Problems and Approaches
to
Areawide Water Quality Management
A Report Published
By the School of Public and Environmental Affairs,
Indiana University, Bloomington, Indiana 47 101
for the
Water Planning Division
Environmental Protection Agency
October 1973
Contract Number 68-01-0199
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Problems and Approaches
to
Areawide Water Quality Management
by
School of Public and Environmental Affairs
Indiana University
for the
Water Planning Division
Environmental Protection Agency
Contract Number 68-01-0199
October 1973
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EPA Review Notice
This report has been reviewed by the Environmental
Protection Agency and approved for publication.
Approval does not signify that the contents necessarily
reflect the views and policies of the Environmental
Protection Agency, nor does mention of trade names or
commercial products constitute endorsement or recommenda-
tion for use.
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ABSTRACT
This report delineates some of the legal and management prob-
lems which emerged from a legal and administrative review of
the implementation of §208(c)(2) and its relationship with
§208(b) (2) (C) of the Federal Water Pollution Control Act of
1972 (Act). The study on which the report is based is the
result of a fifteen (15) month effort that included a review
and analysis of state laws in the U.S. and an assessment of
a selected sample of wastewater management organizations of
varying areal jurisdictions. The study consists of a main
report with two appendices separately bound plus an executive
summary.
The review and analysis of the laws of the fifty states
focused on (a) whether the organizations empowered to manage
wastewater treatment facilities currently have adequate
authority to qualify for federal assistance under the Act
and (b) the authority to implement the organizational arrange-
ments and policies described in Sections V and VI of the
report.
A selected group of existing management organizations were
examined as a means of (a) identifying and describing prob-
lems that may emerge in establishing wastewater management
agencies in accordance with the provisions of the Act, and
(b) developing alternative management models capable of
satisfying the performance criteria developed in this report.
The primary focus of §208(b)(2)(C) is on two innovations in
wastewater management: (1) adequate authority to manage
wastewater activities on an areawide basis significantly
broader than those currently operating, and (2) capability
and authority to undertake water quality planning and manage-
ment through control over point and nonpoint pollution sources
and the control of the location of wastewater treatment facil-
ities and other discharge sources.
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CONTENTS
Section Page
I Conclusions 1
II Recommendations 9
III Introduction 15
Purpose and Scope 15
Background 16
Characteristics of the Act 18
Requirements of the Act 22
The Areawide Sequence 22
Section 303 22
Section 201 23
Section 208 23
Planning: §208(b) 24
Management: §208(c)(2) 26
Particular Projects 27
Report Summary 29
Section IV 29
Section V 29
Section VI 30
Section VII 30
Section VIII 30
Research Method 31
Legal Studies 31
Management Studies 33
Research Concepts 34
The Water Management System 34
Evaluating Water Management
Systems 36
Definitions 37
Notes 40
IV Analysis of Legal Problem Areas of
Waste Treatment Management Agencies
in Complying with §208(c) (2) of the Act 41
Introduction 41
General Legal Concepts to Bear in Mind 42
Prevalent Legal Constraints and Problems 44
Authority to Carry Out Areawide Plan --
§208(c) (2) (A) 45
Authority to Manage Effectively Waste
Treatment Works — §208(c) (2) (B) 46
Authority to Construct and Operate
Treatment Works Required by the
Areawide Plan -- § 208 (c) (2) (C) 47
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Section Page
Authority to Accept and Utilize Grants
from Any Source — §208(c)(2)(D) 48
Authority to Raise Revenues, Includ-
ing the Assessment of Waste
Treatment Charges -- §208 (c) (2) (E) 49
Authority to Incur Short- and Long-Term
Indebtedness — § 208 (c) (2) (F) 53
Authority to Assure that Each Partici-
pating Community Pays Its Proportion-
ate Share of Treatment Costs --
§208(c) (2) (G) 55
Authority to Refuse to Receive Any
Wastes From Any Municipality Which
Does Not Comply With The Areawide
Plan -- §208(c) (2) (H) 57
Authority to Accept for Treatment
Industrial Wastes — § 208 (c) (2) (I) 60
Summary 61
Notes 64
V Review of Management Problem Areas of Selected
Water Quality Management Agencies in Complying
with §208(c)(2) of the Act 67
Federal Policy Perspective 67
Background - The Areawide Approach 76
Review of Selected Water Management Agencies 78
Problem Identification 82
Summary of Findings 83
Special Problems: Financing Treatment
Facilities 85
Summary 89
Notes 91
VI Institutional Models for Areawide Water
Quality Management 93
Introduction 93
Information Generation 93
Representation 94
Efficiency 95
Effectiveness 95
Water Quality Management Models 95
Areawide Model 98
Functions 98
Formal Organization 98
Administrative Processes 99
Political Responsiveness 101
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Section
Basinwide Model 103
Functions 103
Formal Organization 103
Administrative Processes 104
Political Responsiveness 107
Regionalized State Model 109
Functions 109
Formal Organization HO
Administrative Processes HI
Political Responsiveness 113
Summary 117
Notes 120
VII Analysis of Legal Problems of Implementing
Institutional Models for Water Quality
Management -123
Areawide Model 124
Basinwide Model 126
Regionalized State Model 127
Summary 128
VIII Regulatory Mechanisms: A Perspective 129
Introduction 129
Land Use Controls 131
Permits and Licenses 135
Standards 142
Pricing Mechanisms 146
Miscellaneous Regulatory Mechanisms 150
Notes 152
IX Acknowledgements 157
X References 159
Selected References 169
Water Quality Management 169
Planning 169
Economic Incentives and Finance 170
Enabling Legislation 170
Performance Assessment 171
XI Glossary 173
Appendices (Note: Published as separate volumes)
Appendix A: Model Legislation
Appendix B: States' Reports
Executive Summary (Note: Published as separate volume)
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FIGURES
Paqe
V-l ANALYSIS OF AREAWIDE WASTEWATER
MANAGEMENT AGENCIES 81
VI-1 WATER QUALITY MANAGEMENT 97
VI-2 AREAWIDE MODEL 100
VI-3 BASINWIDE MODEL 105
VI-4 REGIONALIZED STATE MODEL 118
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TABLES
No. Page
V-l Key Federal Water Pollution Control Program 68
V-2 Methods for Improving the Quality of
Receiving Waters 74
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SECTION I
CONCLUSIONS
This report deals with the issue of the adequate authority
of designated waste treatment management agencies to perform
as required by §208(c)(2) and related sections of the Federal
Water Pollution Control Act Amendments of 1972 (Act). "Ade-
quate authority" includes both the legal authority and the
management capability of the agencies. From a legal analysis
of the laws of the fifty states and of federal legislation,
and from a survey of existing waste treatment management
agencies, the Study reached the following conclusions.
GENERAL CONCLUSIONS
1. Planning; A Continuing Process
In any area, effective management of water quality means inte-
grating the planning process with such program implementation
activities as design and construction, operations, and perfor-
mance assessment. Planning may be a separate process, but it
cannot be conducted in a vacuum -- it must have ongoing input
from all other activities comprising the water quality program,
and it does not end when design or construction begins. Looked
at the other way round, the later stages of water quality con-
trol (such as operations, regulation, and performance assess-
ment) should be incorporated in the planning process from the
very beginning. In sum, good planning is a continuing process.
2, Planning;^ The Use of Existing Agencies
While the use of existing agencies to perform the required
functions of the areawide plan has distinct advantages, too
much fragmentation of effort over too many agencies can cause
problems in securing cooperation and assessing responsibility.
3. Planning: Policy Alternatives
Under the terms of the act, planners of water quality control
are not faced with just choices about physical or structural
alternatives for wastewater treatment. They are required
also to examine policy alternatives which will affect the
quantity and quality of wastdwater. For example, they may
recommend alterations in building codes so that new residen-
tial waterclosets use much less water by volume; or they may
consider using the price mechanism as a means of changing
behavior through full cost recovery user charges.
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4. Planning: Cost Effectiveness
The Act emphasizes not only examining a wider range of alter-
native treatment strategies but also selecting from them on
a cost-effectiveness basis. This criterion is a strong
indication that the intent of Congress is to urge consider-
ation of other methods than waste treatment plants as a means
of achieving water quality.
5. Planning: Land Use
Planning for the improvement of water quality is inseparable
from planning for land use. The availability of water quality
improvement services (whether existing or proposed) is a
crucial determinant of the nature and location of land devel-
opment. Conversely, the pattern of land development crucially
affects the costs of managing water quality. Under the terms
of the Act, therefore, planners of water quality control must
develop some positive and effective relationship with planners
of land use. To date, environmental and water quality consi-
derations have little influenced the planning of land use.
6. Management: Waste Treatment Strategies
The new Act significantly increases the number of treatment
strategies which are eligible for federal funds. Since 1956,
the construction of more and larger treatment plants has been
the main method o'f achieving the objectives of federal water
pollution control legislation. This "end-of-pipe" philosophy
ignores the advantages of many other approaches, and the Act
requires that it cease to be the only method examined by
planners. Examining such alternative strategies as process
changes, changes in raw materials, and by-product recover and
production will lead to implementing ways of affecting the
quantity and quality of wastewater generated, while in-stream
re-aeration and low-flow augmentation are useful in reducing
the need for costly treatment facilities.
However, while such alternative strategies as process changes,
materials recovery, and by-product production aimed at achieving
desired levels of ambient water quality are eligible under the
Act for federal assistance, these strategies must be carefully
assessed to avoid such unanticipated results as public sub-
sidies for private technological development.
7. Management: Legal Basis
At present, the laws of many states do not provide the basis
for an integrated approach to water quality management as
required by the Act. Recent legislation in some states,
however, indicates a trend toward the required integration of
activities; i.e., an areawide or regionalized approach to water
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quality control. In all states the present statutory basis
for a waste treatment agency having "adequate authority" as
required by the Act should be examined to determine whether
new legislation is necessary.
_8._ Management: Alternative Models
Any intended organization for waste treatment management must
be flexible enough to adapt to extensive variations in state
law and local needs and customs. There are at least three
model waste treatment management organizations - areawide,
basinwide, and regionalized state - that offer the appropriate
flexibility.
9. Management: The Price Mechanism
In addition to recovering treatment costs, the price mech-
anism can effectively bring about a reduction in wastewater
discharges. In many situations it is more effective than
enforcement. The price mechanism is among the alternative
strategies to be considered under the terms of the Act.
3.0. Management: Control Issues
Problems may arise with respect to authority to control water
quality because of the political boundaries of existing enti-
ties which may be designated as planning and/or management
agencies. These problems will arise primarily from the
limited responsibilities assigned to such agencies under
present laws. Although §208(b) requires the areawide manage-
ment plan to provide a process for identifying and control-
ling nonpoint sources of pollution, the Act does not identify
or limit the methods of control which will satisfy this
requirement.
11. Regulation
There is a variety of regulatory tools which are appropriate
for managing water quality. Among them are: (a) land use
controls; (b) permits and licensing; (c) standards; (d) pric-
ing mechanisms; (e) persuasion; (f) traditional enforcement
procedures; and (g) the purchasing power of government. The
usefulness of any one or combination of these tools depends
upon the particular problem area. In general, the operations
of the marketplace are at least as effective as direct govern-
ment intervention.
12. Performance Assessment
Government should delineate and disseminate explicit criteria
for assessing the performance of planning and management enti-
ties. These criteria should evolve from a series of dialogues
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between assessors and performers. In an endeavor of this
magnitude, success could depend on everyone knowing, under-
standing, and agreeing to the same set of rules before work
starts. Further, everyone (including the performers) should
be privy to the process of changing the rules later.
Government should also equip itself with the capability for
achieving performance assessment. An apt analogy is that of
money audits. The same capability for performance audits is
required of government.
13. Public Participation
The Act's criteria for insuring public participation in water
quality control decisions cannot be met in practice simply by
appointing elected officials to policy boards. The manner in
which these criteria may be defined and implemented therefore
must still be carefully studied. Further, the ways in which
an areawide plan may be developed to reflect local social
preferences and larger interests (i.e., from beyond the local
area) have yet to be identified.
14. Personnel Resources
Several states and major metropolitan governments have created
enough personnel resources in planning and management to enable
them to begin implementing the requirements of §208(c) (2) of
the Act. However, most states and local governments lack
enough trained personnel. This lack may be significantly
remedied by use of planning and training grants, as well as
by increased federal EPA technical assistance.
There is a particular lack in present state and local agencies
of the necessary personnel and capability for performance
assessment.
A vital role in determining the effectiveness of an area's
management agency is the personal quality of its chief admin-
istrative officer: his experience, knowledge, administrative
ability, and especially his open-mindedness .
15. Intraregional Disagreements
Regionalization or areawide planning always has the potential
for creating conflicts of judgment -- honest differences of
opinion -- as to the best courses to follow. These disagree-
ments mainly concern the distribution of powers and duties
from both a geographical and a functional point of view.
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CONCLUSIONS ABOUT §208(c)(2)
1. §208(c) (2) (A)
Few existing management agencies established by state and
local laws have adeauate authority to perform all the func-
tions required of a waste treatment management agency as set
forth in §208(c) (2) and related sections of the Act. In most
states, however, there are two or more agencies with juris-
diction in the same geographical area which collectively
could meet the reauirements of §208(c) (2); i.e., could perform
one or more of the "appropriate portions" of the areawide plan.
Therefore, if the areawide plan adopted pursuant to §208 (b)
assigns or delegates performance of such "appropriate portions"
to the one or more agencies with the legal capacity and demon-
strated capability to perform such within the area, the
requirements of §208(c) (2) (A) can be met in these states
without new or amendatory legislation.
2. §208(c) (2) (B)
In order to assess the adequate authority of waste treatment
management agency (agencies) to "manage effectively waste
treatment works and related facilities" as required by
§204(c) (2) (B) , both the legal capacity and management capa-
bility of the management agency (agencies) should be consid-
ered; therefore, such assessment cannot be made, and it
cannot be determined whether the agency (agencies) meet the
requirements of § 20 8 (c) (2) (B) and the requirements of
§204 (b) (1) (C) , until the areawide plan is adopted and the
functions of the agency (agencies) are set forth therein.
3_. _ §208(c) (2) (C)
Most waste treatment management agencies have adequate
authority to design, construct and operate waste treatment
works as required by §208 (c) (2) (C) , including the broad
meaning of "treatment works" as defined in §212(2) . The
emphasis, however, so far has been on a single option --
conventional treatment plants .
4. §208(c) (2) (D)
Most waste treatment management agencies have adequate
authority to accept and utilize grants, or other funds from
any source, for waste treatment management purposes as
required by §208 (c) (2) (D) of the Act.
5. §208(c) (2) (E)
Most waste treatment management agencies as operating agencies
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have adequate authority to raise revenues and assess waste
treatment charges as required by §208(c)(2)(E) of the Act.
a. In many states, however, although there is the legal
capacity so to charge, the existing systems of charges
utilized by such agencies do not meet the additional
requirements that such charges result in each cate-
gory of user paying its proportionate share of the
cost of operation and maintenance as required by
§204(b) (1) (A) .
b. In most states, however, not only do existing systems
of charges fail to meet, but there is no express
statutory authority to enable the agency (agencies)
to meet the requirement that industrial users repay
the federally funded portion of construction costs
as attributed to treating industrial wastes as re-
quired by §204 (b) (1) (B) .
c. In addition, in large urban-industrial areas with
many industries discharging into the system, the
securing of firm and binding commitments from each
industry to pay its share of the federal portion of
construction costs as required by §204(b)(1)(B) pre-
sents substantial implementation problems. This in
turn affects the implementation of §208(c) (2) (E) .
6. §208(c) (2) (F)
Most waste treatment management agencies have adequate author-
ity to incur both short- and long-term indebtedness as required
by §208(c) (2) (F) , although certain approval or procedures are
required under state laws.
7. §208(c) (2) (G)
Under most state laws, waste treatment management agencies
do not have express statutory authority to assure that each
participating community (municipality) pay its proportionate
share of treatment costs as reauired by §208(c)(2)(G) of the
Act. Most states do, however, permit contracting for ser-
vices by and among communities, and such contracts usually
provide for sharing treatment costs.
8. §208(c) (2) (H)
One of the most prevalent problems is the inability or lack
of authority of any agency within an area to comply with
§208(c) (2) (H) of the Act, which requires that the waste treat-
ment management agency have adequate authority "to refuse to
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receive any wastes from any municipality or subdivision there-
of, which does not comply with any provisions of an approved
areawide plan."
9 . §208(c) (2) (I)
Most waste treatment management agencies have adequate author-
ity to accept for treatment industrial wastes as required by
§208(c) (2) (I) of the Act, and, in addition, most waste treat-
ment management agencies have authority to establish pretreat-
ment standards and to refuse industrial wastes which do not
comply therewith or which would interfere with the operation
of the treatment works .
10. §208(c) (2) - General
Where an areawide plan encompasses several municipalities or
waste treatment management agencies, the noncompliance (non-
cooperation) with the areawide plan by one or more of the
municipalities or agencies may be difficult to rectify if
such noncomplying agency or community is not violating
effluent or water quality standards.
CONCLUSIONS ABOUT §208(b) (2) (C)
1. §208(c) (2) (C)
Few states currently permit waste treatment management agencies
to regulate the location, modification and construction of
facilities, other than publicly owned treatment works, which
result in any discharge of pollutants to waters in the area.
2^ _ §208(b) (2) (C)
Most states have sufficient legislation to implement a wide
variety of regulatory tools such as permits and licensing,
standards, pricing mechanisms, and traditional enforcement
procedures including fines and penalties.
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SECTION II
RECOMMENDATIONS
GENERAL RECOMMENDATIONS
1. Planning: Strategies
The planning process should consider a wider range of alter-
native and complementary strategies to achieve water quality.
Among these strategies should be the following:
• land use controls
• permit systems
• differentiated user charges
• prohibitions
• in-plant process changes
• by-product production
• materials recovery
• use of assimilative capacity.
2. Planning: Public Participation
Planning entities should use the provisions of the Act to
ensure that all interested parties receive adequate infor-
mation about alternative strategies and their consequences.
The public being served, as well as the waste treatment man-
agement agencies and the policy-makers, should be kept in-
formed.
3. Planning: Local Government Participation
Because any areawide plan will fundamentally affect develop-
ment within an area, it should be formulated by local govern-
ments and their constituents. This will help both to over-
come local apprehension about any loss of autonomy as a con-
sequence of areawide management, and to facilitate adoption
and implementation of the areawide plan. The plan must not
merely be "announced" or "given" to a local area.
4. Planning: Policy Boards
The provisions of the Act requiring appropriate representation
in areawide planning should be so implemented that elected
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representatives of local general purpose governments comprise
a substantial portion of the membership of policy boards.
5. Planning: Federal Role
The rules and regulations to be promulgated by EPA should con-
tain an explicit statement that under §201(g) (2) (A) federal
assistance will be available to support a wide range of alter-
native strategies aimed at achieving desired levels of ambient
water quality at least cost. Such activities as resource
utilization charges, materials recovery, and by-product pro-
duction could be eligible for federal assistance.
6. Management: User Charges
In addition to recovering the direct costs of treatment, man-
agement entities should adopt user charges to recover the
costs of management activities (such as planning, monitoring,
operation of facilities, administration, and technical assis-
tance provided within the service area).
7. Management: Economic Incentives
Both EPA and areawide agencies should consider using such eco-
nomic incentives as full cost recovery user charges to influence:
« point source dishcarges (public-owned facilities,
industrial and commercial establishments, etc.)
® non-point source discharges (construction runoff, ag-
ricultural runoff, stormwater runoff, etc.)
8. Management: Integration with Related Activities
EPA, state agencies, and waste treatment management agencies
should seek eventual integration of the management of water
quality with the management of solid and gaseous residuals,
at both state and local levels.
9, Management: Federal Role
Through creative administration of the provisions of §208(c)(2),
EPA should encourage and strengthen the programs of existing
entities — whether local, areawide, or state — which already
have the authority to plan, design, construct, and operate
facilities and to apply non-structural measures.
10. Regulation: Useful Mechanisms
The state and areawide agencies should consider a full range
of regulating tools, or combinations thereof, including
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(a) land use controls; (b) permits and licensing; (c) stan-
dards; (d) pricing mechanism; (e) persuasion; (f) traditional
enforcement procedures; and (g) their purchasing power,
11. Performance Assessment: Federal Role
In addition to a procedural checklist, the EPA should de-
velop and implement a performance assessment capability
focusing on the ability of water quality management agencies
to perform as required.
12. Performance Assessment: State Role
Each state should also develop and implement a performance
assessment capability. This capability, however, should
focus on evaluating the programs of regional authorities,
sanitary districts, municipalities, and other intrastate
operating agencies with the responsibility for improving
water quality.
