water quality concerns. Based on a statutory clarification, EPA
will then issue guidance on the best methods by which to implement MEP in
NPDES permits.
> The Administration supports encouraging States to review and revise their
designated uses and water quality standards implementation procedures, as
they develop water quality-based permits, to reflect the episodic nature of
storm water runoff, the varying loadings during storm water events, and the
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potential resilience of natural ecosystems to some infrequent, temporary
incremental loadings.
Provisions for Facilities with No Exposure
> Authorize EPA to exempt from individual storm water permitting requirements
facilities that can certify that there is no nor will be exposure of industrial or
other activities or significant materials to rain water and snow melt. This
change would ensure that several hundred thousand low-risk facilities are not
subject to NPDES requirements, allowing allocation of resources to more critical
areas. This would also effectively create incentives for facilities to eliminate
contamination of storm water.
Deadline Extensions for Phase II
> Extend the Phase II deadline for EPA issue to regulations to October 1, 1997.
Also, extend the deadline to obtain a permit to October 1, 1999. These
extensions are necessary to allow EPA to work with States and municipalities
in developing workable, effective regulations. Extending the deadline for
permits would give municipalities an opportunity to begin to build institutional
frameworks and provide the funding necessary to implement storm water
management programs. It would also allow permits to be issued to Phase II
municipalities at the same time Phase I permits are expiring. This will promote
regional and watershed-wide permitting by allowing different municipalities to
be co-applicants and coordinate their storm water programs.
Phase II Storm Water Requirements
* Focus Phase II requirements on system-wide permits for municipal separate
storm sewer systems in Census-designated urbanized areas with a population
of 50,000 or more.
> Target storm water management programs for municipal separate storm water
systems (MS4) in the 138 Phase II urbanized areas associated with a Phase I
permitted MS4 to address, at a minimum, non-storm water discharges into
storm sewers and storm water runoff from growth and development and signifi-
cant redevelopment. The CWA should encourage NPDES permitting authorities
as part of a watershed approach to implement a more comprehensive municipal
storm water management program where appropriate based on water quality
impairments or other factors for the MS4s in these urbanized areas. In the
remaining 258 Phase II urbanized areas, storm water management programs
would be required which focus only on controlling non-storm water discharges
into storm sewers and storm water runoff from growth and development and
significant redevelopment activities.
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+ Under Phase II for those MS4s required to implement a storm water
management program targeted to growth, development and significant
redevelopment and illicit connections, the municipal program will control those
Phase II storm water sources, including discharges from construction of less
than 5 acres, which are part of growth, development, and significant
redevelopment activities and may address, where appropriate, subject to the
MEP standard, those Phase II sources causing water quality impairment. For
those municipal separate storm sewer systems required by the IMPDES
permitting authority to implement a more comprehensive storm water
management program, Phase II light industrial, commercial, retail, and
institutional storm water sources would be addressed through the program
under the municipality's NPDES storm water permit, which meets the MEP
standard. Phase II sources not addressed through a municipal program would
not be covered by the NDPES program.
+ Do not directly regulate Phase II light industrial, commercial, retail, and
institutional storm water discharges, and municipalities outside of Census-
designated urbanized areas under the NPDES program, unless otherwise
designated by the permitting authority for inclusion in the NPDES program
under §402(p)(2)(E) of the CWA. (EPA does not expect that this designation
process would be used, except in highly-unusual circumstances, to require an
NPDES permit for a typical homeowner.) Rather, such discharges could be
addressed by NPS program, if they were a targeted source.
Authorize Municipalities to Directly Phase I Industrial Regulate Storm Water Facilities
Within Their Jurisdiction Under the NPDES Program
> Allow EPA and authorized States to authorize municipalities to establish
programs for Phase I industrial storm water permit issuance and controls, where
it has the appropriate authority, and is willing to commit to implement Federal
requirements. EPA does not envision Federal funding to be available to
municipalities to perform this function. This recommendation is similar to the
industrial pretreatment program currently authorized under the CWA. As in the
industrial pretreatment program, storm water permits and controls that are
issued by municipalities in an EPA-approved program would be Federally
enforceable.
Inactive and Abandoned Mines
» The Administration recommends that the CWA be amended to make the
following changes to the NPDES permitting program to target control measures
so as to achieve the greatest improvement in environmental quality for the
limited Federal resources available for inactive and abandoned mine sites (lAMs)
without an operator present:
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o
The Administration supports clarifying authority to issue NPDES permits
on a State-wide basis for lAMs within resource management units (e.g.,
one permit per State for the National Forest Service, National Park
System, Bureau of Land Management, or Fish and Wildlife Service
resource areas). This would allow Federal land managers to establish
State-wide priorities based on impairment or threats to water resource
quality and the most effective use of the available resources. Such
priorities could allow some sites not to be controlled or be subject to
relatively less stringent controls.
The Administration supports an amendment to substitute, for existing
technology-based requirements under the NPDES program for lAMs on
Federal lands, the authority for Federal land managers to identify water
resource quality that is threatened or impaired by lAMs and to implement
targeted controls for such sites, similar to existing authority for permits
for municipal separate storm sewer systems contained in section
402(p)(3)(B).
The Administration further supports allowing, in general, no more than
up to ten years to meet appropriate water quality standards within a
resource management unit, as defined in the language above, from the
date of issuance of an NPDES permit to the Federal land manager. The
Federal land manager would be expected during this period to 1) strive
to achieve water quality standards as expeditiously as possible, 2)
continue to assess the water resource quality impacts of lAMs where
they are currently unknown, and 3) continue to implement targeted
controls for those sites causing impairments or threats once identified.
This provision should not apply to lAMs which were permitted under the
NPDES program prior to the date of enactment.
The Administration supports encouraging States to review and revise
their designated uses and water quality standards implementation proce-
dures, as they develop water quality-based permits, to reflect the
episodic nature of storm water runoff, the varying loadings during storm
water events, and the potential resilience of natural ecosystems to some
infrequent, temporary incremental loadings.
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COMBINED SEWER OVERFLOWS (CSOs)
ISSUE:
Should requirements for CSOs be specifically authorized in the CWA?