RECOMMENDATIONS ABOUT §208(c)(2)
1. §208(c)(2)(A)
To facilitate compliance with § 208(c) (2) (A) , the §208(b)
areawide plan should assign or delegate implementation of
"appropriate portions" of the plan to existing; waste treat-
ment management agencies that have the legal capacity and
demonstrated management capability to perform such assigned
portion (portions) -- provided, however, that such delegation
does not result in excessive fragmentation. "Appropriate
portions" has both functional and geographical implicacions,
2. §208(c)(2)(B)
Federal and state authorities should define the term "manage
effectively" in this section so as to evaluate the capabilities
of management agencies to perform, rather than focusing on
the procedural aspects required to be eligible for a grant
under the Act. Management agencies should be given time
enough to demonstrate their ability to perform,
3. §208(c) (2) (C)
State authorities should emphasize the broader meaning of
"treatment works" when enacting new legislation about a waste
treatment management agency's authority to design, construct,
and operate waste treatment works as required by this Section,,
States and management agencies should take advantage of this
broader meaning when determining the type of project for
which a grant will be sought,
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4. §208(c)(2)(D)
Most waste treatment management agencies have adequate au-
thority to accept and utilize grants as required by this Sec-
tion, However, in cases where an intermediate agency is to
receive the grants for distribution to a waste treatment man-
agement agency, the states should provide (if they have not
already done so) that such federal grants can be used only for
the specific pfoject for which the grant was made.
S_, 3208 (c) (2) (E)
Although most waste treatment management agencies have au-
thority to raise revenues and assess waste treatment charges,
a. such agencies must devise user charge systems and
methods which insure that each category of user pays
its proportionate share of costs so as to comply with
§204 (b) (1) (A) . These charge systems and methods
should be based on the characteristics of the user's
discharge. These characteristics include volume,
delivery flow rate (timing of discharge), and com-
position of the effluent (e.g., biochemical oxygen
demand, suspended solids, toxic substances); and
b. to meet the requirements of §204(b)(1)(B), the states
should enact legislation expressly authorizing re~
co\/ery from industrial users of the federally funded
portion of construction costs attributed to treating
industrial wastes; and
c „ to recover these costs from industrial users, each
major contributor of industrial wastes into the
system should be required to give firm commitments
to pay its share. "Major" is determined by the im-
pact of the characteristics of the industry's dis-
charge into the system. For less than major con-
tributors, a charge system should be devised so as
to recover costs from them as a class. Agreements
by an industry to repay costs should be transferrable
to a new or different industry to permit the latter
to discharge into the system.
6. §208(c) (2) (F)
Since most waste treatment agencies have adequate authority
to incur short- and long-term indebtedness as required by this
Section, the applicant agency should make certain of ap-
proval from all elected and administrative entities and should
ensure that all procedures required by state and local laws
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have been followed. This is to ensure that the funding is
not contingent upon securing such approval.
7. §208(c)(2)(G)
To comply with this Section, many states should enact specific
statutory authority requiring that each participating com-
munity pay its share of treatment costs. In all cases, the
areawide plan should make the same requirement,
a. In the case of interlocal agreements, the propor-
tionate shares of each participating community
should be openly and freely agreed upon and made
part of the general agreement.
8. §208(c)(2)(H)
It is highly unlikely that an operating agency would cut off
sewer service to a municipality or subdivision thereof which
does not comply with any provision of the areawide plan as
provided in this Section. State laws, therefore, should au-
thorize waste treatment management agencies to deny service
to any new users within the noncomplying municipality
or subdivision, and/or to assess penalties against it which
would assure compliance within a reasonable time. Such laws
should include adequate notice or warning periods to permit
voluntary compliance.
9. §208(c) (2) (I)
In the case of treatment of industrial wastes, as provided
in this Section, waste treatment management agencies (or
state laws or regulations) should establish pretreatment
standards for industrial pollutants which, if not pretreated,
either would not be susceptible to treatment by the treat-
ment plants or would interfere with the operation of the
treatment plants. The waste treatment management agency
should also make provision to control and assist in the dis-
position of waste which treatment plants cannot accept.
10. §208(c)(2) -- General
To overcome problems of the noncompliance (non-cooperation)
of communities within the area encompassed by an areawide
plan, an areawide agency or a state agency should have the
power either (i) to require compliance from all municipali-
ties and agencies encompassed by the areawide plan or
(ii) to take over all or part of the functions of the non-
complying community and perform in accordance with the area-
wide plan.
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a. As an alternative or supplement, the permit system
and grant system of the state should be used to in-
fluence noncomplying communities.
BECOMMENDATIONS ABOUT § 208(b) (2) (C)
(2) (C)
['lie states should enact legislation requiring that areawide
planning agencies and/or waste treatment management agencies
ii've enough input into land use planning so as to influence
; .a control) the location of facilities discharging pollutants
.into
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SECTION III
INTRODUCTION
Purpose and Scope
The subject of this report is areawide management of waste--
water treatment. The report deals with certain sections of
the Federal Water Pollution Control Act Amendments of 1972,
henceforth referred to as the Act. It is written for all
personnel who will have responsibility for implementing that
Act: local, state, and federal. It is meant for use by
people with different skills, backgrounds, and jobs: plan-
ners, managers, elected or appointed officials, engineers,
lawyers, and others concerned with the practical problems of
water quality management. The Act contains many implications,
both important and new to the improvement of water quality.
On one hand, it sets out requirements for federally-funded
projects and the methods for meeting those requirements; on
the other hand, it offers opportunities for innovation and
imagination which may have major effects during the coming
years. This report identifies some of the problems, the re-
quirements, and the opportunities offered by certain impor-
tant sections of the Act.
The report focuses on §208 (c) (2) of the Act and related sec-
tions, particularly as they affect state and community ac-
tions. §208(c)(2) addresses specific problems of wastewater
management. It sets forth the capacities and capabilities
("adequate authority") which waste treatment management
agencies must have in order to be accepted by the Administra-
tor of the United States Environmental Protection Agency as
eligible for federal grants for the construction of treatment
works. Related sections of the Act covered in this report
deal with the planning and regulatory aspects of Title II.
Other provisions of the Act deal with funding for planning,
required state and areawide planning, standard setting, en-
forcement, permit systems, etc. The particular importance
of §208 (c) (2), and the reason for its selection as the subject
of a special study, is that it deals with the nature, oper-
ations, and requirements of agencies that will make applicatici
for construction grants. Its significance to local and area-
wide agencies is, therefore, of primary importance.
The thrust of the research was in two directions: the legal
authority of present wastewater management entities; and the
management structure and framework of wastewater managemeni.
agencies present and future. By analysis of the laws of the
50 states, the study focused on whether those entities cur-
rently empowered to perform wastewater management functions
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have adequate legal authority both to perform as required
under the new Act and to implement possible new management
arrangements. Then, by examining a group of existing man-
agement arrangements, the study set out to describe problems
which may emerge in establishing management agencies in ac-
cordance- with the Act, and also to delineate satisfactory
alternative management frameworks (or models). The study,
therefore, focused on both the legal and the practical prob-
lems of setting up a management structure for water quality
control, especially as concerns planning.
The study was conducted by a multidisciplinary team in-
cluding both legal experts and personnel with extensive op-
erational experience. Statutes were surveyed and informa-
tion was collected from Regional EPA offices. In addition,
the contents of the study were determined by extensive con-
versations with both federal government personnel and per-
sons in the field who presently operate water management
agencies. Though these contacts were by no means exhaustive,
enough information came from a wide enough variety of sources
to make the study broadly inclusive in coverage. A detailed
description of the study's methodology appears later in this
section.
Background
The Act differs in many important ways from its predecessors.
It is both more detailed in requirements, and more flexible
in solutions -- a freshly energetic attempt to help states
and communities solve the problems of water quality control.
Between 1956 and 1972, federal legislation has emphasized
essentially two approaches: the construction of treatment
plants, and the enforcement of laws against water pollution.
The Act, though by no means ignoring these approaches, adds
other methods and concepts which offer a much wider range of
^1^ernatives to states and communities. The exact nature of
these methods and concepts needs still to be specified and
can only really be specified as the Act's provisions go into
realworld operation. Problems and their implications under
the Act need to be identified through cooperation between
personnel at all levels of government, including especially
operational personnel faced with the daily problems of water
quality management. This cooperative process will take time
and goodwill -- both of which fortunately seem available.
The Act places considerable emphasis on the need for a plan-
ning process in water quality management over a variety of
geographic and political units, and this report concentrates
en the section of the Act which deals specifically with area-
v.'ide planning: §208. The words "areawide planning" should
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not be lightly dismissed, since Congress, recognizing that
many previous efforts at improving water quality have failed
because they were short-term or geographically uncoordinated,
has deliberately created in this Act the time and structure
for local and state governments to work together and with the
Federal government. Geographical and political units now have
the method and funds to cooperate in a systematic and enduring
fashion, instead of devising short-term or entirely local
methods of control which subsequently do not work satisfac-
torily. Instead of waiting until the operational stage to
find out that some action does not enhance water quality, com-
munities can now discover their problems and fight their bat-
tles at the planning state. All viewpoints, including those
of the public, can be deliberately incorporated into the
planning effort. And the control of water quality within an
area -- instead of being isolated as simply a matter of
building more treatment works -- can now be integrated with
the whole environmental, political, and economic life of a
community.
The importance of the term "areawide planning" to those con-
cerned with water quality management is clear in seven basic
issues which this report has found necessary to emphasize be-
cause of the requirements and implications of §208 (c) (2).
At local, state, and federal levels, planners will need to
consider the following issues:
1. The linkages between the management of wastewater and
the management of other residuals (whether solids,
gases or energy).
2. The linkages between the management of wastewater,
and the management of water supply and other water-
oriented activities.
3. The entire range of methods for controlling the quan-
tity and quality of water before and after generation
and before discharge to a receiving stream as waste,
rather than just conventional "treatment works."
4. Linkages between any water quality management agency
and the authority over land use possessed by govern-
ments of general jurisdiction.
5. The legal and practical relationships between govern-
ments of general jurisdiction and any agency with a
single or special function.
6. The question of representation in decisions about
water quality contol: what does ''representation"
mean? who should be represented, and how?
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7. The issues of institutionalized flexibility: how does
one create a water management agency, which will endure
and at the same time easily adjust to dynamic changes
as the needs of the area require?
Many of these matters are clearly issues of policy. Although
the study which gave rise to this report concentrated on prag-
matic legal and management problems in the management of water
quality, the researchers found -- as will future planners --
that policy must be a constant determinant of practical actions
in this subject-area. Policies about public issues are deter-
mined by value-systems; there is almost no objective basis for
determining what constitutes the "best" policy with regard to
a public issue. In this report, however, some consistent at-
tempt was made to evaluate policy in an objective manner by
four criteria: representation, information generation, eco-
nomic efficiency, and effectiveness. These criteria are dis-
cussed more fully later in this section. They do not allow
evaluation of great accuracy, but they can lead in the direction
of objectivity. For instance, in this report economic effi-
ciency has been measured through conventional economic analysis.
The report regards as questionable policies which tend to be
economically inefficient or those which tend to redistribute
income from lower-income groups to higher-income groups. As
another example, the report regards time as a valid measure of
effectiveness. The extent to which a given policy objective
can be achieved within a reasonable time is a measure of that
policy's effectiveness.
Thus, although the issues of water quality control can be
rendered highly technical and narrowly practical, they also
have broadly human implications. The use, and misuse, of the
nation's water supply affects, and is affected by, all our
value systems: economic, political, recreational, personal,
e-:.c. In the Act the Federal government has attempted to give
communities the opportunity to face these practical and value-
system problems in a thorough and systematic manner.' The fol-
lowing report indicates, to those planning water quality im-
provement programs, some of the problems in law, management,
and behavior they will face, and it suggests the main lines by
which areawide planning may operate to solve those problems.
ics of the Act
Some characteristics of the Act need special mention to place
tlva-to report's discussions in proper perspective.
1. The Act is much more detailed than its predecessors.
it establishes goals which are to be met nationwide.
It assigns responsibilitv to the federal qovernment
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for implementation and for authorizing the appropri-
ation of funds. It also establishes detailed program
plans which statewide and areawide governments and
agencies are to follow. §§204 and 208 are good ex-
amples of the detail newly required in areawide
plans and management. §303 (e) is an example of the
detail similarly required in statewide planning.
2. The Act continues earlier attempts to achieve water
quality by coupling financial assistance with enforce-
ment provisions, but with important variations. The
level of federal financial assistance has substan-
tially increased, and it now appears to include sup-
port for programs other than conventional treatment
works (particularly under §208). As a focus for en-
forcement, the Act uses effluent limitation stan-
dards and a permit system, in addition to water
quality standards. Though federal construction
grants remain linked with standards enforcement as
the basic approach, variations on this basic theme
have come into being. For instance, there are now
provisions which require systems to be self-
supporting through charges to all users, and to be
capable of achieving water quality in a more cost-
effective manner than by any other option. If ef-
fectively implemented, these two provisions will pro-
vide water quality at the expense of the user and at
the least overall cost.
3. The standards for securing federal grants for a
project introduce some new concepts concerning
planning, cost effectiveness, and method of op-
eration. For example,
• The project must have emerged from a planning
process in which explicit consideration was
given a wide range of alternatives.
•The plan of which the project is a part must
have been selected through a representative
process.
•The proposed system or project must be cost
effective.
•The proposed system or project must be capable
of generating adequate revenue through charges
to all user categories to sustain a self-
supporting program.
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®The proposed system must meet water quality
standards and any applicable effluent limita-
tion standards.
Such concepts reinforce the integration of planning
with operations, and they encourage the study of
non-conventional alternatives.
4. Of special relevance to this report, the Act em-
phasizes areawide or regionalized planning. This
continues the trend in federal regulations and
legislation toward requiring cooperation in water
quality management between units of local govern-
ment, if such local units are to receive federal
funds. (Even before 1972, for instance, regulations
promulgated under Section 8 of the Federal Water
Quality Control Act of 1965 required a project ap-
plying for federal funds to comply with basinwide
or metropolitan or regional plans.) In this respect,
the words "planning" and "coordination" should be
given full weight. The Act clearly does not wish to
establish centralized operational control -•<- areawide
czardoms. Equally, however, it seeks to discourage
the fragmentation of long-term planning into dozens
of local units. It seeks coordination of the op"
timal number of management agencies and ineterests
at the planning stage, so that planning will be
realistic and operations smooth.
5. Most important to the present report, the Act (in
§208) envisions and encourages areawide management
of waste treatment, including control of point and
nonpoint sources of pollution. The reasons for
adopting an areawide approach arise from the too
frequent failures of past attempts to improve water
quality through federal funding. Too often, the
money spent failed to improve water quality sub-
stantially, or it did so at too high a cost; and
too often a principal cause of the failure was lack
of coordination among political subdivisions. As
the Senate Report to §208 states:
Perhaps the principal cause of in-
efficiency and poor performance in the
management of waste in the metropolitan
regions is the incoherent and uncoordi-
nated planning and the management that
prevails in many areas of the Nation.
Adjacent communities and industries are
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under no mandate to coordinate land use,
or water quality planning activities.
This results in poor overall performance
and the proliferation of many direct and
indirect discharge sources into receiving
waters. Such diffuse and divergent pro-
grams not only intensify pollution prob-
lems but they prevent the use of economies
of scale, efficiency of treatment methods,
and, most importantly, coherent, integrated
and comprehensive land use management[1].
The independent functioning of units
of government in areas of population
concentration without regard to the pol-
lution related requirements of other
areas of the same region will not be pos-
sible. Uncontrolled growth and expan-
sion and competition among units of gov-
ernment will be reduced if effective
environmental controls are to be imposed[2].
It should be added that federal policies and pro-
cedures did not always help states and local gov-
ernments to undertake long-range, areawide planning.
Local agencies were often impeded by uncertainties
in funding or in the timing of grants, though some
areas such as the Seattle Metro program, and the
Minneapolis-St. Paul program overcame these dif-
ficulties in remarkable fashion.
In sum, therefore, the basic reasons for encouraging
areawide planning derive from past bad experiences.
Areawide planning should be of particular help to
the urban-industrial centers characteristic of our
nation, which spread over dozens of political and
other jurisdictions. It should improve water
quality on a cost effective basis, reduce wasted
effort by local agencies, and increase the ease of
cooperation among local, state, and federal agencies
It should enable waste treatment agencies to avoid
many of the costly or disabling errors which have
afflicted local efforts at the operational stage.
6. Areawide planning of water quality control, as
envisaged by the Act, will also have an obvious im-
pact on land use planning in the same area. To
regard water as a common property resource, with
associated costs, and needing planning and manage-
ment, is to assert that its relationships with land
use will require careful and thorough study. The
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implications of the Act are that the use of land and
the use of water are inseparable, and that the prob-
lems caused by their interaction need to be faced
rather than avoided.
REQUIREMENTS OF THE ACT
The Areawide Sequence
In several different sections, the Act envisages a planning
sequence designed to provide local jurisdictions with the
time, the money, and the information to proceed logically
from initial planning to full operation and the assessment of
performance by a variety of avenues. This sequence is em-
bodies in §§201, 203, and 303 (e) and is set forth in The Water
Strategy Paper: Statement of Policy for Implementing Certain
Requirements of the 1972 Federal Water Pollution Control Act
Amendments, issued by the U.S. Environmental Protection Agency
(February, 1973) [3] .
Section 303
§303 deals with the state-level planning process required
under the Act. This is the first, top-level stage of planning,
concerned with river basins and the effect of discharges on
the receiving waters. Among the most important planning elements
are :
©establishing a planning process
©devising water quality standards
fedevising effluent limitation standards
©classifying and designating the streams and bodies
of water subject to these standards
©providing the institutional mechanisms for en-
forcement, appeal, etc.
It should be noted that receiving waters are classified into
two categories: (1) water quality limited segments, wherein
discharges into the receiving waters are controlled by the
water quality standards of the receiving waters because
application of effluent limitations will not suffice; and
(2) effluent limitation standard segments, wherein discharges
into the receiving waters are controlled by the effluent
limitation standards applicable to the effluent being dis-
charged.
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After the §303 planning process is approved and implemented,
or when plans result therefrom, §208 plans must conform to
it in order for a project to be funded.
Section 201
Section 201 planning emerges from EPA's interpretation of the
Act. It deals with areawide planning on a limited basis only,
and it is an interim measure to precede implementation of
§208 areawide planning. As an interim measure, §201 plan-
ning will permit federal funding under the Act prior to im-
plementation of §208 planning.
In fact, the elements of the §201 plan are also required in
§208 plan. The §201 plan is aimed at point source dis-
chargers (public treatment works and private dischargers such
as industry and commerce), directing attention to the tech-
nical effectiveness of waste treatment works. It is also
aimed at their cost effectiveness and must be geared to a
cost efficiency study. In sum, though the §201 plan is very
similar to the §208 plan, it can be smaller in scope: less
than areawide in impact, and little concerned at present with
nonpoint sources of pollution.
Section 208
In comparison with §201 planning, §208 planning is more com-
plex and long-term. A §208 plan is necessary where water
quality problems are of such a nature as to require handling
on an areawide basis. §208 plans deal with both point and non-
point sources of water pollution, and they therefore neces-
sarily affect land use insofar as some control of land use
is needed for control of an area's water quality. They are
aimed to control problems in areas with critical initial
water conditions, or where pollution from nonpoint sources
(such as urban run-off) is a major factor to be considered
along with point source discharges. They are to coordinate
and implement all water pollution control efforts within a
stated area. The areas included within a §208 plan are to
be designated by the governor of each state. Waste treat-
ment management agencies are to be designated for each area.
Clearly, then, these three sections comprise a flexible and
broad opportunity for states and communities to join in area-
wide planning, in an orderly and sequential manner with both
the time and the intention to ensure that all voices are
heard at the planning stage. It should be emphasized that
the Act specifies certain important elements of the sequence
of planning especially affecting the §208 plan. A planning
process is initiated under §303, then moves on to §201 and/or
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§208 plans. After a §208 plan has been adopted, and after the
waste treatment management agency has been designated and ap-
proved, then the §208 plan controls. §208(d) provides that
the Administrator "shall not make any grant for construction
of a publicly owned treatment works under section §201(g) (1)
within such area except to such designated agency and for
works in conformity with such plan."
Under §208, both an areawide plan and an areawide waste treat-
ment management agency (or agencies) are developed. The fol-
lowing sequence of activities must take place in order to
bring this about:
1. On the basis of EPA guidelines describing the nature
of areawide jurisdictions, the Governor of a state
identifies the boundaries to which the areawide plan
will apply. §208(a).
2. The Governor also designates a single representative
organizational group to commence the planning process
and to design the 208 plan. This group will include
a "planning agency." §208(a).
3. Having designed the §208 plan according to the Act's
requirements, the organizational group (through the
Governor) submits the plan to EPA for the Administra-
tor's approval. §208(a).
4. At the same time, after consultation with the plan-
ning group, the Governor designates the waste treat-
ment management agency (or agencies) to be respon-
sible for implementing the plan. He submits it
(them) to the Administrator for approval at the
same time as the plan. §208(c).
5. EPA examines the plan and the designated agencies
according to criteria set out in the Act. §208(b).
6. To gain approval, a waste treatment management agency
must meet the requirements of §208(c) (2).