BACKGROUND:
As many as 1100 cities (almost 85 percent of which are located in the Northeast and
Great Lakes areas) serving a population of 43,000,000, have combined sewer
systems that overflow and result in the discharge of raw sewage, commercial and
industrial wastes and storm water to waters of the U.S. during wet weather events.
State water quality assessments have shown CSOs to be responsible for water quality
impairments, beach closures, fish kills and shellfish bed closures. The 1992 Needs
Survey Report estimates costs to properly control discharges from CSOs to be $41.7
billion.
In 1989, EPA took initial steps to address the CSO problem by issuing a CSO strategy
calling for positive actions toward abating CSOs and achieving water quality
standards. EPA has circulated a draft "Combined Sewer Overflow Control Policy"
(January 1993) that comprehensively expands the 1989 CSO policy and will drive
future actions. This draft policy was developed through negotiations with State,
environmental, and municipal representatives. Public comment on the draft has been
highly supportive. The draft policy contains provisions for developing appropriate,
site-specific NPDES permit requirements for all combined sewer systems that overflow
as a result of wet weather. The draft policy also announces an enforcement initiative
to require immediate elimination of overflows that occur during dry weather.
RECOMMENDATION:
+ The Administration recommends that Congress in the 1994 amendments to the
CWA endorse the new CSO Policy and its principles. The CSO Policy ensures
that municipalities, permitting authorities, water quality standard authorities,
and the public engage in a comprehensive and coordinated planning effort to
achieve cost effective CSO controls that ultimately meet the appropriate health
and environmental objectives. The key principles are: (1) providing clear
targets of control that would be "presumed" to meet water quality standards;
(2) providing sufficient flexibility to municipalities, especially financially
disadvantaged communities, to consider the site-specific nature of CSOs and
the incremental pollution reduction achieved and incremental cost of a range of
control options in developing long-term plans; (3) allowing financial capability;
and, (4) review and revise, as necessary, water quality standards and their
implementation procedures when developing CSO control plans to reflect the
episodic nature of overflow events and local ecosystem conditions.
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The EPA Administrator will develop further guidance on the implementation of
the CSO policy that recognizes and properly reflects these principles and
encourages innovative approaches for achieving the objectives of the policy.
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PRETREATMENT
ISSUE:
How should CWA pretreatment requirements be revised to strengthen and fapilitate
implementation of controls on indirect discharges to POTWs?
BACKGROUND:
The National Pretreatment Program is a joint regulatory effort by EPA, States, and
municipalities to ensure that non-domestic discharges of pollutants to publicly owned
treatment works (POTWs) do not interfere with POTW operations, pass through to
receiving waters, or contaminate sewage sludge. The pretreatment program has
evolved considerably over the past twenty years, and now extends to more than
200,000 non-domestic sources (including 30,000 significant industrial users). The
program is implemented primarily at the local level, where approved local pretreatment
programs at over 1,5000 POTWs address nearly 80 percent of the nation's municipal
wastewater flow annually.
Experience with the pretreatment program leads the Administration to recommend
statutory changes to provide authority to allow EPA to issue control mechanisms to
industrial users, and modify the scope of the Domestic Sewage Exclusion (DSE) within
the CWA.
Permitting Indirect Users
EPA does not have the authority to issue discharge permits to lUs of POTWs even
where EPA must act as the pretreatment control authority (i.e., where there is no
approved State or local pretreatment program), or where the control authority fails to
issue a control mechanism in a timely manner. The lack of such permitting authority
for EPA results in complicated enforcement of pretreatment requirements. In addition,
this may also result in disparate regulation of similarly situated industries.
Domestic Sewage Exclusion
Wastes that would otherwise be regulated as hazardous wastes under RCRA are
regulated solely under the CWA (and not RCRA) if discharged to POTW collection
systems. There is some concern that such wastes are not adequately regulated under
existing CWA pretreatment authorities. The Administration, however, opposes
repealing the DSE because it believes that existing pretreatment authorities generally
are adequate to control discharges of RCRA hazardous wastes to POTWs. The
Administration does, howevejr, recommend narrowing the applicability of the DSE
under the CWA.
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RECOMMENDATIONS:
» EPA should be authorized to issue permits to those IDs for which EPA is the
control authority. EPA should also be authorized to enforce all ID permits
through administrative and judicial (both civil and criminal) procedures.
> EPA/State should be authorized to develop local limits if there is no local control
authority.
> The Administration proposes to amend the CWA to prohibit discharges of
material in domestic sewage that otherwise would be considered hazardous
waste under RCRA into a POTW unless:
o the source is subject to and in compliance with an applicable categorical
standard, or is subject to a general pretreatment standard established to
regulate waste having the hazardous characteristics of the waste
discharged;
o the wastestream and source are scheduled under CWA §304(m) to be
regulated within five years to a new or revised pretreatment standard;
o the waste is introduced in de minimis amounts (by households, non-
commercial entities, non-commercial entities, government office
buildings, or similar sources only);
o the pollutant and source are in compliance with a local limit regulating
the hazardous constituents or that is a reliable indicator for the
hazardous constituents;
o the pollutant and source are in compliance with a technology-based local
limit established by the pretreatment approval authority (for sources
discharging to non-pretreatment POTWs only); or
o the wastestream and source will be subject in accordance with a
statutory schedule, to a Toxic Reduction Action Plan, as defined by the
statute, developed by the POTW to reduce discharges of hazardous
wastes and toxic pollutants.
The proposed revisions to the DSE would also require each pretreatment POTW
to develop a Toxicity Reduction Action Plan (TRAP) for commercial users that
are not subject to (or scheduled to be subject to) categorical standards. TRAPs
would reduce hazardous waste and toxic pollutant discharges to POTWs
through means such as public education, best management practices, and
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technology-based local limits. EPA would provide guidance on the development
and implementation of such plans.
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CHAPTER 7--MONITORING
Water quality monitoring of physical, chemical, and biological conditions is essential
for setting strategic planning goals, describing water quality status and trends,
detecting water quality problems, helping design protection, restoration, and
remediation programs, and measuring environmental results. Monitoring and data
management programs cover many activities, including: data collection; data analysis;
information storage and retrieval; and evaluation and reporting. Many Federal, State,
Tribal, local, private, and volunteer agencies and groups monitor water quality.