Planning: §208 (b)
The requirements for a §208 plan to gain approval are set out
in §208 (b). In order for a §208 plan to be approved by the
Administrator of EPA, it must include, but is not limited to,
(a) The identification of treatment works necessary to
meet anticipated needs over a twenty-year period;
necessary wastewater collection and urban stormwater
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runoff systems; and a program to provide necessary
financial arrangements;
(b) The establishment of construction priorities and
time schedules for initiation and completion;
(c) The establishment of a regulatory program to imple-
ment requirements of §201 (c), to regulate location
of facilities which result in discharges in the
area, and to assure that industrial wastes dis-
charged into a treatment works meet applicable pre-
treatment standards;
(d) The identification of those agencies necessary to
construct, operate, and maintain all facilities re-
quired by the plan and otherwise to carry out the
plan;
(e) The identification of the measures necessary to
carry out the plan (including financing), the
period of time necessary to carry out the plan, the
costs of carrying out the plan within such time,
and the economic, social, and environmental impact
of carrying out the plan within such time;
(f) A process to (i) identify, if appropriate, agricul-
turally and silviculturally related nonpoint
sources of pollution, including runoff from manure
disposal areas, and from land used for livestock
and crop production, and (ii) set forth procedures
and methods (including land use requirements) to
control to the extent feasible such sources;
(g) A process to (i) identify, if appropriate, mine-
related sources of pollution including new, current,
and abandoned surface and underground mine runoff,
and (ii) set forth procedures and methods (in-
cluding land use requirements) to control to the
extent feasible such sources;
(h) A process to (i) identify construction activity re-
lated sources of pollution, and (ii) set forth pro-
cedures and methods (including land use require-
ments) to control to the extent feasible such
sources;
(i) A process to (i) identify, if appropriate, salt
water intrusion into rivers, lakes, and estuaries
resulting from reduction of fresh water flow from
any cause, including irrigation, obstruction,
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ground water extraction, and diversion, and (ii)
set forth procedures and methods to control such
intrusion to the extent feasible where such pro-
cedures and methods are otherwise a part of the
waste treatment management plan;
(j) A process to control the disposition of all resid-
ual waste generated in such area which could affect
water quality; and
(k) A process to control the disposal of pollutants on
land or in subsurface excavations within such area
to protect ground and surface water quality.
In addition, the areawide plan must be certified annually by
the Governor (or his designee) as being consistent with ap-
plicable basin plans. Of the requirements listed above,
clauses (f) through (k) may be developed and submitted on a
statewide basis if consistent with a §303 plan.
Management: §208(c)(2)
In §208 (c) (2) appear the requirements imposed on a waste
treatment management agency if it is to receive approval by
the Administrator of the EPA. The requirements of §208(c) (2)
are implemented or enforced by the Administrator, who has the
authority to accept or reject the management agency designated
by the Governor. The criteria for rejection are set out in
§208 (c) (2) as follows:
(2) The Administrator shall accept any such designation,
unless within 120 days of such designation, he finds
that the designated management agency (or agencies)
does not have adequate authority
(a) To carry out appropriate portions of an area-
wide waste treatment management plan developed
under subsection (b) of this section;
(b) To manage effectively waste treatment works and
related facilities serving such area in con-
formance with any plan required by subsection
(b) of this section;
(c) Directly or by contract, to design and con-
struct new works and to operate and maintain
new and existing works as required by any plan
developed pursuant to subsection (b) of this
section;
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(d) To accept and utilize grants, or other funds from
any source, for waste treatment management purposes;
(e) To raise revenues, including the assessment of
waste treatment charges;
(f) To incur short- and long-term indebtedness;
(g) To assure in implementation of an areawide waste
treatment management plan that each participating
community pay its proportionate share of treatment
costs;
(h) To refuse to receive any wastes from any munici-
pality or subdivision thereof, which does not com-
ply with any provisions of an approved plan under
this section applicable to such area; and
(i) To accept for treatment industrial wastes.
It is not required that a single management agency have all
these authorities. Two or more agencies, each with adequate
authority to perform in compliance with the areawide plan,
may collectively meet the requirements of §208(c) (2).
In addition to the requirements imposed by §208 (c) (2), a
waste treatment management agency must also meet the require-
ments imposed by other sections of the Act. For example, to
be accepted by the Administrator, a waste treatment manage-
ment agency must conform not only with the areawide plan, but
must also adopt an acceptable system of user charges. Such
relationships between §208 (c) (2) and other sections should
always be kept clearly in mind.
Particular Projects
In addition to the general requirements listed in the previ-
ous section for the acceptance of a designated waste treat-
ment management agency, other sections of Title II (Grants
for Construction of Treatment Works) impose requirements on
particular projects after a §208 plan is adopted. Some of
the most important are noted in this section.
Some requirements for a particular project appear techno-
logical in nature. As an example, §201(g)(2) provides that
the Administrator shall not make a grant for a treatment
works (from funds authorized for any fiscal year after June
30, 1974) unless the applicant has satisfactorily demon-
strated that (a) alternative waste management techniques
have been evaluated and that the proposed project represents
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the application of the best practicable waste treatment tech-
nology; and (b) as appropriate, the proposed project takes
into account and will allow the application of technology at
a later date which will provide for reclaiming or recycling
of water or otherwise eliminating the discharge of pollutants.
As noted in Section V of this report, the consideration and
adoption of alternative techniques is vital if water quality
management is to be accomplished as envisaged under the Act.
§201(g)(3) also requires the applicant to show that the sewer
collection system discharging into the proposed works is not
subject to excessive infiltration. From a technological and
operational point of view, meeting these requirements can be
both difficult and costly.
§203(a) of the Act requires that the applicant submit for the
Administrator's approval the plans, specifications and esti-
mates for the project.
§204 (a) provides that, before approving any grants, the Ad-
ministrator shall determine: 1) that the works are included
in any applicable areawide waste treatment management plan
developed under §208 of the Act; 2) that such works are in
conformity with any applicable state plan developed under
§303(e) of the Act; 3) that such works have state certifica-
tion as to priority within the state in accordance with any
state plan developed and §303 (e) of the Act; 4) that the
applicant agrees to pay the non-Federal costs of such works,
and has made provision for proper and efficient operation;
5) that the size and capacity, including reserve capacity, of
the works relate directly to the needs to be served; and 6)
that no specifications for bids are so written as to contain
priority, exclusionary or discriminatory requirements.
The waste treatment management agency must also be cognizant
of, and be prepared to overcome, any adverse effects on the
environment. §511(c) of the Act provides that action of the
Administrator in approving a grant for a publicly owned treat-
ment works as authorized by §201 is not exempted from the im-
pact statement requirements of the National Environmental
Policy Act of 1969. The applicant must, therefore, be in a
position to supply information for the required impact state-
ment .
The foregoing are not exhaustive, but are examples of require-
ments imposed on particular projects for which federal funding
is sought.
After a §208 plan has been adopted and approved by the Ad-
ministrator, there is a clear sequence of requirements for
any project in the area applying to be approved and funded.
The major requirements are as follows:
-------
1) The applicant (waste treatment management agency)
must be accepted by the Administrator, and, in
order to be accepted, the applicant must have ade-
quate authority either alone or in conjunction with
other agencies (i) to carry out its (their) appro-
priate portions of the areawide plan and (ii to per-
form as otherwise required.
2) The proposed project must be in conformity with any
applicable state plan and be certified by the state
agency as having priority for funding.
3) The proposed project must comply with the areawide
plan and be under management of an approved manage-
ment agency.
4) The proposed project must meet the technical and
special requirements of the Act as promulgated by
the Administrator.
REPORT SUMMARY
Effective planning on a functional basis can overcome or
avoid many of the problems posed by §208 (c) (2) , and the pur-
pose of this report is to identify some of the legal and
management issues which §208 planners will have to resolve.
This section presents an overview of the rest of the report,
identifying the central issues which arose during the study.
Section IV of the report faces an issue crucial to existing
water quality management agencies: do those entitites cur-
rently performing the wastewater treatment functions within
each of the 50 states now have adequate legal authority to
meet the provisions of §208 (c) (2)? This issue is highly
complex, and it is necessary to read the discussion in Sec-
tion IV- Roughly speaking, though some requirements will
offer no difficulty, a prospective waste treatment manage-
ment agency should not count on its present general powers
as giving that "adequate authority," but if in doubt should
seek special legislation. Appendix A contains suggested or
model legislation regarding such "adequate authority."
Section IV covers other legal problems which may also face
the typical waste treatment management agency. Appendix B
contains a brief report on each state as well as the format
used in researching state laws.
Section V, in parallel fashion, surveys the management prob-
lemslikely to face a waste treatment management agency.
Selected agencies already in operation were analyzed in order
to identify management problems likely to arise during the
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implementation of §208 (c) (2). These problems were then
examined in relation to broader problems emerging when other
sections of Title II are also implemented. In examining the
existing agencies, certain criteria were used to make com-
parisons between different agencies: the structure and or-
ganization of the agencies; their powers, duties, and needsj
and their responsibility to state and local governments and
to the public. Areawide planning (as under §208) is essen-
tially a matter of turning existing geographic and hydrologic
realities into political and administrative realities. While
detailed reading of Section V will indicate the multitude
and variety of problems encountered in this process, the sur-
vey also showed that there are at least three models of water
quality management (areawide, basinwide, and regionalized
state) which are suitable for local modification and imple-
mentation when supported in certain clearly specified ways.
Section VI enlarges upon the three models of water quality
management mentioned above: (a) an areawide arrangement
patterned along the lines of a sanitary district or metro-
politan sewer board; (b) an intrastate basin arrangement; and
(c) a regionalized state arrangement. Section VI delineates
each type according to its activities, structure , planning
process, and decision-making characteristics, so that pro-
spective planners will have a clear idea of the appropriate-
ness of each model to their own situation. Though this study
concentrated on problems in implementing §208 (c) (2) , other
issues arose which need consideration if the §208 problems
are to be seen in perspective. Section VI therefore also
deals with some of these larger issues, notably the inter-
relationship between the problem of identifying boundaries for
a management agency and the problem of specifying arrangements
which will ensure adequate representation in the process of
decision-making. Though the Section may sound "theoretical,"
its information is based on the real experience of existing
agencies, and planners will find that these general issues
will heavily influence the fundamental decisions they must
make .
Section VII_ is a necessary addendum to Sections V and VI. In
brief forrrPit assesses the legal problems in implementing the
management models mentioned in those Sections. Since areawide
planning essentially involves some shift from local control
toward a broader control, it will encounter legal problems in
many states, and this Section outlines the kind of problem
which a planner may expect to face when he examines his own
state's legal situation.
Section VIII deals with the effect of the Act on land use
planning, brought about by the relationship between §§201(c),
208 (b), and 208 (c) (2). As an example, the plans for
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areawide waste treatment management must include a program
to regulate the location of any facilities in the area
which may result in any discharge in the area. Thus the
waste treatment management agency must have some control
over the location of such facilities, which is a clear re-
lationship with land use. Section VIII discusses some of
the ramifications of this important issue. It also dis-
cusses briefly other mechanisms which might be utilized to
assist in implementing the Act.
RESEARCH METHOD
To understand the conclusions and recommendations embodied
in this report, it is helpful to know the information base
on which they were developed and the method by which the
research team acquired the information during the course of
the study. This section details the study's methodology in
both legal and management areas. The advice and suggestions
of consultants knowledgeable of and experienced in the prob-
lems of water quality control were obtained during each step
of the legal and management research studies.
Legal Studies
The study of legal problems affecting waste treatment man-
agement agencies resulting from the provisions of §208 (c)
(2) of the Act was conducted as follows:
1) Review of the proposed Act (then S.2770 and H.R.
11896) and later the Act itself with emphasis on
§208 (c) (2) .
2) Review of prior federal acts, general literature
about them, and of other background materials.
3) Development of a format to guide the researching of
state laws.
4) Research of state laws and drafting of state re-
ports. (Appendix B.)
5) Research and preparation or selection of model
legislation. (Appendix A.)
6) Revision of the format for state reports to include
(i) identification of reasonable implications from
typical general state laws and (ii) necessary as-
sumptions as to the meaning of sections of the Act.
7) Preparation of this report, model legislation, and
state reports.
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The study also required extensive contact with personnel
across the country. Each state and U.S. Environmental Pro-
tection Agency (EPA) regional office was conducted by letters
and questionnaires soliciting information as to practices,
laws, regulations, publications, and other sources of infor-
mation. All EPA regional offices responded with the re-
quested information. Most states also responded with very
helpful information, although a few failed to respond despite
second requests. After revision of the format for state re-
ports and after preparation of state reports, selected states
were furnished copies of the format and their state report
with a request for comments. The replies confirmed the re-
sults of the research and provided further insight into the
problems of the states and their waste treatment management
agencies in complying with the requirements of §208 (c) (2) of
the Act.
The following is a brief commentary on each step in the re-
search.
1) The review of the Act resulted in a keen awareness
of the interrelationship of many of its provisions.
The provisions of §208 (c) (2) could not be isolated
from provisions with respect to areawide planning.
These latter provisions could not be isolated from
provisions dealing with designation of areas by the
governor, appointment by the governor of a represen-
tative organization to develop areawide plans, and
development of a state planning process. This inter-
relationship required in some instances broadening
the scope of the treatment of §208 (c) (2), and in
other instances assuming that compliance with related
provisions of the Act already existed.
2) The review of prior acts and other background mate-
rials revealed that some provisions of the Act were
entirely new while other provisions were already in
prior legislation or had existed in the form of reg-
ulations, guidelines or practices under prior acts.
3) Based on the review of the Act, the format for state
reports was prepared. The interrelated sections of
the Act and the assumptions which were made were
noted in the format and continue to be a part of it.
The format as revised appears as part of Appendix B
of this report.
4) With the format as a guide, research of state laws
was conducted, and state reports prepared. The
assumptions and implications set forth in the format
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were not for the most part repeated in the state re-
ports. It is necessary, therefore, to read the for-
mat in conjunction with each state report. This ad-
monition is set forth quite clearly in the format.
Research and reporting were limited to state laws
although local ordinances and laws enacted pursuant
to a state enabling law will certainly be pertinent
in determining compliance with §208 (c) (2) in indivi-
dual cases. The introduction to the format makes
clear this limitation of the state reports. The
state reports appear as part of Appendix B to this
report.
5) As a result of the research of state laws, certain
problem areas appeared. Suggested remedial legis-
lation was therefore prepared. Recent legislation
in some states provided a basis for some of the sug-
gested remedial legislation. Model legislation pre-
prepared by the Council on State Governments, and
the Interlocal Cooperation Act prepared by the U. S.
Advisory Commission on Intergovernmental Relations
were also used as models. The sources of model
legislation are noted with each model law or set of
laws. The model remedial legislation appears as
Appendix A to this report.
6) After most of the research on state laws was com-
pleted, the format was revised to act as a sup-
plement to each state report. Thus the revised for-
mat not only provided a guide for research, but is
also an integral part of each state report. As
noted previously, this revised format appears as part
of Appendix A.
7) This report was prepared after the foregoing steps
were completed.
Management Studies
The general objective of this study was to provide recommen-
dations and models to help implement the water quality man-
agement arrangements required by §208. The management studies
approached this objective by three basic tasks. First, a
search of state policy and relevant literature was undertaken.
This search focused on the administrative history, legal
authority, and organizational structures of water quality
control agencies for state, interstate, and regional juris-
dictions .
The second task was to assess selected existing management
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agencies. The criterion for selecting these agencies was
areal basis: a selected agency could be described as less
than areawide, areawide , basinwide (interstate and intrastate) ,
and statewide. However, consideration was given to avail-
ability of information about agencies in the literature.
Agencies that had already been studied extensively would:
(a) be better equipped to respond and be more responsive to
our requests for information; (b) probably be more aware of
the legislative provisions in this Act and hence how they
would be affected by them; and (c) more likely to be eligible
for funding under the provisions of the Act. It Seemed
likely that the more sophisticated management agencies would
have anticipated problems in implementing this legislation,
and it seemed probable that most operating agencies would
encounter problems. Site visits were made to a number of
these to interview their managers. Interviews were held
with Seattle Metro, Miami (Ohio) Conservancy District, Metro-
politan Sanitary District of Greater Chicago, Twin Cities
(Minnesota) Metro Sewer Board, and the Northeastern Illinois
Planning Commission. Additional contacts were made by mail
and telephone with a number of other agencies. The purpose
of these site visits was to gain a clearer understanding of
the present legal and political environments in which they
function, to review present administrative organizations and
operating procedures, and to assess current policy implemen-
tation approaches.
The final task was to assess alternative management approaches
with respect to implementing §208 of the Act in order to de-
termine specific problems that might arise for existing agen-
cies .
RESEARCH CONCEPTS
Obviously a research team studying a topic of such import as
water quality management has certain basic concepts , and a
certain terminology, which structure the research. This
section sets out those concepts, states the assumptions made
by the research team, and defines the terms used throughout
the report. (Other definitions appear in the Glossary in
Section IX.)
The Water Management System
Given the fundamental tasks of identifying the problems which
federal, state, and local agencies may face in implementing
§208, and of recommending appropriate responses to those
problems, the research team needed a research approach which
would serve to obtain both detail and variety. For this rea-
son, the concepts of systems analysis were used. In general,
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the systems approach regards water resources as an input into
a water management system which is meant to achieve improve-
ment in the quality of the environment. While the management
of water quality (upon which this study focused) supposedly
confines itself only to considerations of water quality, the
research team concluded that other considerations concerning
water — especially water quantity -- cannot be treated com-
pletely separately. Especially, the separation of different
management activities into those which deal with water qual-
ity and those which deal with water quantity is an inef-
ficient management arrangement. Hence the concept of the
water management system, dealing with all activities con-
nected with a production function in the traditional eco-
nomic sense. In other words, water resources are inputs to
the water management system, and the outputs of that system
are some combination of water-related goods and services[4].
To elaborate upon this description briefly, the water re-
sources which are inputs to the water management system pos-
sess certain characteristics (quantity, quality, time, and
place) , to each of which the water management system must
make an adequate response. The water management system
transforms water resources into water-related goods and ser-
vices (outputs). The water management system itself contains
both physical and non-physical elements. It includes, of
course, the visible structures and physical measures by
which water is managed. It also includes the management in-
stitutions through which water resources are transformed into
goods and services. And finally it also includes the poli-
cies which direct the way in which the institutions, struc-
tures, and measures will operate. The ultimate objective of
this system is the improvement of environmental quality,
broadly defined, by the production of such water-related
goods and services as electric energy, flood damage reduc-
tion, recreation, and navigation for municipal, industrial,
or agricultural purposes.
The concept of water management system proved both simple and
useful to the research team. It encourages analysis of water
as a resource to be managed by responsible cooperating agen-
cies , like any other resource capable of being turned into
desirable products. It emphasizes the idea of responsible
management of that resource with the objective of sustaining
maximum quality in the final products, whatever they might
be. Transferred to any given geographical area, the system
concept provides a consistent rationale for practical plan-
ning actions.
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Evaluating Water Management Systems
Any water management system should possess certain essential
characteristics. It needs the ability to:
• Use the full range of governmental tools for in"-
fluencing water use and development.
•Participate in the management of other residuals
(gaseous, solid, energy, as well as liquid).
•Consider and adjust to externalities stemming
from hydrologic interdependcies.
•Adapt water management actions to different cir-
cumstances of time and place with protection
against arbitrary and capricious actions.
•Express and consider the range of values relevant
to a water management decision.
• Recognize and incorporate water management ac-
tivities into governmental operations on a con-
tinuing basis.
•Finance water management efficiently.
From these characteristics, the research team developed a set
of criteria against which to assess any water management
agency, or in other words to evaluate any institutional ar-
rangement for water management[53. There are four major criteria!
1. Representation -- Institutional arrangements
(water management systems) should be designed
so that each individual has the opportunity
to participate in decisions involving value
preferences that affect him.
2. Information Generation -- Institutional ar-
rangements (water management systems) need
the capability to develop data on a range of
water quality management alternatives and
their consequences. Further, they should
develop plans and analyses for water develop-
ment which reflect the range of perceptions
and value preferences held by the segment
affected. Where substantial difference
exists in value preferences, two or more
major information generating units may be
required.
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3. Efficiency -- Institutional arrangements
(water management systems) should be capable
of weighing external effects of decisions;
they should foster efficient results in
light of physical, chemical, and biological
characteristics of water resources, available
technology, and human behavior. This means
institutions must be adapted to the specific
physical situation and technology available,
but they must also be capable of adapting to
changing conditions, i.e., changing technology.
4. Effectiveness -- Institutional arrangements
(water management systems) must offer rea-
sonable promise of achieving the results
sought within a reasonable time period.
Definitions
Certain crucial words used in the Act possess several mean-
ings in common usage: notably the terms "treatment works,"
"portion," "areawide," and "full cost recovery charge." The
meaning used by the research team for each term is given
below -
The definition of treatment works in §212 of the Act, par-
ticularly Part II, B, was important to the research:
(2)(A) The term 'treatment works' means any
devices and systems used in the storage, treatment,
recycling, and reclamation of municipal sewage or
industrial wastes of a liquid nature to implement
section 201 of this Act, or necessary to recycle
or reuse water at the most economical cost over
the estimated life of the works, including inter-
cepting sewers, outfall sewers, sewage collection
systems, pumping, power, and other equipment, and
their appurtenances; extensions, improvements, re-
modeling, additions, and alterations thereof; ele-
ments essential to provide a reliable recycled supply
such as standby treatment units and clear well
facilities; and any works, including site acquisi-
tion of the land that will be an integral part of
the treatment process or is used for ultimate dis-
posal of residues resulting from such treatment.
(B) In addition to the definition contained in
sub-paragraph (A) of this paragraph, 'treatment
works' means any other method or system for pre-
venting, abating, reducing, storing, treating,
separating, or disposing of municipal waste,
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including storm water runoff, or industrial waste,
including waste in combined storm water and sani-
tary sewer systems. Any application for construc-
tion grants which includes wholly or in part such
methods or systems shall, in accordance with guide-
lines published by the Administrator pursuant to
sub-paragraph (C) of this paragraph, contain ade-
quate data and analysis demonstrating such pro-
posal to be, over the life of such works, the most
cost efficient alternative to comply with Sections
301 or 302 of this Act, or the requirements of
Section 201 of this Act. (Emphasis added.)
It should be noted, in other words, that "treatment works"
is not limited to mean conventional sewage treatment plants,
and this report therefore avoids the conventional usage.
The word portion is of special importance to §208(c)(2)(A),
which provides that the waste treatment management agency (or
agencies) have authority to carry out "appropriate portions"
of the §208 areawide plan. The term "portions" includes but
is not limited to a geographic meaning. It has functional
and administrative connotations as well. Thus an agency (or
agencies) may perform one or more of the required functions
or administrative tasks, with the result that a number of
agencies may be assigned or delegated different tasks under
the §208 plan, rather than one agency being required to per-
form all required functions. The greater flexibility in-
herent in this definition is important to the alternative
models, to the solutions of problems identified in this re-
port, and to the utilization of existing agencies which can
perform as required.
This report defines areawide to mean the area designated as
such pursuant to §208(a).Such areas are those which have
substantial water quality control problems, whether because
of urban-industrial concentrations or other factors. An area
might be a Standard Metropolitan Statisticsl Area (SMSA), or
a part thereof, as defined by the Office of Management and
Budget. Hence the term "areawide" must delineate a geo-
graphical area which corresponds to the area designated by
the terms "water quality problem area" and/or "urban-industrial
concentration." A substantial water quality control problem
may be said to exist only where its complexity and nature re-
quire an areawide waste treatment management plan, and also
where (a) a substantial portion of the receiving waters can-
not meet water quality standards or (b) a substantial and
extensive groundwater pollution problem exists.
Full cost recovery user charge means any mechanism which
levies a price on discharges for the purpose of creating an in-
centive to affect the quality and/or the quantity of the
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discharge and, in effect, charges the user for utilization
of a common property resource.
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NOTES
SECTION III
1. Committee on Public Works, Federal Water Pollution
Control Act Amendment of 1971 Senate Report No. 92-414,
92nd Congress 1st Session, October 28, 1971. p. 36.
2. Ibid, p. 37.
3. The adoption, timing, and implementation of §303, 201,
and 208 planning as described in this report is set forth
in detail in Water Strategy Paper (Statement of Policy
for Implementing Certain Requirements of the 1972 Federal
Water Pollution Control Act Amendments), released by the
U. S. Environmental Protection Agency on February 27, 1973,
4. Lyle E. Craine, Water Management in England, Resources
for the Future, Johns Hopkins Press, 1969. Chapter 2,
pp. 5-22.
5. These criteria emerge from a review of relevant litera-
ture in the field. Among the better expositions on this
topic are:
Allen V. Kneese and Blair T. Bower, Managing Water
Quality: Economics, Technology, Institutions,Resources
for the Future, Johns Hopkins Press, 1968 Chapter 1A.
Irving K. Fox, Water Resources Policy in Wisconsin: A
Summary Assessment, The University of Wisconsin, Water
Resources Center, 1971, Chapter 1.
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SECTION IV
ANALYSIS OF LEGAL PROBLEM AREAS OF WASTE
TREATMENT MANAGEMENT AGENCIES IN
COMPLYING WITH §208(c) (2) OF THE ACT
INTRODUCTION
There are legal constraints existing within the states which
make it difficult, if not sometimes legally impossible, for
some existing waste treatment management agencies at local,
areawide and regional levels within a state, or interstate, to
meet the requirements of §208(c)(2). If they cannot meet such
requirements, such management agencies will not be deemed to
have "adequate authority," and their designation will not be
accepted by the Administrator.
A waste treatment management agency may have many functions
only one of which is the construction and operation of a
publicly owned waste treatment works for sewage collected in
its system. Under the Act, the word "management" envisions
more than operation of a waste treatment works. It might more
appropriately be called a water quality management agency.
A waste treatment management agency whose primary or sole
function is the operation of a waste treatment works may com-
ply with the requirements of the Act if other agencies oper-
ating in the area served by the applicant satisfy the other
requirements of the Act. In other words, one waste treatment
management agency may perform all the required functions, or
several agencies operating in the area -- each performing
different required functions — may collectively perform all
the required functions. One function is construction, oper-
ation and maintenance of publicly owned waste treatment works.
This function is closely allied with other functions such as
establishing a charge system, incurring indebtedness and uti-
lizing grants for construction purposes. Other functions in-
clude, but are not limited to, planning, regulation (including
establishing of standards), identification of nonpoint sources
of pollution and procedures to control such nonpoint sources,
enforcement, and other activities such as materials recovery
and effluent monitoring. All functions considered together
constitute the plan to improve water quality in the area.
It should also be noted that more than one waste treatment
management agency may be performing the same function -- e.g.,
operation of a waste treatment works -- in the area encom-
passed by the areawide plan. Thus, this particular agency's
"portion" of the plan is both functional and geographic. Ex-
cessive geographic fragmentation -- i.e., many agencies
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performing the same function within the area -- should be
avoided, however, as such fragmentation leads to inefficiencies,
difficulty in assigning responsibility and generally detracts
from the areawide concept. As an example, operation of treat-
ment works could be done by several local agencies within the
area without detracting from the areawide concept, but plan-
ning, enforcement, and control of nonpoint sources should be
performed by an agency or agencies operating throughout the
area.
GENERAL LEGAL CONCEPTS TO BEAR IN MIND
It is important to bear in mind some rather basic legal con-
cepts applicable to the powers and authorities of municipalities
and administrative agencies and to disregard some "perceived"
legal concepts which no longer have much vitality in this area.
It should be noted first that municipal corporations and ad-
ministrative agencies do not have, as a general rule, any in-
herent powers except as may be reserved or delegated to them by
a state constitution. Examples of such constitutional reser-
vation or delegation to municipalities are the "home rule" pro-
visions existing in some states[1J. For the most part, municipal
corporations and administrative agencies garner what authority
and powers they have from the legislature which creates them[2].
In the case of delegation of powers to municipal corporations,
it is generally held that such delegation of power may be broad
and of the most general nature, while more detailed delegations
are required for administrative or executive agencies [3].
A second point to bear in mind is simply that it is better for
a municipality or an agency to have express statutory authority
to perform in a certain manner or to do certain acts rather
than to rely on an implied authority garnered from some power
expressly conferred. As an example, a waste treatment manage-
ment agency may have express authority to accept federal grants
and to do all things necessary in order to secure such grants.
In order to be eligible for a grant under §201, the agency must
have, as required by § 208 (c) (2) (F) , adequate authority to incur
short- and long-term indebtedness. In the absence of express
authority for this particular agency so to incur indebtedness,
it is somewhat risky to imply such authority from the express
power to accept a federal grant and to do all things necessary
to secure it [4].
This second point is based on the concept that implied powers
must arise by necessary or fair implication from express powers
granted to the municipality or agency. The risk in relying
on an implied power without prior judicial determination is that
the courts take different positions depending upon all of the
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circumstances involved[5]. Some courts take a very strict
constructionist view[6]. In the final analysis, what can
reasonably be implied is generally resolved by the courts
taking into consideration legislative intent, what type gov-
ernmental entity is involved, other specific legislation
bearing on the powers of the agency, constitutional limita-
tions, reasonableness of the inference, and so on. Thus, it
is preferable to have express authority to so act rather than
rely on an implied power.
The concept of unconstitutional delegation of legislative
powers to administrative agencies aopears to have little ad-
verse effect on state pollution laws. State laws setting forth
broad general policies and then delegating implementation to
state and/or local agencies have been upheld when attacked.
This is particularly true where the general health and safety
of the public is involved and where a certain expertise is
needed to implement the policies of the law. In addition,
where notices, hearings and fair administrative procedures
are required, and where decisions by the agency are subject to
judicial review, the broad delegations are upheld. It has
been observed by an eminent authority on state administrative
law that "almost any extent of discretionary power may be
delegated if public safety is significantly involved, and. there
is a need for the exercise of an expert judgment which the
agency undoubtedly possesses, and if its procedures afford
fair hearings, and adequate judicial review is provided[7]."
As examples, Pennsylvania and New Jersey defined "air pollu-
tion" in general terms. State agencies to which had been
delegated the regulation and enforcement of air pollution con-
trols established standards and proceeded to prosecute per-
sons who violated the standards. The violators defended on
the basis of an unconstitutional delegation of legislative
authority, but to no avail. The courts in both states upheld
the convictions of the violators and dismissed their defenses
for several reasons including the facts that public safety
and health were involved, the need for expertise in admini-
stration (the state need do no more than define broadly "air
pollution"), and the fact that hearings and judicial review
were provided[8]. In 1970, a delegation by 14 Iowa cities
and municipalities of solid waste management to a metropolitan
area solid waste agency was upheld. The court, in upholding
the delegation, stated that the new quasi-municiDality could
be created, pre-existing powers of each participant furnished
the standards for implementation by the new agency and the
objective of improving the health and safety of the people
dictated a liberal construction[9].
As applied to the requirements of §208 (c) (2) , this means that
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legislation need not detail every power or authority of the
waste treatment management agencies, but it should, as observed
earlier, expressly confer an authority to perform certain acts
rather than leave this to implication or inferrence. Whether
the delegation is to a municipal corporation or to a limited
jurisdiction administrative agency is also a factor determining
the detail required in the delegation of authority.
These are but a few examples of legal concepts and their ap-
plication to analysing the application of §208 (c) (2) to waste
treatment management agencies (whether they be munici-
palities or administrative agencies).
PREVALENT LEGAL CONSTRAINTS AND PROBLEMS
The following is an analysis of what is required of a waste
treatment management agency (or agencies) if it is to be ac-
cepted by the Administrator as having "adequate authority"
under §208 (c) (2). The analysis focuses on the construction,
operation, and maintenance of publicly owned treatment works
for the reason that this is the function for which most ap-
plicants will seek funding, although alternatives should not
be overlooked since they can also be funded under the broad
definition of treatment works in §212(2). The more prevalent
legal constraints and problems are noted. The analysis follows
the order of the requirements set forth in §208(c)(2) with
additional references to other provisions of Title II and the
Act where deemed particularly pertinent.
The review of state laws with respect to the powers, authority
and duties of waste treatment management agencies -- in most
instances, & city, county, sanitary district, or similar
governmental entity owning and operating a treatment works —-
reveals some areas in which legal problems are prevalent as
well as areas in which there are relatively few legal problems.
As an example, most agencies have the authority to construct,
operate, and maintain a treatment works. On the other hand,
very few agencies (whether they be state, areawide, or local)
have authority to cut off treatment services to any munici-
pality or subdivision thereof which does not comply with any
provisions of the areawide plan. In considering each of the
"adequate authorities" required by §208 (c) (2), it is noted
whether constraints and problems exist.
In considering a waste treatment management agency as broadly
defined -- i.e., an agency performing many functions in ad-
dition to operation of a conventional treatment works -- a
review of state laws indicates that very few existing single
agencies satisfy all requirements of the Act. In most in-
stances , such agencies operate the treatment works while other
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required functions are performed, if at all, by other agencies
operating both within and beyond the jurisdiction of the
operator of the treatment works. As an example, a munici-
pality or sanitary district may operate a treatment works
while the board of health or a water pollution control agency
will regulate industrial discharges into streams and rivers.
This division of authority with respect to water quality con-
trol is sometimes brought about by the legal constraints under
which each agency performs. In other instances the impetus
may be political or merely expedient, but the divisions of
overall authority for water quality control exist and must
be recognized. As recommended earlier, however, an effort
should be made to reduce the number of agencies involved --
i.e., reduce fragmentation.
Authority to Carry Out Areawide Plan — §208(c)(2)(A)
§208 (c) (2) (A), of the Act requires that the waste treatment
management agency must have adequate authority to carry out
appropriate portions of an areawide waste treatment management
plan developed under §208(b). There is, as a result, an
interrelation between the legal capacity of the agency and
the areawide plan.
§208 (b), which mandates the areawide plan, sets forth what
must be included in such an areawide plan. Among the re-
quired elements of the areawide plan are: (a) identification
of treatment works necessary to meet anticipated demands and
a program to provide the necessary financial arrangements
for the development of such treatment works; (b) establish-
ment of construction priorities; (c) establishment of regu-
latory programs to control point and nonpoint sources of
pollution as well as regulate the location of point source
discharges (see Section VIII of this report for a discussion
of this regulatory program); (d) identification of those
agencies necessary to carry out the plan, including operation
of all required facilities; (e) identification of measures
necessary to carry out the plan and the economic, social and
environmental impact of carrying out the plan; (f) a process
to identify and control agriculturally-related nonpoint
sources of pollution; (g) a process to identify and control
mine-related sources of pollution; (h) a process to identify
and control construction activity-related sources of pol-
lution; (i) a process to identify and control salt water
intrusion; (j) a process to control disposition of all resi-
dual waste which could affect water quality; and (k) a process
to control disposal of pollutants on land to protect ground
and surface water quality. One agency could perform all of
these tasks, but there are very few instances of this in the
states. In the overwhelming number of cases, several agencies
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are involved in a given area in performing these functions.
As noted in item (d), the areawide plan must identify those
agencies necessary to carry out the plan. Until such plan is
devised, it cannot be ascertained whether a particular agency
has the legal capacity to perform the function assigned to it.
If the areawide plan is drafted carefully and with the powers
of existing agencies in mind, appropriate functions which each
agency can perform can be assigned to such agency. The planning
process can also be instrumental in reducing fragmentation.
It appears that this concept of collective or cooperative
management, reducing the number of agencies when possible, will
be the least disruptive to existing state agencies and the
most effective.
One function of the areawide plan is designation of the agency
or agencies charged with the responsibility for the construc-
tion, operation and maintenance of treatment works. It is this
function which normally is assigned to the local municipality
or sanitary district although it might be a state level agency
as provided in such states as New York, Maryland, and Minnesota.
In assigning this function to a local agency, the legal con-
straints on such an agency operating outside the area in which
it has jurisdiction must always be observed. Many municipali-
ties and sanitary districts are limited to specific geographical
areas in which they can operate.
In determining whether the grant applicant complies with §208
(c)(2)(A) -- i.e., it is authorized to carry out "appropriate
portions" of the areawide plan -- both the legal constraints and
geographical limitations of the agencies to which functions
are assigned in the areawide plan must be noted and observed.
Authority to Manage Effectively Waste Treatment Works -- §208
(c) (2) (B)
§208 (c) (2) (B) requires that the management agency must have
adequate authority to manage effectively waste treatment works
and related facilities in conformance with the areawide plan.
The broad definition of treatment works as set forth in §212 (b)
must be kept in mind. If the treatment works is more than
the conventional end-of-the-pipe treatment plant, then the
authority of the management agency must be considered in this
context. This need for adequate authority to manage effec-
tively does not, however, appear to present legal problems
as much as practical management problems. The review of
state laws does not indicate any legal constraints on the
ability to manage effectively except as are considered when
reviewing the implications of § § 208 (c) (2) (C) through (I).
These sections are more specific as to the required authori-
ties or powers of the waste treatment management agency. if
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the waste treatment management agency, either alone or in con-
junction with other agencies, meets the specific requirements
of §§208 (c) (2) (C) through (I), then there appear to be no
legal constraints which impair the ability or authority of
the agency to manage effectively the waste treatment works.
This requirement alone does not, therefore, pose any signi-
ficant legal problems for the waste treatment management
agency.
Authority to Construct and Operate Treatment Works Required
by the Areawide Plan -- §208 (c) (2) (C) .
§208 (c) (2) (C) requires that the waste treatment management
agency must have adequate authority, directly or by contract,
to design and construct new works, and to operate and maintain
new and existing works as required by any areawide plan
developed pursuant to §208 (b). Most waste treatment manage-
ment agencies whose function is wholly, or in part, operation
of treatment works have such authority. It is one of the
functions which are uniformly granted by state law to munici-
palities, sanitary districts or whatever agency is charged
with the treatment function under state law.
One possible problem looms if the areawide plan calls for
the agency to operate a treatment works which is located
beyond its jurisdiction or to accept discharges from beyond
such jurisdiction: for example, where a municipality is
the management agency involved and its jurisdiction is limited
to its corporate boundaries. This relates closely to the
requirement of §208 (c) (2) (A) with respect to the management
agency having adequate authority to carry out appropriate
portions of the areawide management plan when "appropriate
portions" refers not only to functional portions, but to
geographic portions. This problem can be avoided by cautious
planning, but cautious planning may not be good planning.
If good planning calls for an agency to operate beyond its
jurisdiction, remedial legislation may be necessary. As
an alternative to remedial legislation, the treatment agency
may agree with entities beyond the agency's jurisdiction
to accept discharges for treatment. The jurisdiction of
the treatment agency is, in effect, extended by operation of
the agreement. Such voluntary agreements between or among
political entities are generally authorized by state laws
such as interlocal cooperation acts.
Another problem of minor scope may be encountered if author-
ization or permission to construct and operate a treatment
works is required from a legislative body or superior admin-
istrative agency. If this is the situation, the required
authorization or permission should be secured before
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a grant application is made, and proof thereof should be sub-
mitted with the application. This would eliminate the legal
problem, if any.
Authority to Accept and Utilize Grants from Any Source — §208
(c) (2) ID)
§208(c) (2) (D) requires that the waste treatment management
agency have adequate authority to accept and utilize grants,
or other funds from any source, for waste treatment manage-
ment purposes. Most waste treatment management agencies have
the authority, either express or implied by state statute,
to receive grants. This is particularly true of federal
grants which are expressly named in such statutes. In some
states, however, there is no legislation with respect to the
receipt of grants, and in still others all grants are re-
ceived by a state or regional agency which in turn distributes
the monies from the grants to waste treatment management
agencies. If state laws require grants to be received only
by a centralized agency which has authority or discretion
over subsequent distribution, a significant legal problem is
posed which may require remedial legislation. As an example,
under the so-called "Delaware system" all federal grants were
received by a state agency for designated projects for which
application had been made. The state agency had the authority
to redistribute the total funds received not only to the ap-
proved projects, but to other projects as well. This, in ef-
fect, stretched the federal grant money, but required local
agencies (municipalities, etc.) to pay a bigger share of the
cost. Under the Act, state agencies may not divert funds or
apportion funds so that an approved project receives less
than the full federal funding to which it is entitled.
Although it can be argued that such apportionment will stretch
the allocation received by the state and finance more pro-
jCcts, such procedure is not permitted under the Act.
In nearly all states, however, the problem of receipt of
grants by a centralized agency can easily be overcome by
providing in the areawide plan, or state level plan under §303
(e), that the centralized agency is merely a conduit or an
auditor, and that acceptance and utilization is, in fact, by
the waste treatment management agency. This should not,
however, be confused with the state level agency's duty to
establish priorities for projects within the state as re-
quired by §§303(e) and 204 (a) .
The terms of the grant will require that the grant funds go
to the waste treatment management agency (grant applicant).
The grant terms control as a contractual obligation, and
grant funds cannot be diverted from the purposes set forth
in the approved grant application.
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As a further assurance that grant funds will only be used in
conformity with an areawide plan and by an approved (accepted)
waste treatment management agency, §208(d) provides that "the
Administrator shall not make any grant for construction of a
publicly owned treatment works under §201(g) (1) within
such area except to such designated agency and for works in
conformity with such plan (areawide plan)."
Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges — §208(c) (2) (E)
§208 (c) (2) (E) requires that the waste treatment management
agency have adequate authority to raise revenues, including
the assessment of waste treatment charges. This does not, at
first glance, appear to present any formidable legal problems.
The raising of revenues and assessment of waste treatment
charges are, however, further qualified by §§204(b)(1)(A) and
(B) of the Act. These sections provide that the Administrator
shall not approve any grant for a treatment works unless the
applicant (a) has adopted or will adopt a system of charges
("user charges") to assure that each recipient of waste treat-
ment services will pay its proportionate share of the cost of
operation of any waste treatment services provided by the ap-
plicant, and (b) has made provision for full recovery from
industrial users ("industrial cost recovery") of the federal-
ly funded portion of the construction cost of the treatment
works attributed to treatment of such industrial users' wastes
These qualifications on the system of charges make it apparent
that some existing and much used systems of charges will not
meet the requirements of the Act in that such systems do not
provide that users will pay their proportionate share of the
costs of waste treatment services.