Monitoring is required by the CWA, other statutes, and agency programs.
The Administration proposes to strengthen the CWA by working with the States to
outline minimum monitoring requirements for State programs under CWA authorities.
Stronger State monitoring programs will help to focus CWA programs on waters that
need management attention. More comparable State monitoring programs will
generate compatible information to aggregate into a nationwide water quality
assessment. Stronger State imonitoring programs also will help State and Federal
agencies do a better job of determining whether our environmental management
programs are achieving the environmental results that we seek.
The Administration also proposes an improved inventory and reporting system. Every
five years, States would take inventory of their impaired, threatened, and high quality
waters that need special protection. The States would provide a list of such waters
to EPA for approval. The inventories would complement reports submitted on the
overall condition of water quality throughout the States, as already required under
Section 305(b). In addition to information from the inventories, the State 305(b)
reports and EPA's aggregation of them in its report to Congress would draw upon the
scientific information gathered by many other programs. These comprehensive
inventories and reports would provide an excellent basis for establishing national
priorities for pollution prevention, restoration, and management programs and for
applying Federal, State, and local resources and control requirements in the most cost
effective manner.
The Administration is committed to compatible and well-coordinated water quality
monitoring programs. Major Federal, State, and other public and private monitoring
agencies are working together on the Intergovernmental Task Force on Water Quality
Monitoring (ITFM). The ITFM has already proposed a national strategy for water
quality monitoring that addresses the institutional framework to conduct monitoring;
environmental indicators to measure progress toward national goals; comparable data
collection methods and data management systems; and national reporting of water
quality conditions. The Administration strongly supports this successful Task Force.
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STRENGTHENING STATE AND TRIBAL PROGRAMS
ISSUE:
What is the best way to strengthen State and Tribal water quality monitoring
programs?
BACKGROUND:
State and Tribal water quality monitoring programs generate important data and
information necessary to guide water quality management decisions and track
environmental progress. Water quality monitoring programs support States and Tribes
as they implement their own water management programs and the many CWA
programs delegated to them by EPA. Stronger State monitoring and data
management programs will help to better target the waterbodies that need the most
attention for clean up, better protect areas that already meet water quality standards,
and begin to assess waters about whose health little is known. Stronger State water
quality monitoring programs also will help the States, EPA, and other Federal agencies
do a better job of determining the extent to which management and control programs
are achieving the environmental results that we seek.
Greater comparability is needed among State water monitoring programs and among
the analytical methods that all water quality monitoring programs depend upon. The
current lack of comparability hinders the usefulness of data and prevents aggregation
of information on a National basis. Furthermore, more efficient and better coordinated
and targeted monitoring programs will more fully support integrated watershed
management, including the development of appropriate goals and indicators as well
as the measurement of success.
Currently, section 305(b) requires States to submit reports to EPA every two years,
however, there are not sufficient resources to carry out comprehensive State-wide
assessments on this time frame. Consequently, 305(b) reports can only provide
information on a portion of the Nation's waterbodies. If the period between reports
were extended from two to five years, States could gather and analyze sufficient data
to provide a more comprehensive "snapshot" of the condition of their waterbodies.
RECOMMENDATIONS:
> The Administration proposes that the CWA should direct EPA to work closely
with States and other Federal agencies to establish effective minimum
monitoring and reporting requirements. Such State monitoring requirements
should be established as part of a coordinated national monitoring strategy and
include appropriate incentives to ensure compliance.
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In addition, the CWA should also change the requirements for the 305(b) report
from a two-year cycle to a five-year cycle, and specifically include water
resource data from other Federal agencies. A longer reporting cycle would
allow States to assess all their waterbodies over the reporting time period, and,
if States and Federal agencies use comparable methods in their assessments,
will enable the 305(b) report to be used to portray water quality trends. While
States would submit a formal 305(b) report every five years, they should also
submit to EPA, electronically if possible, annual updates of key information,
such as strategically determined environmental indicators.
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INVENTORY OF WATERS
ISSUE:
How should States identify impaired, threatened, and special protection waters
(including wetlands) and establish priorities for water quality management activities?
BACKGROUND:
The CWA contains numerous requirements, some added in previous reauthorizations,
to characterize water quality. The proliferation of these requirements has resulted in
an array of lists, reports and schedules. For example, §305(b) requires States to
report to Congress; §303(d) requires States to identify water quality limited waters
and establish priorities for waters needing control measures through Total Maximum
Daily Loads (TMDLs); §314(a) requires States to assess lakes as a prerequisite to
receiving §314 grants; §319(a) requires States to identify waters that are not
expected to meet standards without control of nonpoint sources; and, §304(1) requires
States to identify problem waters according to 3 categories.
Each of these requirements was intended to fulfill a specific information or program
need. However, as the water program matures and the protection and restoration of
living aquatic resources is recognized as an overall goal along with protection of
human health, single purpose, overlapping lists and reports become more and more
ineffectual. This decline in utility is reflected in redundant and overlapping program
requirements and the associated waste of scarce State and EPA financial and
personnel resources.
More importantly, a comprehensive inventory and listing of threatened, impaired, and
special resource waters could provide an excellent tool for applying Federal, State, and
local resources and control requirements in the most cost effective manner. This is
needed because single purpose lists do not effectively support the targeting efforts
that are needed to select the most important areas in which to dedicate scarce
resources.
RECOMMENDATIONS:
> The Administration recommends that the CWA provide for a comprehensive
State inventory of waters under a new section 305(c). This inventory would
satisfy the requirements of other lists of waters required by the CWA. The
comprehensive inventory of waters would provide one list of waterbodies and
wetlands for each State to be used as a common basis for planning,
management, and protection. For example, the inventory would be used to
help write §305(b) reports; revise water quality standards under §303(a);
identify waters requiring TMDLs under §303(d); determine site management
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measures required under §319; establish permit issuance schedules under
§402; and determine watersheds for which comprehensive watershed
management plans would be developed and implemented under §321.