"User charges" are defined as charges levied by the agency
operating the treatment works on recipients of waste treat-
ment services for the total cost and operation of such works.
User charges as envisioned by the Act do not include cost of
construction, but do include replacement costs for equipment,
etc., which are necessary during the service life of the
treatment works.
In order for a system of "user charges" to assure that each
recipient of services pays its proportionate share of treat-
ment costs, the characteristics of the effluent discharged
into the system by the user should be considered. Treatment
works are generally designed with two basic criteria in mind:
(i) hydraulic capacity -- i.e., volume of effluent to be
treated and delivery flow rate, and (ii) constituent com-
ponents of the effluent to be treated -- i.e., BOD- suspended
solids, etc. If the effluent has high concentrations of BOD
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or suspended solids, it is likely to be more costly to treat
than the same volume of effluent with lower concentrations al-
though removal of a small concentration of pollutants from a
large volume of effluents can also be costly. Thus the char-
acteristics of the users' discharge -- volume, delivery flow
rate (time pattern of discharge), BOD, suspended solids,
toxicity, etc. -- should be considered in assessing waste
treatment charges for such user. If this is not done, such
user will probably not pay its proportionate share of treat-
ment costs.
A system of charges based solely on volume of discharge or on
the amount of water consumed on the premises of the user will
not satisfy the charge system requirements of the Act. As
noted in the Senate Report to §204 of the Act, "as a general
rule, the volume and character of each discharge into a publicly
owned system should form the basis of determining the rate at
which each user should be required to pay." In some instances
charges based on volume might satisfy the requirements of the
Act if this basis of charge represented each user's, or cate-
gory of user's, proportionate share. As an example, if a
treatment works is geared for a certain volume and the charac-
teristics of the discharge received have only a negligible
effect on costs of treatment, a charge based on volume would
represent the user's proportionate share. The volume only
charge system should not be confused with a charge system in
which different categories of users are charged different
rates, but within categories it is proportioned on volume.
In this situation, the differentiation in rates -- if properly
computed based on cost of treatment of each category of users'
discharge -- provides the basis for each category of user to
pay its proportionate share of costs.
Other systems of charges which most likely will not comply
include levies of assessments based on valuation of the prop-
erty served or on its size (front-footage) , and "flat-rate"
charges (monthly, quarterly, etc.). It is apparent that
these systems of charges are in no way connected with the cost
or treatment, although the size (front-footage) basis might
furnish an equitable basis for recovery of capital costs of
the collection system. They are convenient and economical
to administer, but it would be only coincidental if such
systems would equitably distribute recovery of treatment
costs among categories of users as required by the Act.
In some instances, particularly in large multi-industry areas,
it may be argued that the cost of monitoring and assessing
charges makes it unfeasible to employ any "user charge" sys-
tem other than that based on volume. The argument is in ap-
parent conflict with the Act which requires that each category
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of user will pay its proportionate share. The cost of moni-
toring and reporting can, and should be, borne by the user --
in this case, industry. Since a system of "user charges" can
be established by categories, it appears that different rates
for different categories of users could be established which
would result in a system of "user charges" that would satisfy
the requirements of the Act.
In some states, state level administrative or quasi-judicial
agencies must approve rates or systems of charges even when
imposed by publicly owned utilities such as sewer systems.
Except for possible political problems, this constraint would
not appear to detract materially from a waste treatment
management agency's authority to assess "user charges" in
conformance with the Act. This merely requires that the
agency justify its "user charge" system before it will be
approved.
In many states, there is no express statutory authority or
mandate to assess "user charges" based on the cost of treat-
ment or characteristics of effluent. In these states, there
is only a statutory authority to charge for services or to
assess reasonable charges for services. In such situations,
it is reasonable to imply that this express general authority
to charge includes the authority to charge categories of users
for their proportionate share of treatment costs. In a few
instances, the state statutes are such that such implication
cannot reasonably be made. This occurs when it is provided
in the state statute the specific method of charging -- e.g.,
ad valorem tax, assessment based on front-footage, etc.
In addition to recovery of treatment costs, §204(b)(1)(B)
requires full recovery from industrial users of the federal
portion of construction costs reasonably attributed to pro-
vide the treatment works required to treat such industrial
user's discharges in the system. This requirement affects
the waste management treatment agency's required authority
to raise revenues and assess waste treatment charges, since
the revenues and/or charges must include this recovery cost
from industrial users ("industrial cost recovery").
It should be remembered that under the Federal Water Pollu-
tion Control Act in force prior to the 1972 Amendments, the
Federal Water Pollution Control Agency had issued Regulations
(18 CFR§601.34, June 1970) and Guidelines (October 1971)
regarding an equitable system of cost recovery for treatment
of waste waters from industrial users. The industrial costs
to be recovered included both operating and maintenance ex-
penses and amortization of capital costs attributable to
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treating industrial waste waters. What were formerly Regu-
lations are now part of the Act. Methods of "industrial cost
recovery" may be by a system of user charges, connection fees,
license fees, or other techniques available under state or
local law. Referring to ''industrial cost recovery," the Senate
Report to §204 of the Act comments that it "will presumably
occur over a rather protracted period of time." Factors that
might be considered in determining the rate of "pay-back"
include the service life of the treatment works and/or the
term of the debt incurred for the non-federally funded share.
The amount of payback will be actual cost, or a share of cost,
computed on a percentage of the treatment works total capacity
used by the particular industry including any firm commitment
for increased use by that industry. These factors will, of
course, be set forth in regulations and guidelines to be issued
by the Administrator.
Since the Act requires "industrial cost recovery," a question
arises of how firm or enforceable must be the commitment of
industry to repay. This is, of course, a matter of policy
for the Administrator to determine. If only several large
industries are involved, a contractual arrangement with each
can easily be envisioned. With a large number of indus-
tries -- large and small in an urban industrial area -- such
contractual arrangements may be impractical. The number may
be so large that "industrial cost recovery" charges assessed
with, or as a part of, user charges, and spread over a large
base will suffice to assure complete cost recovery irrespective
of some users discontinuing use of the system. This presents
some interesting problems, however, since it would tend to
favor large urban-industrial areas -- i.e., an industrial
user that would be a large contributor in a small urban-in-
dustrial area might be considered, comparatively speaking,
only a small contributor in a large urban-industrial area.
In the case of the small area, a firm commitment would be
required, while in the larger area this would not be neces-
sary. This would appear to give the large area an advantage
over the smaller area at least to the extent that the com-
mitment to repay is a factor in industrial site selection.
Assessments"on the property of industry being served or a
permit fee permitting an industry to discharge into the sys-
tem are other methods of industrial cost recovery. In any
event, it would appear advisable that the states should pro-
vide that industry's rights to discharge into the system,
whether paid for in lump-sum or spread out, be assignable and
transferrable to other industries discharging into the same
system. This would facilitate mobility of industry and en-
courage industry to use the system. On the other hand, the
agency should have the right to reassign, with appropriate
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credits to the obligated industries, any unused right of such
industries to discharge. In this manner, industrial growth in
the area would not be stifled by lack of sewer services when
such services are available due to unused capacity of treat-
ment works.
There are very few instances of express state statutory author-
ity enabling waste treatment management agencies to implement
industrial cost recovery. Most state statutory authority is
directed toward amortizing capital expenditures by charging
all users. This may in some instances present legal problems
if industry is singled out to repay its portion of the federal-
ly funded construction costs. Since the Act does not require
that non-industrial users be exempt from cost recovery, a
system for total cost recovery from all users of the system
would comply with the Act provided industry's share is segre-
gated and the required portion returned to the federal govern-
ment as required by §204(b)(3).
In addition to legal considerations, the impact of the system
of charges on the decision of industry (or categories of in-
dustries) as to treating their own wastes or discharging into
the system cannot be overlooked. The decisions of industries
will be based largely on which is more economical. This im-
pact should be considered when developing an areawide plan for
areas having substantial problems with industrial waste waters.
The acceptable systems of charges or methods of raising reve-
nues which comply with the Act will vary depending on the
type of treatment works and users being served. Irrespective
of the system of charges or method of raising revenues adopted
by a waste treatment management agency, the system or method,
or a combination of the two, must assure that each category
of user pays its proportionate share of treatment costs and
must be within the legal capacity of the agency to implement.
Authority to Incur Short- and Lgng-Term Indebtedness -- §208
Tc) (2) (F)
§208 (c) (2) (F) requires that the waste treatment management
agency have adequate authority to incur short- and long-term
indebtedness. In many instances this authority is necessary
to enable the agency to pay its share of construction costs
as required by §204 (a) (4) of the Act. It should be noted
also at this point that §12 (Environmental Financing) of the
Act establishes the Environmental Financing Authority for the
purpose of providing a market, if it is needed, for state or
local bonds. Federal funds would be used to purchase such
bonds.
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Most state statutes provide adequate authority for agencies
to incur indebtedness. There are procedures to be followed,
limitations of amount which may not be exceeded and, in some
instances, approvals by the electorate are required. Before
a grant application is submitted, all of the necessary pro-
cedures should have been followed, all required approvals
should have been secured, and all periods for referendum or
appeal should have expired. In this manner, no question will
exist as to the agency's ability to finance its portion of the
costs of the project.
One prevalent type of short-term indebtedness is issuance of
bond anticipation notes. This device generates funds when
needed, and the notes can be repaid from long-term bonds. A
similar short-term note could be utilized to be repaid from
proceeds of the grant.
In the case of general obligation bonds, constitutional or
statutory limitations based on a percentage of the value of
taxable property are quite prevalent. These bonds backed by
the full faith and credit of a municipality or political sub-
division are, as a general rule, readily marketable. They are,
however, more likely to be subject to approval by a vote of
the electorate. General obligation bonds are usually issued
by political subdivisions such as counties , cities or munici-
palities . Special agencies, not deemed to be the same as
political subdivisions, in many instances do not have the
authority to issue general obligation bonds since they are
unable to pledge the general credit of the political subdivi-
sion of which they are a part.
In the case of revenue bonds, limitations on the amount that
can be issued by an agency are much less prevalent. The
necessity for voter approval is also less prevalent. The
marketability of revenue bonds is generally not as strong as
general obligation bonds. The latter is particularly true
where revenues are uncertain, since the revenues are pledged
to retire the debt.
In the case of revenue bond financing, the provisions of §§204
(b) (1) (B) and 204(b) (3) may cause problems. These sections
when construed together require segregation of revenues re-
covered from industry in the amount of the federally funded
portion of construction costs attributed to treating in-
dustry's wastes. Part of this repayment revenue must be re-
tained by the agency for future expansion and reconstruction,
and the balance must be returned to the Treasury of the United
States. In the event of a shortage of revenues this could
present a priority problem between revenue bondholders and
the agency and/or the United States, unless the system of
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cost recovery is such that the "industrial cost recovery"
funds are segregated from funds available to repay the lo-
cally funded indebtedness. Including the "industrial cost
recovery" as part of a general "user charge" would prove
troublesome although it might be very convenient to do so.
In order that local agencies will have a ready and strong
market for their revenue bonds, that part of the revenue
from which such bonds may be repaid should be clearly segre-
gated from the part earmarked as "industrial cost recovery."
Authority to Assure that Each Participating Community Pays
Its Proportionate Share of Treatment Costs — §208(c) (2) (G)
§208 (c) (2) (G) requires that a waste treatment management
agency have adequate authority to assure in the implementa-
tion of the areawide waste treatment management plan that
each participating community pays its proportionate share of
treatment costs. This section does not refer to categories
of users or industries, but to participating communities
paying their proportionate share. One apoarent purpose of
this authority is to discourage or prevent the use of feder-
al funds to construct a treatment works, the operation of
which would be unfair to one or more of the participating
communities. This section is a further implementation of the
declared purpose of the Act that the users of services pay
for such services without subsidization from other users.
One legal problem is what is meant by "community." The
very wording of the section -- "each participating com-
mumity" -- implies that there must be two or more communi-
ties being served by the same waste treatment management
agency. Thus, "community" takes on the legal significance
of being more than a neighborhood or unofficial area within
an incorporated political subdivision. It is, as a result,
reasonable to assume that community means (i) a political
subdivision (incorporated entity) of general jurisdiction
and not merely an unofficial area within a political subdi-
vision, or (ii) a well-defined unincorporated area outside
a political subdivision. Community is also differentiated
from municipality in that the latter may include sanitary
districts and other political subdivisions of limited ju-
risdictions as compared with cities, villages, etc., which
are political subdivisions having general jurisdiction and
which could more appropriately be designated as communities.
In any event, for the section to be applicable there must be
more than one "community" involved -- i.e., the agency must
be serving more than one community.
There are few, if any, state statutes directly on point with
the requirements of this section, but there are very few
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impediments under state laws which would prevent communities
joining together for purposes of being served by one waste
treatment management agency. In some states communities can
be required to join together if one or more are not able to
provide adequate treatment services alone, and such agreements
can provide for each to pay its proportionate share. The in-
centives to cooperate are the economies of scale and the
availability of federal funds if the community is part of the
areawide plan. Another "incentive" is the fact that the Ad-
ministrator, or the state, as the case may be, may withhold
permits to discharge as provided in §402 (National Pollutant
Discharge Elimination System) unless the communities agree
to cooperate.
One way to overcome the lack of statutory authority is to have
as part of the areawide plan the requirement that each com-
munity pays its proportionate share. If the waste treatment
management agency has authority to implement the plan, then
it should have authority to require each participating com-
munity to pay its proportionate share as required by the plan.
This provision for assuring that each participating community
pay its proportionate share is closely linked with the pro-
vision of the Act requiring that each category of user pay
its proportionate share of treatment costs. Communities are
composed of one or more categories of users. If each cate-
gory of user is paying its proportionate share, then it would
follow that there is a sound basis for arguing that each com-
munity as an entity is paying its proportionate share. This
can be accomplished by adopting the same formula or system of
charges for the same categories of users in each participating
community- One possible problem in this approach is that, due
to the location of the treatment works in relation to the
communities being served, it may actually cost more to treat
the wastes of a community further from the treatment works.
This would occur, for example, where cost of treatment in-
cludes costs of operating pumping stations and maintenance
of interceptor sewers, since these facilities are included
in the definition of treatment works in §212(2) (B).
For one reason or another, communities joining together might
agree that participating communities not share treatment
costs proportionately or, as may be the case, not take into
consideration costs of treatment when apportioning treatment
costs. Each community might agree that all will be treated
the same although the cost of treatment may vary among the
participating communities. As another example, a community
may not want the treatment works located within its boundaries,
and such community might willingly agree to pay more than its
proportionate share in order to accomplish this desire.
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Barring coercion or unconscionable overreaching, it would
seem reasonable that the division of treatment costs agreed
to by participating communities should be deemed each com-
munity's "proportionate share."
Other problems may arise when more than one community is in-
volved, e.g., at what point do participating communities sur-
render part of their autonomy? As an example, if a bond is-
sue must be approved by the electorate, must the required
majority in each participating community approve the issue
or must it only be approved by a majority of the electorate
collectively in all participating communities? To the extent
that communities have power under state laws, such matters
could be resolved in the agreement or the areawide plan. In
some states, however, there are legal barriers to a community
(political subdivision) agreeing to be bound by a vote of
less than the required majority of its own electorate.
Authority to Refuse to Receive Any Wastes from Any Munici-
pality Which Does Not Comply with the Areawide Plan -- §208
(c) (2) (H)
§208 (c) (2) (H) requires that the waste treatment management
agency have adequate authority to refuse to receive wastes
from any municipality or subdivision thereof which does not
comply with any provisions of the areawide plan. A literal
interpretation or strict application of this authority would
present legal and practical problems of great magnitude. Can
a waste treatment management agency operating a treatment
works serving several municipalities cutoff one or more
municipalities in the event that such municipalities are not
in total compliance with the areawide plan? In most situa-
tions , there would be no place for the untreated effluent to
go except into streams, rivers or lakes. This would, of
course, create substantial problems of water quality control
and would be counterproductive. When it is recognized that
thousands of residential users would be affected, and that
hospitals, schools, and other similar users would have to
cease operations, the strict application of this authority
to refuse — i.e., to "cutoff" service -- appears to be
politically unrealistic and detrimental to existing water
quality.
More realistic interpretations of this authority to refuse
include the right to refuse service to certain users -- e.g.,
an industry or category of industries -- within the munici-
pality, the right to deny additional "hook-ups" to the sys-
tem so long as the noncompliance continues, and the right to
impose fines, penalties, surcharges, or similar sanctions on
the noncomplying community.
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It must be noted that the noncompliance is not limited to
violations in discharging into the system, but includes any
noncompliance with the areawide plan. This greatly increases
the power or leverage of the agency to accomplish overall water
quality control and not merely control of effluents being
treated. As an example, the areawide plan must provide for
control of construction-related nonpoint sources of water pol-
lution. If a municipality fails to control this source of
pollution, it is in violation of the areawide plan, and the
agency must have the authority to "refuse" to receive any
wastes from such municipality.
One prevalent legal problem is that the agency charged with
waste treatment -- i.e., operating the treatment works -- in
many instances does not have the authority to refuse to re-
ceive any wastes, the authority to deny expansion, or the
authority to impose other sanctions. As an example, the plan-
ning authority of the area usually determines land use and
would have jurisdiction over a new residential subdivision or
industrial park. To continue, the building commissioner or
building department may have jurisdiction over issuing indivi-
dual building permits. Thus, these two agencies could approve
substantial new construction resulting in new sources of
sewage. In some states these problems are overcome or avoided
by having the treatment agency take part in the planning
process and the building permit issuing process.
In the case of refusing wastes, this authority sometimes re-
sides in a regulatory agency which may be separate from the
agency operating the treatment works. Thus the regulatory
agency has the authority to order the cessation of discharge
into the system. These problems can be overcome by the two
or more agencies working together, and the areawide plan
should provide for such cooperation in order that this re-
quirement of the Act can be satisfied without new legislation
shifting authority to an agency operating a waste treatment
p 1 an t.
If the noncompliance with the areawide plan is attributable to
identifiable users within the municipality, the authority to
cut-off these users should satisfy this requirement of the Act.
This is particularly true with industrial users. In most
states, waste treatment management agencies have this authority
to refuse to receive wastes from a user who is not in com-
pliance with pretreatment standards. If the noncompliance is
unrelated to the discharge into the system, it is less certain
that service can be denied, since few state laws address this
problem specifically.
Construing the authority to refuse as including the authority
-------
to deny new or additional connections to the system presents
other legal problems. This is particularly troublesome when
the moratorium or refusal affects prospective users who are
not responsible for, and have no way of correcting, the non-
compliance. If noncompliance is existing, or will exist, due
to overloading the capacity of the treatment works, it can
be asserted and maintained that the denial of a permit to
connect to the system is reasonable, although such prospective
users may argue that it is the municipality's responsibility
to provide treatment. If, however, the noncompliance is un-
related to the treatment of point source wastes -- e.g., the
municipality is not in compliance with the areawide plan due
to not controlling agricultural nonpoint sources of water
pollution — the moratorium penalizes prospective users not
only who are free from any fault but whose use of the system
will not adversely affect water quality control. The posi-
tive aspect in this situation is that, from the point of
overall water quality control, this provision of the Act re-
sults in the municipality being pressured both externally
and internally to come into compliance with the areawide
plan.
If the right to refuse is construed to include the power to
impose penalties or sanctions, fewer legal problems are en-
countered. This is particularly true if the noncompliance
is in connection with discharge into the system. Penalties
or surcharges can reasonably be assessed on the degree of
noncompliance. The municipality could then assess users
within the community who contribute to the problem of non-
compliance. Penalties or surcharges for this type of non-
compliance can, and in many instances are, assessed by the
waste treatment agency. The legal justification for such
penalties or surcharges includes the increased costs to the
treatment agency resulting from the users' noncompliance.
As an example, the volume or characteristics of the dis-
charge into the system may be regulated. Violation of this
regulation could result in increased costs to the treatment
agency. If the regulations, penalties, and surcharges are
reasonable and necessary to the operation of the treatment
works, no legal problem should exist in their enforcement.
In the event that noncompliance is unrelated to discharges
into the system, the penalty or sanctions on the munici-
pality could not reasonably be based on, or measured by,
the amount discharged into the system, except to the ex-
tent that it is deemed that the municipality is benefitting
from treatment services in proportion to its volume of dis-
charge into the system. In many states, the control and
imposition of sanctions for violations not related to dis-
charge into the system are imposed by agencies other than
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those operating the treatment works. These take the form of
criminal penalties, and sometimes civil remedies, such as in-
junctions or damages. In imposing additional sanctions, such
as cutting off service, it would have to be clear that the
criminal sanctions are not the exclusive remedies -- i.e.,
there should be express legislative authority to this effect
rather than relying on an implied authority based on an express
authority to regulate. It bears repeating that the areawide
plan must take into consideration these jurisdictional con-
straints when assigning functions to particular agencies.