Each State inventory would build upon existing sources and readily available
data and would contain: (1) a list of waters, including urban waters, wetlands
and estuaries, for which existing pollution control requirements are not
expected to be stringent enough to achieve applicable State water quality
standards; (2) a list of waters, including urban waters, wetlands and estuaries,
in which the achievement of State water quality standards is threatened by any
pollutant, factor, or combination thereof; (3) a list of waters, including urban
waters, wetlands and estuaries, that require protection of drinking water
supplies, protection of endangered species or habitat supporting threatened or
endangered species, or high quality waters, special protection waters, and
special protection as outstanding natural resource waters or waterbodies
(including priority ground waters that are directly hydrologically connected to
surface waters) as the State or EPA may determine; (4) an identification of the
categories and subcategories of sources causing or substantially contributing
to the failure to meet applicable State water quality standards for each
waterbody, including urban waters, wetlands and estuaries; and (5) a
delineation of watersheds for all waters listed, including urban waters, wetlands
and estuaries.
Each State would need to provide for public review of their proposed State
comprehensive inventory of waters prior to submission to EPA. EPA would
review the inventory and within 90 days approve, conditionally approve, or
disapprove the State inventory. In exercising this authority, EPA would seek
input from federal natural resource trust agencies. In the absence of an
acceptable State submission, EPA would prepare and publish a comprehensive
State watershed inventory for a State.
EPA would base approval or disapproval of State lists on relevant data from the
States, other Federal agencies and other relevant sources, to ensure that all
appropriate data are included in the inventory.
Each State would be required to make the §305(c) lists widely and publicly
available in communities across the State. Such lists should be in forms that
are easily understood (e.g., maps) and may be placed where they are readily
available to the public (e.g., public libraries).
The schedule for the development of this inventory shall be consistent with the
other requirements or guidance issued under this Act. The first inventory
should be required within 2 years of enactment, and subsequent inventories
every 5 years thereafter.
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COORDINATION OF WATER MONITORING
ISSUE:
How should the water monitoring activities of Federal, Regional, State, and local
agencies, Indian Tribes, and private organizations be coordinated to support the
mandates of the CWA?
BACKGROUND:
Water monitoring activities include the collection, analysis, processing, interpretation,
and reporting of water information. Many agencies collect information on surface
water and ground water quantity and quality, sediment erosion, transport, and
deposition, sediment quality, wetlands, aquatic communities, atmospheric deposition,
and water use. While the CWA emphasizes water quality monitoring, other kinds of
water and habitat information are essential for the interpretation and analysis of water
quality conditions and trends and the identification of cause and effect relationships.
For example, the computation of pollutant loads carried by rivers requires both water
quality information and stream discharge information, and the assessment of aquatic
habitat requires information about the geometry of the stream channel. Because
water data collection responsibilities are dispersed among all levels of government, the
identification and implementation of opportunities to make better use of available
resources for water monitoring requires cooperation and coordination among many
agencies and organizations.
Currently, State and Federal agencies and the private sector spend hundreds of
millions of dollars to collect water quality monitoring information. These expenditures
do not always yield information needed to support newer program directions such as
watershed management and ecosystem protection. In particular, information is
needed to evaluate the status and trends of ambient water quality at regional and
national levels; to establish water quality standards; to evaluate the effectiveness and
performance of water quality control programs; and to anticipate emerging problems.
The Office of Management and Budget (OMB), recognizing the need to improve the
coordination of Federal water information programs and to develop effective working
relationships with State and local agencies, Indian Tribes, and the private sector,
established the Water Information Coordination Program (WICP) in December 1991
(OMB Memorandum No. M-92-01). Activities of the WICP are overseen by a sub-
Cabinet level Steering Committee and carried out by a Federal Interagency Committee
on Water Data, and a Federal advisory committee. Coordination also is maintained
with the Federal Geographic Data Committee. In January 1992, the WICP established
the Intergovernmental Task Force on Monitoring Water Quality (ITFM) to evaluate
water quality monitoring activities in the U.S. and recommend improvements.
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A report to OMB of the ITFM's first year's activities outlines a proposal to carry out
a national strategy to enhance water quality activities and to support better
management decisions. The strategy includes the establishment of a national council
and regional entities to coordinate Federal and non-Federal water monitoring activities.
ITFM task groups are addressing issues of data sharing and access, the use of
environmental indicators to evaluate whether the water quality of a waterbody meets
its designated use, the establishment of performance-based methods for data
collection and analysis, and the development of recommendations for assessing and
documenting the condition of water resources. The ITFM also has established several
prototype field coordination efforts and proposes to initiate a Methods and Data
Comparability Council to provide guidance on the development of performance-based
data collection methods and protocols to enhance determination of data comparability.
Representatives of Federal, Regional, State, and local agencies, Indian Tribes, and the
private sector are involved with ITFM at the regional and State levels throughout the
country to discuss the proposed strategy and to identify the next steps needed to
improve the field coordination of monitoring activities.
Coordination of water monitoring activities is urgently needed to support water
planning, management, and regulatory activities at all levels of government. The
Administration has recognized this need and has put in place mechanisms to improve
intergovernmental coordination. The CWA should recognize the need for improved
coordination and enhance the ability of Federal, State, and other agencies to work
together to achieve common monitoring goals. Existing mechanisms, especially the
ITFM and the WICP are working well, and, the scope of ITFM may be easily modified
to meet changing needs for coordination. For example, the scope of OMB
Memorandum M-92-01 could be expanded to include marine waters to improve
coordination between freshwater and saltwater monitoring activities.
RECOMMENDATION:
* The Administration recommends that the CWA should recognize the need for
improved collaboration of water quality monitoring activities, and complement
or enhance existing activities, not duplicate or supplant them. In particular,
EPA and other Federal agencies should continue to use existing coordination
mechanisms, such as the Intergovernmental Task Force on Water Quality
Monitoring and the Water Information Coordination Program, to coordinate their
water information activities and identify emerging areas of need.
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RELATIONSHIP OF OTHER AGENCY RESEARCH AND MONITORING
ACTIVITIES TO THE CLEAN WATER ACT
ISSUE:
The CWA should acknowledge and better coordinate the water quality research and
monitoring activities conducted by all Federal agencies in support of their missions and
Federal statutes.