Authority to Accept_for Treatment Industrial Wastes -- §208(c)
(2) (I)
§208 (c) (2) (I) of the Act requires that the waste treatment
management agency have adequate authority to accept for treat-
ment industrial wastes. In some states this is specifically
authorized by statute. In most, however, it can reasonably
be implied from the express general authority to receive wastes
for treatment.
This provision must be construed in conjunction with §208 (b)
(2) (C) (iii) which requires that the areawide plan include a
regulatory program to assure that any industrial wastes dis-
charged into a treatment works meet applicable pretreatment
standards. The authority to accept such wastes is, therefore,
qualified at least to the extent that such wastes must meet
pretreatment requirements. Pretreatment requirements and
restrictions on wastes discharged into the system are neces-
sary in order to protect operation of the treatment works.
Pursuant to §307 (b) of the Act, the Administration must publish
regulations establishing pretreatment standards for intro-
duction of pollutants into publicly owned treatment works which
pollutants are determined not susceptible to treatment or which
would interfere with the operation of such treatment works.
This section of the Act does not prevent establishment of
pretreatment standards by state or local laws not in conflict
with the federal standards. Thus, under the Act, the treat-
ment management agency has the right to refuse any effluent
which violates federal, state, or local pretreatment stan-
dards or which would damage or disrupt its treatment works and
thus endanger water quality.
The authority to monitor discharges into the system is implicit
in provisions of the Act including the provision for authority
to charge users for their proportionate share of treatment
costs. Assessment of charges would in most instances require
monitoring if it were to be done equitably -- i.e., each cate-
gory of user pay its proportionate share of costs of treatment.
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In addition, §308 (Inspections, Monitoring, and Entry) of the
Act expressly requires monitoring and reporting by owners of
any point source of effluent to carry out the objectives of
the Act which include developing and enforcing of pre-treatment
standards. This, coupled with the broad definition of "point
source" in §502(14), makes it clear that monitoring of indus-
trial wastes is authorized and, in effect, required under the
Act. Each state is authorized to implement its own system of
monitoring and reporting provided that such state system is
equivalent to that required under §308.
Considering the interrelated provisions of the Act, not only
must the waste treatment management agency have authority to
accept industrial wastes for treatment, it must also have the
authority to refuse industrial wastes (i) when pretreatment
standards of the agency are not met, (ii) when such industry
is not otherwise in compliance with the areawide plan, or
(iii) when applicable state and federal laws related to dis-
charge by such industry are being violated.
With respect to treating industrial wastes, a possible legal
problem may arise if a publicly-owned treatment works is con-
structed primarily, or solely, for this purpose. This might
be construed as the use of public funds to benefit private
industrial users. Such a problem can be avoided if the in-
dustrial users served are required not only to pay their pro-
portionate share of treatment costs and the federally funded
share of capital costs, but to repay all of industry's pro-
portionate share of capital costs. In most situations in-
volving funding of the local share by revenue bonds, this
presents no problem, since the charge system will include
amounts to retire the debt. In case the local funding is by
general obligation bonds, some method of recovery from in-
dustry for the local's share of capital costs should be
devised.
SUMMARY
In reviewing state laws in the light of §208(c)(2) of the Act,
and the "adequate authority" required of waste treatment
management agencies, several of the requirements of §208(c)
(2) appear more likely to pose legal problems for waste treat-
ment agencies than others. These problem areas include ade-
quate authority (i) to assess waste treatment charges ("user
charges") based on the user's proportionate share of treat-
ment costs, (ii) to assess charges or raise revenues to re-
cover from industrial users the federal portion of construc-
tion costs of the treatment works attributed to treating such
industry's wastes ("industrial cost recovery"), (iii) to as-
sure that each participating community pay its proportionate
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share of treatment costs, and (iv) to refuse to receive any
wastes from a municipality or subdivision thereof which does
not comply with any provision of an approved areawide plan.
The required authority to raise revenues and assess water
treatment charges appears rather straightforward and generally
free from legal problems. When combined, however, with the
provision that each category of user will pay its proportion-
ate share of treatment costs, many existing systems and
methods of charging users become suspect as not meeting this
requirement. Such systems or methods are not related to cost
of treatment of the wastes of a particular category of users.
In many states, there is no more than a general authority to
charge for services with no requirements that it be based
on, or in any way related to, treatment costs. Thus, a
change in the system of charges to comply with the Act may not
be authorized by state statute.
The required authority to recover from industrial users the
federal portion of construction costs attributed to treatment
of such industrial wastes ("industrial cost recovery") en-
counters the same lack of express statutory authority as does
the requirement to charge users for their proportionate share
of treatment costs. Even in states in which there are express
provisions authorizing charge systems based on recovery of
treatment costs , nothing is expressed regarding recovery of
grant funds. This authority must, therefore, be implied from
other powers and authorities of the agency. In the event of
a shortage of revenue, the legal problems of priority between
the federal government and waste treatment management agency
(as trustee of earmarked funds) on one side, and revenue bond
holders on the other is also presented unless the funds are
clearly segregated.
The required authority to assure that each participating com-
munity pay its proportionate share of treatment costs is
troublesome when participating communities agree among them-
selves on a division of charges which does not provide that
each pay its proportionate share. In other words, how is an
agency going to impose an equitable system of charges on a
community-by-community basis if the communities voluntarily
agree otherwise. As an example, one or more communities may
not voluntarily join an areawide system unless all communities
are treated equally even though the cost of treating sewage
from such communities is more than other participating com-
munities. It is suggested that what is equitable or pro-
portionate as among communities who enter into such agree-
ments should be that to which they agree openly and volun-
tarily.
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Probably the most legally troublesome provision is the re-
quired authority to refuse to receive any wastes from any
municipality which does not comply with any provisions of
the approved areawide plan. The practical impossibility or
unlikelihood of a waste treatment management agency refusing
waste waters from a community that it is already serving
is obvious. The legal problem exists as to what lesser
sanctions can be imposed that will still satisfy this re-
quirement of the Act. In considering lesser sanctions, a
further legal problem is encountered, and that is whether the
agency has legal capacity to impose lesser sanctions such as
a moratorium on new "hook-ups" or a monetary penalty.
As noted in the introduction to this section, a waste treat-
ment management agency should not rely too heavily on its
general powers to receive grants and to contract with the
federal government as a basis for its "adequate authority"
to perform as required by §208(c)(2). This reliance results
in uncertainties until the judicial system resolves them.
It is suggested that legislation granting express authority
is the safer and better route to follow -
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SECTION IV
NOTES
1. Ohio Const, art. XVIII, §7; Pennsylvania Const, art. IX,
§2; See also I Aniteau, Municipal Corporation Law §3.00
e_t seq. (1968) .
2. Minnetonka Elec. Co. v. Golden Valley, 273 Minn. 301, 141
N.W.2d 138, 140 (1966) ("It is clear that municipalities
have no inherent powers and possess only such powers as
are expressly conferred by statute or implied as neces-
sary in aid of those powers which have been expressly
conferred." See I Aniteau, Municipal Corporation Law
§5.01 (1968).
3. I Sutherland, Statutes and Statutory Construction §4.07
(4 ed. by C. Dallas Sands, 1972).
4. See 15 McQuillin, Municipal Corporations §43.19 (3rd ed.
1970) ("As inherent power to issue does not exist, a
municipality may issue bonds only when duly empowered.
At present it is the law in most of the states and in the
Supreme Court of the United States, that municipal cor-
porations have no power to issue bonds unless expressly
authorized to do so, or perhaps where there is an ab-
solute necessity therefore to carry out other powers ex-
pressly conferred upon the municipality; and the power
cannot be implied from the ordinary police powers con-
ferred upon municipalities. However, the earlier cases
in the federal courts were to the contrary, and even at
present implied power to issue is recognized in some
states. Some decisions have held that the express power
conferred on a municipality to purchase property or erect
buildings carries with it the power to issue bonds for
the cost, and that is the law today, it seems, in some
states, although the weight of authority and the tendency
of the later decisions is the contrary.")
5. Gordon v. Fairfax County, 207 Va. 827, 153 S.E.2d 270,
274 (1967) ("The conflicting decisions as to what powers
are necessarily implied from particular expressed powers
indicate that there is no special test to determine this
question.")
6. Beazley v. DeKalb County 210 Ga. 41, 77 S.E.2d 740, 742,
(1953) ("Municipal corporations can exercise only such
powers as are conferred on them by law, and a grant of
power to such corporations must be strictly construed;
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and such corporation can exercise no powers except such
as are expressly given or are necessarily implied from
express grant of other powers, and if there is a reason-
able doubt of the existence of a particular power, the
doubt is to be resolved in the negative."); Green v.
Milledgeville 112 Ga. App. 130, 144 S.E.2d 225 (1965).
("A municipality is confined to the exercise of powers
expressly granted or necessarily implied, and a neces-
sary implication must be so clear and strong as to render
highly improbable that the legislature could have enter-
tained an intention contrary to such implication."); see
13 McQuillin, Municipal Corporations §37.24 (3rd ed. 1971).
7. 1 Cooper, State Administrative Law, 90-91 (1965). See
also I Sutherland, Statutes and Statutory Construction
§4.07 (4th ed. by C. Dallas Sands "19 72) .
8. Bortz Coal Co. v. Air Pollution Comm., 2 Pa. Com. 441,
279 A.2d 388 (1971); Dept. of Health v. Owens-Corning
Fiberglass Corp., 100 N.J. Super 366, 242 A.2d 21 (1968).
9. Goreham v. Des Moines Metropolitan Area Solid Waste Agency,
179 N.W.2d 449 (Iowa S. Ct. 1970).
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SECTION V
REVIEW OF MANAGEMENT PRQBLEM_AREAS OF SELECTED WATER QUALITY
MANAGEMENT AGENCIES IN COMPLYING WITH §208(c)(2) OF THE ACT.
This section of the report opens with a perspective on federal
policy in the field of water quality management and then pro-
vides a background discussion of the areawide approach before
turning to its primary objective -- a review of management
problems of selected water quality management agencies.
FEDERAL POLICY PERSPECTIVE
Two principal approaches seem to run through federal legisla-
tion dealing with water pollution control since the first per-
manent national legislation was passed in 1956. These are:
(1) financial assistance, coupled with (2) enforcement of the
"carrot and stick" approach. The enforcement approach has
always been directed toward individual sources of waste dis-
charges and, over the years since 1956, authority under federal
legislation has been expanded to the point where virtually all
of the sources of pollution, whether interstate or intrastate,
are subject to federal enforcement powers, in principle. The
Water Pollution Control Act of 1965 attempted to strengthen
substantially the federal enforcement mechanism by requiring
that all states set water quality standards on their interstate
and boundary waters. These standards were to be reviewed and
approved by the Secretary of the Interior. The state-proposed
standards were to be accompanied by a proposed program for
achieving them. This set of programs would serve as a basis
against which to assess federal enforcement actions. The
approach used in 1965 legislation was that of setting water
quality standards or ambient standards. The Federal Water
Pollution Control Act of 1972 continues to emphasize enforce-
ment but has linked it to point-source effluent standards
coupled with water auality standards. Hence, a new dimension
has been provided by the Act.
The second basic approach of federal legislation is that of
financial support for waste treatment plant construction.
This program began with the Federal Water Pollution Control
Act of 1965 and has continued under ever-increasing levels of
authorized grants since that time. Table 1 illustrates the
magnitude of authorizations for this particular program.
Illustrative of the levels of authorizations under the 1966
Act was that which authorized $3.4 billion for municipal
wastewater construction grants. However, only $2.2 billion
was appropriated and actual expenditures have run well below
this. Under this Act, it was possible for municipalities to
obtain up to 55 percent of the cost of waste treatment plant
construction from federal grants. By comparison, the Act
provides 75 percent funding from the federal government.
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TABLE 1
KEY FEDERAL WATER POLLUTION CONTROL LEGISLATION
Title Key Provisions
Financial
Rivers and
Harbors Act
Amendments
of 1899
Water
Pollution
Control Act
of 1948
(P.L. 80-845)
Loans for
building
sewers.
Temporary
appropri-
ations $3
million in
1950 to
less than
$1 million
in 1955.
Enforcement
Provides for
injunctive
relief to
halt pollu-
tion .
Seldom
enforced.
Dumping per-
missible
only with a
permit from
Corps of
Engineers.
Fines of
$500-$2500,
or imprison-
ment for 30
days-one
year, or
both. Offers
a bounty of
one-half of
fines col-
lected to
persons
giving infor-
mation which
leads to
conviction.
Primary re-
liance on the
states. Six
step proce-
dure with
enforcement
dependent
upon state
agency con-
senting
thereto.
Very in-
effective .
Other
Forbids all
pollution dis-
charges except
liquid munici-
pal wastes.
Very complex
implementation
Covers naviga-
ble waters or
their tribu-
taries .
Establishment
of Water Pol-
lution Control
Division of
Public Health
Service.
Expired in
1956.
-------
TABLE 1 (cont'd)
Title
Water
Pollution
Control Act
Amendments
of 1956
(P.L. 84-660)
Key Provisions
Financial
Matching
grants for
waste treat-
ment plant
construction
$50 million
annual
authoriza-
tion. Funds
consistently
vetoed by
President.
Enforcement Other
Enforcement
by conference-
hearing-court
action for
interstate
waters. Con-
ference is
called by
Secretary of
the Interior
when he has
reason to
believe water
pollution is
crossing state
lines.
Conference is
attended by
appropriate
state water
pollution
authorities.
Those contri-
buting to or
affected by the
pollution may
recommend re-
medial action
to the state
authorities,
but he may take
no further
enforcement
action for six
months. Next
step is a public
hearing by a
hearing board
appointed by
the Secretary.
If board deter-
mines that pol-
lution is
occurring, it
may recommend
(cont'd)
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Title
TABLE 1 (cont'd)
Key Provisions
Water
Pollution
Control Act
Amendments
of 1961.
(P.L. 87-88)
Water
Quality Act
of 1965
(P.L. 89-234)
Financial
Funding
authority
of $80
million in
1962, $90
million in
1963, and
$100 mil-
lion annu-
ally from
1964-67.
Funding
authority
of $150
million in
1966-67.
First pro-
ject grants
for research
and develop-
ment on
combined
sewers.
Matching
grants for
planning.
Enforcement
that the
Secretary
order abate-
ment within
a reasonable
time (no less
than 6 mos.).
Finally,
Secretary may
ask the Jus-
tice Dept.
to bring an
action.
Federal jur-
isdiction
extended to
all "navi-
gable or
interstate"
waters. En-
forcement
responsibility
transferred
from Surgeon
General to
Secretary of
HEW.
States
required to
follow Fed-
deral guide-
lines and
develop
stream qual-
ity stand-
ards . Created
Federal Water
Pollution
Control
Authority
(FWPCA) in
HEW.
Other
Established
laboratories
for water
pollution
studies.
States also
required to
develop imple-
mentation
plans to
control the
effluents dis-
charged into
these waters
in order to
reach the
stream qual-
ity goals
expressed as
standards.
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Title
Clean Water
Restoration
Act of 1966
(P.L. 89-753)
TABLE 1 (cont'd)
Provisions
National
Environmental
Policy Act
of 1969
(NEPA)
Water
Quality
Improvement
Act of 1970
(P.L. 91-224)
Financial
Funding
authority
of $450
million in
1968, $700
million in
1969, $1
billion in
1970, and
$1.25 bil-
lion in 1971.
Federal per-
centage of
construction
costs up to
55 percent.
$1 pillion
per year
authorized
for every
year after
1971.
Authorized
$35 million
total for
implementa-
tion .
Enforcement
Use of fed-
eral enforce-
ment to abate
pollution of
international
boundary
waters.
All agencies
of the fed-
eral govern-
ment must
consider
environmen-
tal values
in the oper-
tion of
their pro-
gram. Must
prepare an
environmen-
tal impact
statement
for every
major decision
States are
still the pri-
mary enforc-
ers of water
quality
standards.
If they fail
to act, the
(cont'd)
Other
Establishment
of Water
Resources Coun-
cil. First
grants for
research and
development of
industrial
waste treat-
ment and
advanced waste
treatment gener-
ally 90 percent
of all funds
for construc-
tion of munici-
pal waste treat-
ment plants.
Statement of
national policy
concerning
environmental
values and crea-
tion of Council
on Environmen-
tal Quality (CEQ)
to protect
these values.
Repealed 1924
Oil Pollution
Act. Brought
oil and s ome
other pollutants
under better
control. Studies
in eutrophication
(cont'd)
- 71 -
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Title
TABLE 1 (cont'd)
Key Provisions
Financial
Enforcement
Secretary of
the Interior
may then set
standards
and enforce
them.
Other
and acid mine
drainage.
Environmental
Quality
Improvement
Act of 1970
Water
Pollution
Control Act
Amendments
of 1972
Additional
funding
for NEPA.
Authorizes
$1.5 million
for fiscal
1972.
Total
authoriza-
tion is $27
billion, $20
billion for
construction
of waste
treatment
works.
Federal
share of
treatment
plant con-
struction
goes to 75
percent.
Allows citi-
zen suits to
enforce
standards.
Calls for
mandatory
use of "best
available
technology"
in new
plants.
Provides an
administrative
framework for
NEPA. Creates
the Office of
Environmental
Quality as a
staff agency
for the Coun-
cil on Environ-
mental Quality,
Based on emis-
sion control
instead of
water quality
standards.
Calls for zero
discharge of
pollutants by
1985. Broad-
ens the defin-
ition of
"navigable "
waters.
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Words and terms must be defined in practice before real mean-
ing emerges. It is clear from the record that waste treatment
facilities have been the keystone in federal water pollution
control strategies. The traditional notion of wastewater
treatment management, then, has been to build physical facil-
ities for treating liquid waste. To put it another way, it
is the implementation of the utility approach, or the "end of
the pipe" philosophy. One simply determines through analysis
and forecast[l] the expected load (load as measured by volume
and quality of the wastewaters to be treated and the type of
residuals to be handled) and then builds facilities --
pipelines and treatment plants that are large enough to accom-
modate this load. On the other hand, another set of words —
water quality management — connotes a more current approach
which includes an examination of a full range of alternatives -
technological and administrative — and their costs and bene-
fits. If we take as our primary objective the improvement of
the quality of the receiving waters, then it is reasonable to
suggest that there are two general approaches to managing
liquid wastes. One is to seek methods for reducing waste
discharges; the second is developing methods for increasing or
making better use of the assimilative capacity of the stream[2]
Table 2 provides further information regarding these two basic
approaches[3] .
An analysis of the full range of alternatives required to
implement these approaches comprises the concept of water
quality management as defined and used in this report.
One can get a flavor of the Act's intent by examining selected
language within it, the sections in the Committee Report on
Senate Bill 2770, and the Conference Committee Report as well
as speeches by members of Congress. Illustrative of the
breadth of purpose incorporated into this bill, if the intent
of Congress is faithfully transmitted by Congressman Blatnik's
views, is the following quotation from a speech delivered on
November 27, 1972 to the Interstate Conference on Water Prob-
lems in Austin, Texas. Congressman Blatnik said: "We have
been talking for generations about river basin planning; every-
one who has been talking for generations about river basin
planning; everyone who has been involved in water resources
problems recognized long ago that individual project planning
is futile without a total basin plan that takes into account
both the quality and the multiple demands on all the waters
within a river basin. We hope to achieve that kind of plan-
ning because nothing else seems to make sense[4]." A further
indication of Congressional intent regarding this bill may be
found in the Senate Report to §201:
The committee emphasizes that the policy in Section
201, read with the policy stated in Section 101,
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TABLE 2
METHODS FOR IMPROVING THE QUALITY
OF RECEIVING WATERS
I. METHODS FOR REDUCING WASTE DISCHARGES
A. Methods for_Reducing Waste Generation
1. Change in type of raw material inputs.
2. Change in production process.
3 . Change in product outputs.
4 . In plant recirculation of water.
B. Methods for Reducing Waste After Generation
1. Materials recovery.
2. By-product production.
3. Waste treatment.
4. Effluent reuse (including ground water recharge,
wastewater reclamation or renovation).
II. METHODS FOR INCREASING OR MAKING BETTER USE OF ASSIMILATIVE
CAPACITY
1. Addition of dilution water.
2. Multiple outlets from reservoirs.
3. Reservoir mixing.
4. Aeration of streams.
5 . Salt water barriers.
6. Effluent redistribution (including regulated
discharge).
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requires the administrator to direct his research
and development authority under Sections 104 and
105 to carry out those policies. This statement
of policy coupled with a recruirement to consider
alternatives as a condition to federal assistance
is intended to overcome the resistance and lethargy
present in many planners in the federal agency,
state agencies, and in private consulting firms.
Planning must move beyond its present orientation
to truly integrative and ecologically sound systems.
It is expected that the administrator will give close
supervision to this effort in order to develop
integrative and comprehensive waste management
systems and technology. The administrator must
press the development of technology and do it with-
in the framework of ecological principles so
that sound systems are developed[5]. (Emphasis
added.)