BACKGROUND:
Many Federal agencies conduct water quality research and monitor water quality as
part of their missions. These activities may be mandated by Federal statues, such as
the Coastal Zone Management Act (NOAA), the Safe Drinking Water Act (EPA), the
Marine Protection, Research, and Sanctuaries Act (NOAA), and the National Forest
Management Act (Forest Service). They also may support land and natural resource
management programs (National Park Service, Fish and Wildlife Service, Forest
Service, NOAA, and Bureau of Land Management) or advance scientific understanding
of hydrologic and environmental processes (USGS, Agricultural Research Service,
Department of Energy, and NOAA).
These activities are conducted independently of the mandates of the CWA but can
contribute much to the knowledge base and scientific understanding needed to
administer the provisions of the Act. For example, USGS studies develop information
on the quantity and quality of water resources with particular emphasis on hydrologic,
hydrogeologic, and geochemical processes, many of which are undertaken in
cooperation with State and local agencies. The USDA investigates the impacts of
agriculture and forestry practices on water quality, and NOAA monitors coastal waters
to assess the status and trends of environmental quality. The Army Corps of
Engineers is studying wetlands restoration and hydrogeomorphic evaluation of
wetlands functions.
The information produced by these and other programs can provide crucial information
that can be used to support CWA goals. Attainment of these goals can be
significantly enhanced by using the wide range of water quality related information
generated by all agencies.
Because water quality research is carried out for purposes other than support of the
CWA, it is appropriate that research should be coordinated by an existing interagency
mechanism like the National Science and Technology Council (NSTC). NSTC will be
a prominent forum for the exchange of information about agency research activities
and for developing coordinated plans for future research.
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RECOMMENDATIONS:
> The Administration proposes that language be added to the CWA to recognize
and acknowledge the water quality research and monitoring undertaken to
support statutes such as the Coastal Zone Management Act, the Marine
Protection, Research, and Sanctuaries Act, the Safe Drinking Water Act, the
National Forest Management Act, the Food Security Act, the Food, Agriculture,
Conservation, and Trade Act, and many other related initiatives and programs.
* The Administration also recommends interagency coordination of existing and
expanded monitoring under the National Coastal Monitoring Act, the Clean
Water Act, the Marine Protection, Research, and Sanctuaries Act, and other
statutes that provide the information needed to evaluate the effectiveness of
Clean Water Act programs in protecting U.S. waters and associated resources.
> In addition, research activities authorized by the CWA should be coordinated
with activities mandated by other environmental statutes using existing
mechanisms, such as FCCSET.
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CHAPTER 8--MISCELLANEOUS ISSUES
NATIONAL ESTUARY PROGRAM MANAGEMENT PLANS
ISSUE:
How should the National Estuary Program (§320) be strengthened so that EPA can
provide funds to Management Conferences for overseeing and facilitating
implementation of management plans?
BACKGROUND:
The National Estuary Program (NEP) was established under §320 of the CWA, as
amended in 1987. Its mission is to identify nationally significant estuaries, protect
and improve their water quality, and enhance their living resources. Through the NEP,
EPA brings together key Federal, State and local,organizations to comprehensively
address problems in each estuary using a watershed protection approach. Each
estuary project in the NEP is managed by a collaborative body called the Management
Conference, which uses a consensus-building process to identify major environmental
problems in the estuary and develop Comprehensive Conservation and Management
Plans (CCMPs) for addressing them.
The NEP currently includes 21 programs: Casco Bay, ME; Massachusetts Bays and
Buzzards Bay, MA; Narragansett Bay, Rl; Long Island Sound, CTand NY; Peconic Bay,
NY; San Juan Bay, PR; New York-New Jersey Harbor, NY and NJ; Delaware Estuary,
NJ, PA, and DE; Delaware Inland Bays, DE; Albemarle-Pamlico Sounds, NC; Indian
River Lagoon, Tampa Bay, and Sarasota Bay, FL; Barataria-Terrebonne Estuarine
Complex, LA; Galveston Bay and Corpus Christi Bay, TX; Santa Monica Bay and San
Francisco Estuary, CA; Tillamook Bay, OR; and Puget Sound, WA. Puget Sound,
Buzzards Bay, and Narragansett Bay have completed CCMPs that have been approved
by the EPA Administrator. Six other programs are expected to complete their CCMPs
in FY 1994.
At present, EPA can provide no financial assistance to Management Conferences
under §320 once the CCMP is completed, because §320(g)(2) allows grants to be
awarded only for the development of CCMPs. However, under §320(b). Management
Conferences must coordinate and facilitate the implementation of the plan, assess the
effectiveness of implementation of the plan, and review proposed Federal projects for
consistency with the CCMP. These statutory responsibilities cannot be met until the
CCMP is completed and implementation begins, yet §320 provides no grant authority
to support these activities. Because the development and implementation of a CCMP
should be an iterative process, these monitoring and oversight responsibilities are
critical so that mid-course corrections in management actions can be made.
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For implementation of CCMP action plans, §320 directs that funding be sought from
monies appropriated under Title II (construction grants), Title VI (SRF), and §319 (NPS
grants). The Administration recognizes that the major responsibility for CCMP
implementation remains with the States and localities where the benefits will be
realized. Specific NEP Implementation grants and set-asides under the CWA would
remove incentives to obtaining funds under existing authorities that may be more
tailored to specific CCMP action plans. For example, activities in approved CCMPs
are eligible under the construction grants, SRF, and NPS grants programs. Rather
than changing the CWA, the Administration believes that States should revise their
SRF and NPS funding priorities to reflect CCMPs.
RECOMMENDATION:
+ The Administration recommends that §320 be amended to provide EPA the
authority to award grants from currently available funds to support limited
oversight and facilitation activities. Management Conferences would be
extended or reconvened to conduct such oversight activities for a limited time,
after which States would be expected to incorporate NEPs into their watershed
management programs. CCMPs would need to be modified to meet the criteria
for watershed management plans under State watershed management
programs. (See Chapter 4 on Watershed Management and the following
discussion of NEP and Watershed Management.)