Two significant indicators are available which suggest pos-
sible reasons for inadequate attempts to implement policy in
the past, first by the Water Pollution Control Administration
under the Department of Health, Education and Welfare (HEW),
later under the Department of Interior, and now under the
Environmental Protection Agency: (1) Allocation of federal
funds under the grants program has been largely arbitrary
from an economic efficiency standpoint. Since state programs
are allocated funds according to a formula based on state per
capita income and peculation. The results have been that
funds have been generously provided in some states and very
limited provision has been made in others. One of the con-
sequences of this approach is that we have a situation in
this country where fully one-quarter of the metropolitan area
waste treatment capacity is less than half utilized and nearly
20 percent is overloaded[6]; (2) Another shortcoming of the
grants program, resulting from its over-emphasis on construc-
tion of treatment plants, is the virtual absence of an appro-
priate mechanism to assure effective operation of the plants
once they have been built[7]. Financial assistance that
provides for only capital costs leaves the local governments
the problem of bearing the maintenance and the operating costs,
These are substantial and when examined over the life of the
plant, they are often greater than the initial capital invest-
ment.
One general conclusion to be drawn is that there is an inclina-
tion to rely upon an "end of the pipe" philosophy -- one which
may overlook the many advantages of alternative approaches to
simply constructing more and larger treatment plants.
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BACKGROUND - THE AREAWIDE APPROACH
One of the underlying and fundamental problems which had been
identified as a restraint to effective water quality manage-
ment is the limited political and geographical jurisdiction
of the typical wastewater management agency[8]. The nature
of water pollution is fundamentally one of a hydrological pro-
blem area which usually extends beyond traditional political
boundaries -- state, region, county, municipality, special
district, or river basin (current use of river basins as pol-
lution c::,troi areas is the closest approximation to a problem-
shed area). The basis for the areawide approach to water
quality management is that of enlarging the jurisdiction of
an administrative organization charged with wastewater manage-
ment to allow it to deal with either a whole problem or with
as mucn of one as is feasible.
In order to effectively manage the problems of extensive and
increasing pollution in the nation's waterways, a means for
internalizing the external costs is necessary. This suggests
a more comprehensive, systematic view of wastewater management
in order that both the public organization and the individual
polluter may deal with the totality of wastewater problems.
This systems approach has evolved in recent years in the dis-
cussions of the total interrelatedness of society and the
natural environment — the biosphere — upon which man and
society depend for all life support elements. Thus, with regard
to water quality problems, an areawide problem area which per-
mits a geographic approach to the physical problem of improving
water quality within a problemshed must now be transformed into
political and administrative terms. Thus, while the problem
is, on first glance, a technical One, it is clear that the
legal authority, political support and management capability
necessary to deal with areawide problems must be obtained before
the areawide approach called for in the Act can achieve its
framers' intent.
Among the examples of the type of institutional arrangements
called for above are three metropolitan agencies which were
the subject of on-site examinations for this study. These
are the Seattle Metro organization, the Metropolitan Sewer
Board (MSB) of the Minneapolis-St. Paul Twin Cities area, and
the Metropolitan Sanitary District of Greater Chicago (MSDGC),
Each has undertaken an areawide approach to wastewater manage-
ment which extends service areas across county and municipal
boundaries. Seattle extends over two counties, MSB of the
Twin Cities over seven counties, and MSDGC serves essentially
all of Cook County.
Another example, organized on the basis of a hydrologic unit,
is the Gulf Coast Waste Disposal Authority (GCWDA) . Created
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by the Texas Legislature in 1969, the GCWDA was given juris-
diction throughout the three county area encircling Galveston
Bay. At present, it is seeking to halt the proliferation of
small, inefficient and quickly outmoded waste treatment plants
through a two-stage evolution: subregional plants, then a
regional plant. Once this is fully implemented, it will pro-
vide adequate authority for instituting a monitoring and water
quality management program that can achieve improved water
quality in the Houston Ship Channel and Galveston Bay[9].
In an effort to provide assistance to the development of
guidelines to be issued by the EPA for the implementation of
§208(c)(2) of the Act, a survey was conducted of a broad range
of present wastewater management organizations and their
approaches to their particular xvater quality problems . This
survey examined a selected group of existing management organ-
izations in order to describe and identify administrative and
technical problem areas that may emerge in the reorganization
or conversion of management agencies in accordance with the
provisions of §208(c) (2). In particular, metropolitan waste-
water agencies situated in major urban-industrial concentra-
tion locations were selected for review. These relatively
sophisticated agencies have implemented wastewater programs
in a manner approximating an areawide problem concept. This
analysis will review the legal, organizational, fiscal, and
political problems of establishing areawide water quality
management agencies and integrating them with other components
of local or regional governments. Each case represents a dif-
ferent set of water quality problems, a different range of
service areas and formal jurisdictions, and a different degree
of success in meeting the wastewater management problems of
urban-industrial areas, river basins, and multi-county areas
within a state. While each set of problems were different --
Lake Washington, the Mississippi River below Minneapolis-
St. Paul, Metropolitan Chicago waterways, the Delaware River
in three states, the Miami River Basin in Ohio, and the
diverse wastewater situations across Maryland -- the criteria
for effective management in each instance were generally the
same. The discussion of each organizational arrangement in
this section provides additional examples of how the selected
agency responded to its mandate and the problems it faced.
Current institutional arrangements, the programs and their
administrative procedures are discussed on the basis of four
areal criteria: (a) less than areawide, (b) areawide,
(c) basinwide, and (d) statewide. In addition, when more
than one agency fit these categories, the particular activi-
ties of each are examined in order to bring to light the
different approaches now in use.
Specific objectives sought in this survey of management
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agencies include the identification and description of the
agency, the geographical and demographic situation, the nature
of the wastewater sources prevalent in the area or region,
and the dynamic characteristics of the administrative pro-
cess which have led to effective performance.
The effectiveness of such institutional arrangements is deter-
mined primarily by the objectives of each organization. In
the Twin Cities MSB case, this is the management (i.e., "the
collection, treatment and disposal of sewage in the metropol-
itan area") of all wastewater facilities of the Twin Cities
Area, a seven county area governed by the Metropolitan Council.
The Metro Seattle is a metropolitan municipal corporation which
has the specific function of sewage disposal in the 300 square
mile Seattle Standard Metropolitan Statistical Area (SMSA),
consisting of 11 cities, 18 sewer districts, and one private
agency. The Metropolitan Sanitary District of Greater Chicago
has responsibilities for collecting and disposing of sewage,
controlling floods and protecting the water supply of an 860
square mile area from pollution. Its service area includes
the City of Chicago and 117 surrounding communities. The
Delaware River Basin Commission (DRBC) defines its objec-
tive as the planning, conservation, utilization, development,
management and control of the water resources of the Delaware
River Basin, extending from the southern Catskills in New
York to Delaware Bay. A mission similar to the DRBC is that
of the Miami (Ohio) Conservancy District which, although pri-
marily concerned with flood control arid water supply, has
undertaken a broader goal of maintaining water quality
throughout the Miami River Basin. A final example of area-
wide objectives is the Maryland Environmental Service (MES) ,
a public corporation of the State, which provides liquid and
solid waste management services to counties, municipalities,
state agencies and industrial plants. Its primary concern
is the regionalized management of liquid and solid wastes in
all areas of the State. While it serves as a wholesaler of
collection and disposal facilities, the MES must also meet
standards set by other state agencies for state waterways,
in order to maintain stream quality standards now in force.
The MES is new and so has not yet established a track record.
It is an innovative management arrangement and as such war-
rents observation by and encouragement from the EPA.
REVIEW OF SELECTED WATER MANAGEMENT AGENCIES
The survey of existing management agencies responsible for
implementing water quality programs was concerned with the
structure and organization, the formal authority and activ-
ities, and the relationships of these agencies to the general
public and state and local government. The purpose of this
analysis of existing agencies is, therefore, the description
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of the manner in which wastewater management agencies func-
tion and the identification of the operating problems with
which these agencies must cope. Figure V-l diagrams the inter-
relationship between the management activities applied to the
subject agencies.
The sample of agencies chosen for case studies in this report
were selected from a larger list of organizations in state,
local and interstate categories. The five selected for detail-
ed study were chosen on the basis of conformance with one of
four areal categories: (1) less than areawide, (2) areawide
(SMSA), (3) basinwide, and (4) statewide. Areawide has been
defined in the preceding discussion as a Standard Metropoli-
tan Statistical Area (SMSA). The other classifications are
briefly defined below:
Less than areawide -- A geographical/political desig-
nation which comprises one or more local governmental
units over an area which is smaller than and lying
within a SMSA.
Basinwide -- A service area which incorporates all
streams and waterways which culminate in a major river
basin, regardless of local or state political bound-
aries .
Statewide -- A service area of all waterways lying
within and on the edge of any of the states in the
United States, including coastal waterways and inland
lakes which may form part of the state line.
The agencies examined were selected as representatives of the
four areal categories or classifications. While there are
other agencies which might provide part or all of the type of
information sought, the organizations chosen illustrate the
more sophisticated and progressive management arrangements
currently in existence. Thus, as examples of less than area-
wide wastewater management agencies, those from Metropolitan
Seattle, Washington and the Metropolitan Sanitary District
of Greater Chicago were used. For an agency which serviced
an area conforming or nearly conforming to a Standard Metro-
politan Statistical Area, the Metropolitan Sewer Board of the
Twin Cities of Minneapolis-St. Paul, Minnesota was chosen. As
examples of basinwide organizations, i.e., river basins within
states and river basins which extended across state lines, the
Miami (Ohio) Conservancy District and the Delaware River Basin
Commission were selected. Finally, one of the few management
agencies now in existence with full statewide jurisdiction
coupled with authority to operate at the level of local govern-
ment, e.g., counties, the Maryland Environmental Service was
chosen for detailed assessment.
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GOALS
FUNCTIONS <
> PERFORMANCE
ASSESSMENT
'MANAGEMENT
CRITERIA
CO
o
ANALYSIS OF AREAWIDE
WASTEWATER MANAGEMENT
ACTIVITIES
FIGURE V-l
-------
In order to better understand how each of these operating
agencies carry out the general activities of planning, design
and construction, operations, and regulation, four general
assessment criteria were applied: ability to generate infor-
mation; ability to provide adequate representation; efficiency;
and effectiveness.
While the problems which might be identified are very specific
in most cases, they often are the result of a set of activi-
ties which have been identified as basic to water quality
management. These include: (1) the authority to plan for
all physically related parts of one or more drainage areas,
(2) responsibility for providing wastewater treatment facili-
ties wherever needed, (3) authority to finance all water
quality facilities construction and operation, and (4) the
ability to provide for public participation in both policy
planning and management decision-making. Kneese and Bower
have identified another set of activities fundamental to
achieving efficient water quality management[10]. These
include: the ability to analyze and implement a wide range
of alternative methods; the authority and capability to in-
fluence the patterns of land use in relation to water quality
management; the implementation of both private and local gov-
ernment decisions through operation and regulation; and the
development of methods for internalizing the external costs
imposed on wastewater plants by both industrial and municipal
discharges.
These two views of activities are seen as necessary to achieve
the broader set of goals and objectives which have evolved in
the development of the areawide approach to wastewater manage-
ment. These goals include the need to (1) avoid duplicative
and overlapping facilities, e.g., pipes, treatment plants,
and related equipment for the same drainage areas; (2) estab-
lish countywide, contractual, or joint facilities, or to
create special districts or "metro authorities;" (3) achieve
joint ownership of waste treatment facilities wherever neces-
sary or desirable; and (4) arrive at flexible financing
arrangements. On the other hand, studies[11] have identified
constraints to achieving these goals and objectives such as:
(a) whether emphasis on effluent discharge control alone
results in a specific level of water quality; (b) problems of
limited technical expertise and shortages of qualified person-
nel; and (c) geographical limits on enforcement and service
area jurisdiction.
A set of more detailed measures were utilized in the examin-
ation of the past experience, while present capabilities of
each organization were drawn from various recent studies of
water quality management[12][13]. The parameters for assess-
ing a wastewater management organization discussed in these
sources include:
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1. Harmony of area and activity
2, Population base
3. Program's scope and depth
4. Legal authorization
5. Fiscal adequacy
6 . Accountability
7. Flexibility
8. Structural compatibility
9 . Contemporaneousness
10. Political viability
11. Organization structure
12. Intergovernmental linkages
13. Enforcement activities
These parameters provide a means to assess each agency on the
following aspects of their performance: (a) the internal and
external structure of the organization including its func-
tional activities, its areal jurisdiction, and the linkages
utilized between and among other units of government; (b) the
powers granted to the agency by state and/or municipal legis-
lation; (c) the statement of the mission as perceived by each
agency; and (d) the notion of responsibility of the agencies
to state, local, and other governing units including the pro-
cedures used to enable the general public to participate in
and assess the performance of the agencies.
PROBLEM IDENTIFICATION
While the requirements of §208(c)(2) provide a specific list
of criteria by which the legal capacity of areawide waste-
water management agencies can be evaluated, the problems
identified from an analysis of the experience of operating
agencies based on the assessment criteria above tend to be
less explicit and often overlapping. Among the general pro-
blems which have been identified are: (1) a metropolitan
or areawide agency or group of separate agencies ability to
be created by the local, metropolitan, or state legislature
with sufficient authority to implement and coordinate the
areawide plan for the metropolitan, or regional area. The
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experience of the Twin Cities Sewer Board is particularly
instructive in this instance; (2) the capability of an area-
wide water quality management agency for constructing an
operating facility, or providing interim facilities until a
full plan may be implemented; (3) the eligibility to receive
planning grants; (4) the capability for initiating additional
legislation when required; (5) the capability to perform,
either directly or by contract research, feasibility studies
for the entire service area and the capability to formulate
corresponding alternative approaches to wastewater management;
(6) the initiative and ability to conduct public information
and education programs; and (7) the legal and administrative
capacity to acquire and consolidate facilities to conform with
an areawide plan.
SUMMARY OFJFINDINGS
In general each of the agencies studied has the legal,
institutional and financial capability to ensure construction,
operation, and maintenance of present and forecasted areawide
wastewater treatment facilities. The Metropolitan Sewer
Board of the Twin Cities (MSB) represents a situation typical
of that found in the other agencies in that it has authority
to implement a much broader array of management policies as
well as alternative approaches to wastewater treatment. While
there are obvious limitations imposed by the availability of
resources, there appears to be a capability to carry out the
activities required by §208(c)(2). Lesser problems do exist
at present, such as limited authority to develop a charge to
individual dischargers based on factors other than volume or
BOD. However, legislation adopted in 1973 coupled with cer-
tain revisions in administrative rules and regulations
provides authority to assess a surcharge to individual dis-
chargers beginning January 1975. Further, there is a
political problem in meeting the requirement for a policy
board to include a majority of its members elected from the
general population in the areas served by the sewer service
board. Proposed legislation will provide for an elected
Metro Council with an appointed Metropolitan Sewer Board.
A corresponding problem of areal and functional harmony is
caused by the boundaries of the MSB service area which are not
presently coinciding with the larger political boundaries of
the Standard Metropolitan Statistical Area (SMSA). Although
recent legislation has given additional jurisdiction to the
MSB and to the Metro Council, the SMSA was also expanded on
the basis of the 1970 census to twelve counties resulting
in an even larger gap in jurisdiction between these two
entities.
A different type of political problem has been identified in
the review of the administrative activities of Metro-Seattle.
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Present policy with respect to user rate schedules appears
to be based on an early agreement among those individuals
and organizations, including the local governments affected,
that each participating community in the Metro wastewater
treatment system would pay a uniform charge based on volume.
This program was initiated on the concept of a common benefit
to all participants which would be paid for equally. The
requirements for proportionate share or differential rates,
§208(c) (2) (G) , raises a question about Metro Seattle's capac-
ity to meet the requirements of the Act for future construc-
tion grants. Further, while Metro-Seattle has the authority
to determine its user charges on factors other than volume
alone, it has argued that this basis is presently justified
since 94 percent of the total systems costs are determined
by the volume of wastewater treated. However, the assump-
tion that a charge based on strength of effluent will have
no effect on the volume discharged is questionable and
indeed there is strong evidence to the contrary[14] [15] .
In reviewing the experience and policies of the Metropolitan
Sanitary District of Greater Chicago (MSDGC) , several sim-
ilar types of problems have been identified. Among these are
the question of whether the MSDGC can refuse service to any
municipality or residential subdivision which did not comply
with an areawide wastewater management plan as required by
§208(c) (2) (H) . Under existing municipal and state statutes,
the MSDGC must provide service to those communities within
its boundaries as long as the technical specifications for
connecting sewers into interceptors are met. In a situation
similar to that found in the problem of requiring a propor-
tional share of treatment costs in the case of Metro Seattle,
the MSDGC presently contends that participating communities
currently meet this requirement of §208(c) (2) (G) through the
ad valorem tax structure. While the federal guidelines con-
cerning the adequacy of the ad valorem tax structure have not
yet been issued, it is possible that an industrial surcharge,
when coupled with the ad valorem tax, may provide the mech-
anism which will meet the requirements of the Act.
In examining the basin-wide agencies, both the Delaware
River Basin Commission (DRBC) and the Miami (Ohio) Conser-
vancy District (MCD), no major problems or limitations were
identified. However, in each case the question arose as to
whether the organization could require pretreatment of indus-
trial wastes by refusing to receive wastewater from any
municipality or subdivision. In the opinion of the MCD the
question is not one of legal authority but one of administra-
tive policy. Thus, while the authority may exist in each
case, it has not been exercised over the period of time the
agencies have been in existence.
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In examining the experience of a state-wide wastewater
management agency, the brief history of activities of the
Maryland Environmental Service (MES) has indicated that many
problems resulting from sub-state or local wastewater man-
agement can be alleviated and solved effectively through an
agency which, in effect, serves as a wholesaler of services
and specialized skills. The Maryland Environment Service
has legal authority to conduct the activities required in
§208(c)(2) of the Act. Currently it is involved in consoli-
dating wastewater treatment planning and management activi-
ties at both state and local levels. At this point in time
it should be noted that the most effective legal sanction
which MES has at its disposal is the authority to obtain
defaulted payments from local governments by diversion of
state revenues which are normally returned to the local gov-
ernments. Thus, the bonding and financial management role
of the MES is greatly strengthened in both the planning as
well as the implementation of existing and future wastewater
treatment facilities.
Special Problems: Financing Treatment Facilities
In general, the most complex set of problems which this
study has identified are those which deal with the finan-
cing of wastewater treatment facilities. While there are
no clear theories or solutions for dealing with these pro-
blems, the identification of such problems and tentative
approaches to their resolution are offered as a guide to
effective management for those agencies which seek to com-
ply with the requirements of the Act. The first of these
problems identified in the category of financing is that
of the responsibility for assuming existing debts when a
local treatment facility is closed to comply with a new or
revised areawide plan. The best evidence available indicates
that in situations like this, the new agency acquires the
debt responsibility since the debt must be seen as part of
the capital cost of implementing the new or revised areawide
plan. Two options are possible: pay off the debt immediately
or assume the debt on the same terms in order to avoid incur-
ring a large amount of capital costs in the early stages of
carrying out the new or revised plan.
Another problem is the question of whether a community or
the management agency should be reimbursed for an existing
wastewater treatment plant taken over by the areawide agency.
It is the opinion of the various administrators and special-
ists consulted that the group that initially obtained the
construction capital funds should be reimbursed at the time
of the take-over or transfer of management responsibility.
The experience of the Twin Cities Metropolitan Sewer Board
offers a valuable guide to situations of this type. In that
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case, the enabling state legislation gave full ownership of
all local municipalities and special districts' plants to
the MSB on the first day of the agency's operation. Each
governmental unit still was responsible for payments on its
debt obligations but full credit was given to these obliga-
tions (on a pro-rata basis) on the annual statement of charges
issued by the MSB. Thus, the revenues earned in each local
jurisdiction were available to be applied directly to the
long term debt as well as the increment of service fees due
each year to the regional agency (MSB).
Another thorny question raised by several administrators
regarding the first lien on the revenues generated by a
wastewater management agency goes to the bondholders or the
federal treasury. In this regard, recent federal regula-
tions [16] require that 50 percent of the amounts recovered
must be returned to the U.S. Treasury at least annually. Of
the remaining 50 percent, 80 percent must be applied to future
reconstruction and expansion. However, the remaining 20 per-
cent may be added to the revenue obtained from user charges to
be applied to the bonded indebtedness.
A related problem is that of delays or serious differences
in federal grant appropriations on local agency financing
arrangements. The experience of financing consultants and
management agencies indicates that this can result in (1)
delays in construction in order to get a full formula grant,
e.g., 75 percent; (2) the need to acquire short-term loans;
and (3) a phased project approach may be required as an
incremental solution to delayed federal funding. However,
the provisions for incremental grants for each stage of a
project may enable the operating agency to maintain a viable
payment balance.