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THE NATIONAL ESTUARY PROGRAM AND
THE WATERSHED PROTECTION PROGRAM
ISSUE:
What would be the relationship of the National Estuary Program to the proposed State
Watershed Management Program?
BACKGROUND:
While EPA's National Estuary Program (NEP) and former Near Coastal Waters Program
(NCW) have conducted action planning projects in about one quarter of the estuaries
in the contiguous 48 States, they have also produced a body of methods, training
programs, and other knowledge which can readily be transferred to other coastal and
estuarine areas and similar efforts in any watershed. This technology and knowledge
represents significant advancement in localized geographic targeting, multi-agency
integration, consensus building, and ecosystem protection. Central to the success of
the NEP is the use of basin-wide and watershed-wide targeting approaches to identify
priority problems. In the proposed State Watershed Program (see Chapter 4)
individual NEPs could provide much of the coastal component of the State Watershed
program (as they are doing often in the case of the nonpoint source pollution control
plans required under section 6217 of the Coastal Zone Act Reauthorization
Amendments). The challenge is to build on what has been learned over the last eight
years of the NCW and NEP and have the NEP and the State Watershed Programs be
mutually supportive.
The proposed State Watershed Program presents a managing framework that is
already employed by the NEPs. Furthermore, several of the NEPs are working on
CCMPs that give detailed action plans for the surrounding watershed (including
interstate) as well as for the estuary itself. Through amendments to the CWA, the
NEPs and State Watershed Programs could be tied together by providing requirements
and incentives for the CCMPs to be approvable under and consistent with the State's
new watershed program. In some coastal States, the NEP could fulfill the coastal
component of the watershed program and, in other States, be the beginning focal
point and catalysts for the watershed program. While full NEPs would not be
necessary in all estuaries, NEPs and other EPA coastal programs could provide
technical assistance and guidance to coastal watershed management entities to help
accelerate the development of their plans. In particular, NEPs have significant
interstate experience and also have studied many controversial topics such as
implementation financing alternatives. In addition, NEPs may have already activated
key stakeholders who would have interests in broader watershed efforts.
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RECOMMENDATIONS:
Changes to the CWA are necessary to ensure linkage of NEPs and State watershed
programs. The Administration recommends that:
+ In order to receive additional funding under section 320, NEPs in States with
approved watershed management programs should be required to modify their
CCMPs to be consistent with the States' requirements for watershed
management plans. CCMPs developed under the NEP may be considered for
approval as watershed management plans in States with approved watershed
programs. If approved as watershed management plans, then CCMPs should
be eligible for incentives under the watershed program.
> Future NEPs should be designated only if such action is consistent with the
States watershed program and, after five years after enactment, only in those
States with approved watershed programs.
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GROUND WATER AND DRINKING WATER PROTECTION
ISSUE:
How should the CWA be revised to strengthen protection of ground water and better
support efforts to protect sources of drinking water?
BACKGROUND:
Ground water is a vitally important resource; it supplies half of the Nation's drinking
water and, on average Nationwide, 40 percent of annual streamflow. Ground water
also discharges into lakes, wetlands, and estuaries. States have identified a broad
range of ground water contaminants and contamination sources that threaten the
resource, including sources that come under the authority of the CWA. In addition,
a 1990 EPA survey of pesticides in drinking water showed that about 10.4 percent
of the community water system wells nationwide contain detectable levels of one or
more pesticides and that as many as 1,130 wells, serving some 3 million people, may
have levels of nitrates above current health standards. Studies of such critical
ecosystems as the Chesapeake Bay and the Everglades show that ground water
discharges to surface waters can be a major source of contamination.
Despite the importance of ground water and the potential threats to human health and
ecological systems from its contamination, ground water protection is not a major
focus of the CWA. For example, ground water is not mentioned in the Goals and
Policy section of the CWA, and throughout the Act terms such as "navigable waters"
and "water quality standards" are intentionally limited to surface waters. However,
water quality standards as implemented by NPDES permits, cannot adequately protect
ground water sources.
In meeting human health objectives, watershed management programs could play a
major role in helping prevent contamination of all sources of drinking water for public
water systems. Preventing contamination of source waters represents the first line
of defense against public health risks and escalated monitoring and treatment costs
associated with meeting surface and drinking water quality standards. Coordination
between watershed management programs and ground-water protection programs
operating in the same watershed will be particularly important if the Administration's
recommendations for amending the SDWA to establish prevention-based programs to
protect sources of drinking water are enacted. States should be encouraged to build
on existing Comprehensive State Ground water Protection Programs.
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RECOMMENDATIONS:
The Administration recommends that the CWA be amended as follows:
» Add a national policy statement to the Goals and Policy section [101 (a)] to
acknowledge the interrelatedness of ground waters and surface waters and to
state that CWA programs should reasonably avoid implementing actions to
protect one medium at the expense of the other.
> Strengthen protection of human health as an objective of the CWA by adding
public drinking water protection to the interim water quality goal in Goals and
Policy subsection [101{a)(2)].
> Include human health protection from drinking water contamination as an
important objective of provisions establishing watershed management
programs. This will facilitate protection of drinking water sources as required
by the SDWA.
* Confirm and clarify that a point source discharge to ground or to ground water
that has a direct hydrological connection with surface waters is subject to
regulation as a NPDES point source discharge if there is (1) a reasonably
foreseeable direct hydrologic connection to surface waters in the proximity of
the release, (2) a greater than de minimus quantity of the pollutant must
reasonably be able to reach the surface water, and (3) no other Federal statute
directly addresses the activity causing the release.
+ Include priority ground waters and public drinking water supplies in any
amendments to the CWA that require or encourage States to develop
inventories of waterbodies and delineated watersheds to use as a basis for
planning and protection.
+ To any amendments to §305(b) that establish State water quality monitoring
programs, include as a requirement of these programs that States provide
indicators, to be determined by EPA, on the quality of current or reasonably
anticipated sources of drinking water and require coordination with significant
Federal, State, and local monitoring programs (including State and Federal
drinking water and ground water monitoring programs).
* Amend §305(b) to allow States, at their discretion, to include in their water
quality monitoring programs monitoring of ground water to determine ground
water quality and the interaction between water pollution problems in ground
water, surface water, aquatic sediment, and wetlands.
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Provide that State grant provisions in the CWA (e.g., 106, 319) continue to
allow funding of State ground water protection activities.
To the extent possible, make the CWA amendments consistent with the SDWA
or any amendments thereto.
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INCREASING TRIBAL ASSUMPTION OF EPA WATER PROGRAMS
ISSUE:
How should the CWA be amended to foster tribal assumption of water quality
programs?
BACKGROUND:
Tribal governments have made great progress in developing and implementing EPA's
water programs since the 1987 CWA Amendments included §518, which addresses
Indian water program development and assumption. Section 518 authorizes EPA to
treat Tribes that meet certain prerequisites in the same manner in which it treats
States, for purposes of specific programs for which Tribes are eligible to apply for
grant funding and/or to administer. It also establishes specific requirements a Tribe
must comply with in order to be treated as States for purposes of assuming
administration of water programs. Section 518 also sets forth a specific funding
limitation for grants to Tribes under §319.
EPA has issued final regulations identifying requirements for Indian Tribes to be
treated as States for purposes of water programs, with the exception of the NPDES
Permit Rule which will be finalized shortly. Approximately 80 "Treatment as a State"
determinations have been made under various CWA grant programs. EPA has
approved the Water Quality Standards Program developed by the Pueblo of Isleta,
Pueblo of Sandia and Pueblo of San Juan. EPA also expects other Tribes to apply for
assumption of other environmental programs shortly. Many Tribes have made
significant progress in developing the capacity and identifying the resources necessary
for program assumption.
Despite this progress, EPA and Tribal officials have experienced a number of barriers
that complicate Tribal assumption of water programs. Some of these barriers are due
specifically to provisions of the current CWA and should be addressed through
amendments to the law. These statutory barriers are exacerbated by current budget
constraints being experienced across the Federal government. To ensure
environmental protection of water resources on Indian lands, we need to establish an
efficient Indian program under the CWA - one that minimizes administrative burden,
provides an appropriate amount of flexibility, and supports the Federal government's
and EPA's Indian policies.
Lack of Resources for Water Quality Programs
The most significant barrier to full implementation of the Indian water quality
programs is the lack of adequate resources necessary for Indian Tribes to develop the
capacity to implement the various water programs and for EPA to provide Tribes
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financial and technical assistance. This has resulted in fragmented program
implementation. To date, Tribes are using grant assistance to employ and train staff
and purchase equipment. Without continuing grant support, they cannot maintain
staffing and/or utilize equipment. While these activities are critical, Tribes need
increased long-term funding that can be counted on for program development as well
as EPA technical assistance to undertake activities necessary for program assumption.
Funding Caps or Limitations
CWA sets limits on the use of funds by Indian Tribes for program implementation in
that Tribes can receive no more than 1/3 of 1 percent of total appropriations in a
given year for the §319 IMPS Program and 112 of 1 percent set-aside of appropriations
under Title VI for construction of treatment works. These caps limit EPA's ability to
provide grants for Tribal program development and delegate authority to Indian Tribes
to administer water programs.
Match Requirements
CWA established specific requirements for Indian Tribes to match Federal funds under
certain program grants. Clean Lakes grants and NPS grants require 30 percent and
40 percent matches, respectively. Matching requirements may prevent Tribes with real
needs and statutory responsibility for implementing environmental programs, from
qualifying for grants. EPA recognizes the economic hardship some Tribes experience.
Match requirements for "needy Tribes" impede EPA's ability to ensure environmental
protection on an equitable basis.
Administrative Burden and Confusion of Multiple Grant Requirements
§518 of CWA presents significant administrative burdens to the Tribes. The separate
grant programs covered in §518 (not to mention programs under other environmental
statutes) have different administrative requirements, time lines, and application
procedures, among others. Consequently, it has been difficult for EPA and Tribes to
track the different requirements. Paperwork requirements and the resources needed
simply to administer the various grant programs separatelyhave also been
overwhelming for the Tribes. Most Tribes do not have the large infrastructure of
State agencies to administer separate programs. As a result. Tribes currently spend
a significant part of their resources on staffing and addressing administrative
requirements rather than developing regulatory programs and conducting
environmental monitoring.
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RECOMMENDATIONS:
The CWA should be amended as follows:
> Provide EPA with authority to establish a comprehensive water grant modeled
after the recent Indian Environmental General Assistance Act of 1992 (PL 102-
497 Section 11), which would allow Tribes to develop "integrated" water
programs customized to their specific needs. However, the set-aside from title
VI appropriations for construction of treatment works should remain a separate
grant authority under §518 and be raised to 1 percent. The comprehensive
water grant authority should:
o include either a level-of-effort or a 5 percent match requirement which
could be waived based on Tribal hardship;
o establish a level of up to 5 percent of specific program appropriations for
an Indian set-aside; and,
o not include any "Treatment as a State" requirements except for a
requirement to demonstrate the capability to administer the
comprehensive grant. (While "Treatment as a State" requirements
should be deleted for purposes of the comprehensive grant, Indian Tribes
should still be required to demonstrate capability and appropriate
jurisdiction to receive authorization to administer the Water Quality
Standards, Wetlands, §319 nonpoint sources and NPDES/Sludge
Regulatory Programs.)
> Remove the one-third of one percent limitation in §518(f) for grants for Indian
Tribe nonpoint source programs.
> Provide EPA with discretionary authority to waive CWA grant eligibility
requirements as EPA deems appropriate to expedite Tribal assumption of CWA
programs. This provision would authorize EPA to examine, on a grant program
basis, and waive where appropriate, provisions that present unnecessary
impediments to Tribal assumption of CWA programs.
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WATER USE EFFICIENCY
ISSUE:
Currently there is no legislertive framework for pursuing federal policy on, or
promoting, water use efficiency. With a commitment to water use efficiency we
could add opportunities for more efficient resource decisions and achieve
environmental benefits (e.g., avoid construction of overly large municipal wastewater
facilities).
BACKGROUND:
There is a growing interest on the part of environmental groups, the public, Congress
and the Administration in improved water resource management as a way to achieve
water quality and quantity goals. A number of environmental benefits can be
achieved through water use efficiency, including the reduction of industrial pollutants
through recycling of process water, protection of aquatic habitats because using less
water helps maintain streamflows, and conservation of energy because less water
needs to be pumped, treated, and heated. Additionally, the benefits of water
efficiency, both in terms of preventing pollution and of reducing the need for and cost
of water supply and wastewater treatment facilities, can be achieved very cost-
effectively.
The Administration also recognizes that regional, state, and local differences exist
regarding water quality, quantity, and usage. These differences favor a prudent
approach in which water efficiency programs are tailored for specific locales.
S. 1114 proposes to promote water conservation by coordinating federal policies,
providing technical assistance to public agencies, and establishing a national
information clearinghouse.
RECOMMENDATIONS:
To promote efficient water use, the federal government's primary role should be to
provide technical assistance and information, including the following activities:
> Foster research and development of new and improved methods to achieve
water use efficiency.
> Identify, develop, and demonstrate innovative technologies and techniques used
to achieve water use efficiency.
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Promote integrated resource planning for future water needs that incorporates
demand management, fully addresses surface water and ground water needs
and environmental impacts, and allows participation by all affected parties.
Support the establishment of a national clearinghouse of information on
efficient water use.
Provide technical assistance to all water use sectors to evaluate and implement
water efficiency programs.
Advocate beneficial water reuse and wastewater reclamation, especially in the
arid and semi-arid regions of the country, consistent with public health and
environmental standards.
Promote the use of SRF for development and implementation of water use
efficiency activities.
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MARKET-BASED APPROACHES
ISSUE:
How should other market-based incentives be encouraged and implemented in the
reauthorized CWA to reduce pollution?
BACKGROUND:
Federal policy for controlling water pollution for the most part has not relied on
economic incentives. The Administration's proposal for the 1994 reauthorization of
the CWA endorses programs for trading water pollution reduction credits because
such programs can potentially reduce the cost of meeting water quality or loadings
reduction goals. However, other potentially promising incentive approaches,
particularly the use of fertilizer taxes to reduce agricultural loadings of nitrogen and
phosphorus, are also potential ways of harnessing market incentives to realize cost-
effective pollutant reductions,,
RECOMMENDATIONS:
> EPA should undertake a study of the feasibility, implementability, and cost-
effectiveness of fertilizer taxes, taxes on the discharge of harmful pollutants,
and other promising market-oriented incentive approaches in comparison to
approaches mandated or encouraged by the CWA.
> EPA should submit this report, together with recommendations on the future
use of such incentive approaches, to Congress and interested states within
three years of enactment.
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BENEFITS AND COSTS OF
THE REAUTHORIZED CLEAN WATER ACT
ISSUE:
How should the CWA provisions be evaluated for their cost effectiveness in achieving
environmental goals?
BACKGROUND:
The CWA has achieved significant improvements in water quality over the last twenty
years. The reauthorized Act will do even more.
Nevertheless, the solution to these environmental problems is more difficult today
given the number and variety of pollutant sources and other conditions that affect
water systems. For example, reduced levels of a fish population in a river could be
due to a combination of factors including land development in riparian zones, low level
of toxic contaminants from both urban and agricultural runoff, and siltation from urban
development and agriculture. Mandated controls on some or all of these activities
may improve water quality but by an uncertain amount. This makes it difficult for the
Administration to identify and quantify specific future controls that result in a
quantifiable improvement in water resource quality.
In order to improve the ability of the Administration to evaluate the effect of the
reauthorized Act, to identify and project the affect of future controls on activities on
water quality, and to develop cost-effective approaches for realizing environmental
goals, additional information collection and analysis methods will be needed. For
example, the Administration will need information to comprehensively assess water
quality in sufficient number of waters over time in order to determine water quality
trends in response to new controls on storm water and combined sewer overflows.
This type of information collection and analysis is not without precedent. Congress
directed EPA in the Clean Air Act Amendments of 1990, Section 812, to perform a
comprehensive analysis of the impact of the 1990 amendments with respect to
improvements in air quality. A similar assessment would be beneficial for the CWA.
RECOMMENDATIONS:
* The Administrator of the EPA, in consultation with other agencies, as
appropriate, should conduct a comprehensive analysis of the impact of the
1994 CWA amendments on the public health, economy, and environment of
the United States. In performing such analysis, the Administrator should
consider the incremental costs, incremental benefits, and other incremental
effects associated with various major elements of the reauthorized Act such as
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municipal and industrial storm water controls, agricultural runoff controls, etc.
This analysis should also include, to the extent practicable, a quantitative
analysis of current (baseline) water quality conditions in U.S. waters to serve
as the launching point for the benefit-cost analysis. It should also include an
assessment of the reliability of techniques and existing estimates of the
benefits of water quality improvements.
As part of the effort to improve benefit measurement, the Administrator should
review, evaluate, and where appropriate, improve current protocols for the
collection, processing, interpretation and use of data describing water quality
and health and environmental effects related to water quality. In particular, the
Administrator should seek further to improve the State section 305{b) water
quality inventory reports so as to permit a more meaningful comparison
between different regions and baselines. One goal of this effort is to be in a
better position than today to Describe quantitatively the benefits and costs of
this Act and future amendments to this Act as a means of improving the cost-
effectiveness of programs to improve water quality. Another goal of this effort
is to make data available to researchers outside of the government to evaluate
the success of this Act and to help improve upon it.
As a companion to the comprehensive inventory of water quality proposed for
section 305(c), EPA should submit a report to Congress that summarizes its
comprehensive analysis, reporting current baseline water quality conditions, the
amount such conditions have changed as a result of the Act and all benefits
and costs (and other effects) accrued and expected to be accrued as a result
of the Act. The report should also contain a review and evaluation of the water
quality data used for the analysis and plans for the improvement of data
collection, processing, and modeling protocols; and a review and evaluation of
the methods used to analyze such data and estimate health and environmental
benefits and plans for the improvement of such methods.
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