Another question raised in conducting this study was: what
criteria will be used to determine eligibility of "alterna-
tive approaches" to wastewater treatment and their acceptance
in the review of grant applications? An examination of the
1972 Act indicates that a broad definition of "treatment works"
allows for a much broader range of eligible projects which
might qualify if the technical feasibility can be demonstrat-
ed[17]. This definition was already incorporated in the plans
developed by both Maryland and Metro Seattle over the past
three years. Hov/ever, several problems arise in the consider-
ation of adequate revenue mechanisms to assure that the pro-
portionate share of wastewater management costs is required
of each user. As §204(b)(2) of the Act requires that charges
should reflect all factors which affect the cost of treatment,
e.g., strength, volume, and delivery flow rates, it is apparent
that a rate structure based on volume alone will not qualify
for grants. Therefore, all applicant agencies must review
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their existing rate schedules in view of this requirement
While specific regulations prohibiting it have not been
issued, it is the opinion of the authors that the tradi-
tional ad valorem tax is probably not an acceptable
mechanism to insure proportionate sharing of wastewater
treatment costs. Further, it is questionable whether
regulations developed by the EPA will permit variations
such as the combined use of ad valorem taxes and rate
structures based on volume and strength characteristics.
There has been concern over the basis by which small commun-
ities and municipalities using a regional or areawide waste-
water system might determine their proportionate share of
treatment costs; in particular, whether the requirement for
proportionate sharing of costs dictates differential rates
among all participating communities in all cases. The
evidence obtained from the agencies studied, administrators
of operating agencies, and specialists in the field of finan-
cing, suggests that "any reasonable and equitable plan" for
recovering operation and maintenance costs from user commun-
ities should be favorably considered by the EPA. The criteria
to be considered here include the total annual revenues needed
for operation and maintenance, debt service, the number of
persons and industries served, the number of incorporated
communities, and related developments in the agency service
district. On this basis, each community would pay an amount
equal to the actual cost of treating the residential waste
and the industrial waste arising from that community. The
use of a "volume-strength-time flow characteristic" formula
will clearly lead to differential rates among each commun-
ity discharging wastewater to an areawide facility; conse-
quently, this provides the rationale for "proportional share
allocation of costs." A second factor to be considered in the
the charge and/or rate structure is the distance between the
entry point of a regional wastewater facility and the exit
point of a user community or industry. Here, the operation
and maintenance costs, as well as the initial construction
of interceptors, may require differential rates. In summary,
there is evidence to support differential rates, yet prece-
dent and political expediencies may result in a compromise
in order to more rapidly achieve a viable regional or area-
wide wastewater management system and organization. It is
our recommendation that every effort be made from the earli-
est point in drafting an areawide plan to implement a
differentiated rate structure. Recent Federal Regulations
published pursuant to §204(b) of the Act indicate that
communities will not be permitted not to share costs
proportionately[18].
What methods are available for wastewater management agencies
to recover the industrial portion of costs in order to meet
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the requirements of §208(c)(2)? In discussing this question,
several arrangements were mentioned, the more feasible of
which are examined here. From the data supplied by several
administrators and consultants, the following approaches
emerged:
1) A general (flat-rate) assessment combined with a
surcharge, which is determined on a volume-strength-
time flow basis; or a general assessment with a sep-
arate hook-on fee which may be structured so that it
spreads the recovery of capital costs over the life-
time of the treatment facility. This combination or
a variation of it is useful in maintaining a control
over the inflow of wastewater plants as well as pro-
viding for an adequate recovery of costs.
2) A full cost recovery user charge in place of the usual
user charge. The charge based on the type of effluent
discharge reflects the "price" of handling specific
effluents and can be seen as part of the cost of doing
business for the industrial discharger. If it is set
higher than the average cost of waste treatment, it
may also serve to stimulate changes in the manufactur-
ing process or in the choice of materials used. This
follows the concept that industries should be encour-
aged, by incentives, to prefer goods or services,
including the process utilized, which pollute less by
use of a production cost mechanism. However, deter-
mining the basis of such effluent charges will result
in a significant information cost which must be taken
into account.
3) A user charge alone may offer an administrative mech-
anism since the effluent charge can be combined with
a pro-rated cost derived from a volume-strength-time
characteristic formula; and
4) The sale of a "discharge certificate" may also offer
a more acceptable device, since this would provide
control over the amount of the public good (the
assimilative capacity) which a private firm could be
permitted. Economists argue that polluters (indus-
trial or residential) would have a strong incentive
to decrease their costs by reducing the number of
"right to discharge" certificates required[19].
A problem mentioned by many administrators is the question
of how a grant applicant might demonstrate financial capa-
bilities for undertaking wastewater treatment facilities and,
in addition, show evidence of the agreement to pay the non-
federal cost of waste treatment facilities. The most obvious
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approach to satisfy this requirement is to provide legal
documentation of all authority permitted by state and local
legislation for raising revenues by either borrowing, assess-
ing user charges, and/or accepting grants.
Finally, the "non-permanent" nature of industrial wastewater
dischargers has also been identified as a problem which faces
the financial management of the areawide wastewater agency.
The question arises as to whether the long-term contractual
agreement for treatment of a pre-determined level of effluent
can be transferred or must it become a nontransferrable
charge against the assets of a firm. The respondents to our
questionnaires and individual administrators have indicated
that it is reasonable to negotiate a transferability clause
with any industrial user since the record historically is
quite clear on the probability of small businesses failing,
regional industrial plants relocating, and manufacturing
operations centralizing. If a reasonable projection of the
wastewater discharge load can be defined, then both the treat-
ment agency and the user benefit of the "long-term discharge
rights" are free to be sold to other firms which may replace
the original organization. It is clear that from a financing
perspective, the willingness of firms to commit themselves
to long-term contracts is essential if that firm contributes
a substantial amount of the wastes to be handled by the area-
wide facility. Therefore, when a long-term commitment is
justified, the industry should also have the right to dispose
of its contractual treatment "rights." Further, the ability
to sell or lease these discharge rights should enhance both
the firm's decision to make a long-term commitment and the
water management agency's financial plan so that it can be
reasonably assured of revenues over the lifetime of the facil-
ity and the long-term debt commitment.
While this list of problems is far from complete, we feel
that it identifies the major concerns and experiences of
those organizations included in our survey. The sugges-
tions for resolving the problems are more fully explored
in the following section in the discussion of institutional
models for areawide water qualtiy management. Specific
conclusions and recommendations are found in Sections I and
II of this report.
SUMMARY
Proposed guidelines issued by the EPA[20] require firm
written commitments from major industrial users. Adequate
management ability is also required, which might consist
of evidence of personnel presently on the staff, the actual
facilities available, accounting procedures and agreements
with other governmental units. Experience alone may not be
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adeauate, however, since the management of regional or area-
wide facilities, integrated water-solid waste treatment
plants, or industrial pre-treatment facilities may be beyond
the capability of older, smaller, "public works" departments.
The primary rationale behind an areawide wastewater management
agency is its ability to incorporate both technological skills,
financial expertise and credit, economies of scale in physi-
cal facilities and responsiveness both to the requirements
of basin or state plans and to the values and needs of the
general public. Thus, the areawide approach allows incorpor-
ation of economies of scale as well as encourages the explor-
ation of the most advanced technology available and/or
practicable over time.
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SECTION V
NOTES
1. A major source of controversy concerns the question of
whose forecasts of such parameters and population and
industrial development are to be used in planning and
design phases.
2. The authors recognize that the use of assimilative
capacity as a means of water quality management is
counter to correct EPA policy, however, it remains an
option worthy of consideration in our judgment.
3. Allen V. Kneese and Blair T. Bower, Managing Water
Quality: Economics, Technology, Institutions, Resources
for the Future, 1968, p. 42.
4. "Stop Fragmentation of Planning Efforts - Blatnick,"
Communicator, Great Lakes Basin Commission, Vol. 3, No. 7,
January, 1973, p. 2.
5. Committee on Public Works, Federal Water ^Pollution Control
Act Amendments of 1971, Senate Report No. 92-414, October
28, 1971, pp. 24-25.
6. Environmental Protection Agency, Cost of Clean Water:
Cost Effectiveness and Clean Water, Vol. II, March, 1971,
p. 72.
7. Report by the Comptroller General of the United States,
Need for Improval Operation and Maintenance of Municipal
Waste Treatment Pj^ants^, (Washington, D.C.; General
Accounting Office), September 1, 1970.
8. U.S. Senate. Report of Committee on Public Works. Federal
Water Pollution Control Acts of 1971; with supplemental
views to accompany S.2770. October 28, 1971 (Report
No. 92-414), p. 36.
9. "Managing Regional Water Treatment Systems," Environmental
Science and Technology, 6 (Number 5), May, 1972, pp. 402-403
10. Allen V. Kneese and Blair T. Bower, Managing Water Quality:
Economics, Technology, Institutions, Johns Hopkins Press,
1968, Chapter 14.
11. William Hines, Public Regulation of Water Quality in the
United States, National Water Commission, Legal Study
No. 18, December, 1971.
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12 . NACO , Community Action Program for Water Pollution Corvtrol ,
Washington, D.C., July, 1967, pp. 33-34.
13. M.B. McPherson, (ed.), Prospects for_Metropolitan Waste
Management, Urban Water Resources Council, New York; 1970.
14. Joseph M. Grant. "How Local Communities Can Meet the
Financial Obligations to Accomplish the National Environ-
mental Goal," Engineering Issues - Journal of Professional
Activities, ASCET^/ol• 99, No. PP2 Proc. Paper 9663,
April, 1973, p. 162.
15. Ray E. Shaw, Jr., "Experience with Waste Ordinance and
Surcharges at Greensboro, N.C.," Journal of the Water
Pollution Control Federation, 42 (No. 1), January, 1970,
pp, 44-50.
16. U.S.E.P.A., "User Charges and Industrial Cost Recovery,"
Federal Regulations, May 22, 1973, Vol. 38, No. 98,
Part II. pp. 13525-13526. (40 CFR Part 35, Subpart E,
Sec. 35. 928-2) .
17. PL 92-500, Sec. 212.
18. Ibid, Federal Regulations, Subpart E, Sec. 35.925-11
and "Appendix," pp. 13525-13526 .
19. J.H. Dales, Pollution, Property and Prices: An E^ssay
in Policy-Making and Economics, University of Toronto
Press, 1968, Chapter VI.
20. Ibid, Federal Regulations, Sec. 35.925-11 (b), p. 13525.
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SECTION VI
INSTITUTIONAL MODELS FOR
AREAWIDE WATER QUALITY MANAGEMENT
INTRODUCTION
The purpose of this section of the report is to develop three
models for water quality management -- an areawide model, a
basinwide model, and a regionalized state model. These models
emerge as a synthesis of this study in that they incorporate
features gleaned from the literature and from a review and
analysis of existing management entities. The models are
"ideal" in the sense that they are designed to meet the eval-
uative criteria used in this report.
Four criteria were used to evaluate institutional arrangements
for water quality management. These criteria are (a) informa-
tion generation, (b) representation, (c) efficiency, and (d)
effectiveness.
Information Generation: An organizational arrangement for
public management of water quality must have the capability
to develop and disseminate broadly data related to a wide
range of technical and management alternatives, their costs,
and their consequences. Further, public institutions should
initiate plans, develop policy alternatives, and carry out
analyses for water quality management which reflect the per-
ceptions of water quality problems and value preferences,
i.e., the differences in individual perceptions of water
quality problems held by those citizens affected by areawide
programs. The introduction of new, issue-relevant knowledge
as it relates to the range of problems in wastewater manage-
ment is basic. It can be ecological, economic, legal, ad-
ministrative or technological, but the generation of such in-
formation is crucial for policy content, organizational struc-
ture, and administrative performance. The acquisition of the
widest range of knowledge is vital and thus is a primary ele-
ment in the overall effectiveness of a public organization.
The most common methods of generating this information include
compiling historical experience, census data analysis research
and development, planning, developing educational programs,
and economic analysis of all costs and benefits in each prob-
lem.
For water quality management to be successful, every attempt
must be made to augment.policy with adequate information for
decision-making criteria. Thus, the range of activities
which lead to the generation of adequate information include:
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9 Establishing quality standards, monitoring
and control measures;
9 Evaluating external (social) as well as
internal costs;
9 Measuring future human needs as well as
present ones;
9 Prior evaluation of actions (technological
or administrative) in terms of ecological
balance and species survival;
® Broad public participation in environmental
policy so that decisions represent, as much
as possible, a consensus of the subjective
trade-off analysis involved.
Representation: A member of a legislative assembly who is
assumed to speak for, and safeguard the interests of, the
people of a geographic or other constituency who elected him
is carrying out a representative role. In practice, members
are usually required to reside in the districts they repre-
sent; they attempt to secure patronage and administrative
favors for their constituents; and their legislative atti-
tude is greatly affected by the temper of electoral and pub-
lic opinion in their respective districts.
In the models discussed in this section, the criterion of
representation reflects this concept and is applied to the
notion that areawide management agencies should be guided by
policies which are determined either in state legislatures,
county boards of commissioners, or metropolitan/city councils,
in which each elected member is expected to weigh the entire
range of public values -- both social costs and benefits --
in his policy decisions and program choices related to water
quality management.
Our use of representation in this section is intended to em-
phasize the need for citizen participation in policy deci-
sions related to areawide waste water management, through
elected public officials who participate with full authority
in all policy decisions, whether in the Board of Public Works,
Board of County Commissioners, town council or Regional Water
Resources Boards, to name a few. The degree of representation
can be measured by determining whether all citizens in an area-
wide wastewater problem jurisdiction have equal representation
on the policy board, i.e., whether they are represented by
elected officials who represent equally apportioned districts
within the problem area.
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Efficiency: Institutional arrangements should be capable of
weighing external cost/benefit effects of decisions. The
arrangement should foster the accomplishment of water quality
goals in the light of physical, chemical, and biological
characteristics of water quality, available technology and
human behavior. This means that the institution must be
adaptable to both the specific physical situation and avail-
able technology. In the more narrow but common useage, ef-
ficiency means achieving the maximum results with the mini-
mum use of resources.
Effectiveness; Implementation of wastewater management plans
through institutional arrangements must offer promise of
achieving the results sought (goals), within the period of
time specified for each project, whether the task is con-
struction of facilities or a management study. Effective-
ness can be assessed by both objective and subjective indi-
cators of output such as: realization, complete or to a
substantial degree, of program goals; high output; ability
to absorb changes and remaining up-to-date in technology
and managerial skills; and preservation of agency resources,
both human and material.
WATER QUALITY MANAGEMENT MODELS
The Act calls for the development and implementation of
"areawide waste treatment management plans" [§208(a)] and
the Governor of each State shall designate "one or more waste
treatment management agencies. . .for each area designated
under Subsection (a) of this section. ..." [ § 208 (c) (1) ].
The purpose of this section is to develop three models for
areawide waste treatment management agencies, based on the
specific criteria of §208 (c) (2). These models are derived
from several general models of metropolitan water manage-
ment agencies which have been developed in past studies
dealing with the technical, legal, administrative and eco-
nomic aspects of water quality management[1].
Each of the three "idealized" models have been developed in
terms of: (1) the technical functions essential to effec-
tive water quality management; (2) the formal organizational
arrangements, both internal and external; (3) the adminis-
trative processes: authority, legislative mission, goals,
and decision-making procedures of a management agency; and
(4) the political responsiveness of the institution, e.g.,
representation of, participation by, and accountability to
those who may be affected by areawide wastewater policies.
More recent studies have brought together several current
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technological, economic, and political considerations that
are relevant to the problems of water quality management. A
generalized model of this recent approach is shown in Figure
VI-1[2] .
Defining the level of water quality to be
achieved and the optimal combination of
measures to achieve it, within the context
of overall water resources management will
be of no avail if there is no adequate or-
ganization or institution or agency to
implement the system and carry on the bundle
of activities involved in water quality
management [3] . (Emphasis added.)
The key word here is "adequate," and it is this requirement
which is at the heart of the three areawide models examined
below. Thus, agencies with the authority to plan and imple-
ment management programs on an areawide or basinwide basis
would be responsible for utilizing previously developed plans,
the design and construction of facilities, day-to-day opera-
tion of facilities, monitoring water quality and discharge
sources, and conducting research. Given these functions and
the relevant problemshed as its jurisdiction, the optimal
management agency should be able to satisfy the six principles
suggested for evaluating regional water quality management
agencies[4]:
1. The regional agency should internalize the
major externalities associated with waste
discharges to the watercourses of a region.
2. The regional agency should be able to implement
all relevant measures to improve water quality.
3. The regional agency should be able to take
adequate account of the interrelationship be-
tween water quality and other aspects of water
resource development and use.
4. The regional agency should be able to take ad-
equate account of the interrelationship between
water quality management and land use manage-
ment.
5. The regional agency should be able to take ade-
quate account of the interrelationship between
water quality management and impacts on other
aspects of environmental quality.
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6. The regional agency should provide an op-
portunity for affected parties to have a
voice in decisions.
WATER QUALITY MANAGEMENT
includzng monitor
sions on what
structural
and non-
structural
measures to
put into use
when and
where)
Research
and
Data
Collection
OPERATION
set standards
establish
inspection
procedures:
devise proce-
dures for
levying
charges)
(pushing buttons, closing/open-
ing gates, making inspections.
operating reservoirs and
treatment plants.
levying charges)
FIGURE VI-1
Three models for managing water quality that appear capable
of satisfying the evaluative criteria delineated in this re-
port as well as meeting the requirements of the Act are the
areawide model, the basinwide model, and the regionalized
state model. The evidence obtained through this study has
suggested that while the majority of functions, structural
arrangements, administrative processes and political re-
sponsiveness in each of these distinct types of organiza-
tions are very similar, there are distinct differences in
each case. This section will discuss each of the three
models within the context of these four major character-
istics in order to highlight these similarities and dif-
ferences .
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Areawide Model
The first model -- an areawide water quality management
entity -- is drawn from the definition of "areawide" used in
this report. Therefore, as used in the Act, this refers to
the areas in and around metropolitan urban-industrial concen-
trations. The principal activities or functions of a manage-
ment agency would be areawide planning, financing, design and
construction, and operation and maintenance[5].
Functions
Planning for the areawide jurisdiction is most often carried
on by a centralized planning office in the metropolitan gov-
ernment. For example, the Metropolitan Council of the Twin
Cities (Minnesota) provides areawide development planning as
well as resources management planning. In this case, the
Metropolitan Council was created by the state legislature and
is responsible to it through the 15 part-time citizen members
appointed to make up the actual policy-making Council. The
Council has jurisdiction over an entire seven county area,
within the 10 counties which comprise the actual SMSA. The
planning department reports through the executive director to
the Metropolitan Council and interacts actively with the
operating departments such as the Metropolitan Sewer Board
(MSB) [6]. Specific policies for wastewater management are
developed by the MSB Advisory Committee.
In addition to short and long range planning, an Areawide
Water Quality Management agency will be responsible for: 1)
the operation and maintenance of all physical plants in-
cluding the determination of personnel qualifications,
training, and maintenance; 2) management of the laboratory
facilities required for monitoring and testing of water qual-
ity, including fixed and portable monitoring stations used to
obtain ambient water quality measurements; 3) the data col-
lection and biological-chemical analyses; 4) research, system
model development and identification and control of non-point
sources; and 5) the regulatory activities, such as permit is-
suance, continuous monitoring of industrial and other major
discharges, and initiation of enforcement proceedings when
violations have been determined.
Formal Organization
The formal structure developed by an areawide agency would
normally include functional departments and divisions such as
administration, business services, financial management or
comptroller's office, construction, engineering, quality con-
trol, and operations. In addition, there should be a labora-
tory division which may report through the quality control
-------
department and may include one or more physical buildings and
facilities. This organizational arrangement is designed
primarily to implement policy decisions and areawide waste
treatment plans. One specific authority which should be in-
cluded in any proposed legislation for regional agencies is
the mechanism for acquiring ownership of existing facilities;
in this regard, the Act establishing the Metropolitan Sewer
Board of the Twin Cities offers an instructive example[7].
A typical areawide organizational arrangement is shown in
Figure VI-2.
Administrative Processes
In addition to the internal management procedures, the re-
lationship between an areawide water quality management agen-
cy and other organizations at the state, regional, and metro-
politan or local government levels are also major considera-
tions in the institutional model. Typical relationships or
linkages will include a) planning and operating activities on
a day-to-day basis with those community or county governments
which participate in the areawide wastewater system; b) the
relationship with the parent metropolitan council or area
government, including both the cooperative planning activities
and the budgeting process; c) the relationship with the State
pollution control or water quality agency with which the
areawide organization must continually maintain a close com-
munication in order that all program plans, design of facili-
ties , and regulatory activities comply with the state regu-
lations and statewide or basinwide plans; d) the relationship
with the Federal Government, especially with the Environment-
al Protection Agency, and to a lesser extent, the Department
of Housing and Urban Development; e) the on-going contacts
with major industrial dischargers regarding industrial waste
treatment as well as local governments to keep abreast of
community or residential developments which require continual
assessment of the wastewater loads imposed upon the system;
f) the external relationship with the metropolitan council
and/or the state government department in which the overall
performance of the areawide wastewater management agency is
assessed. What is important in all of these relationships is
a continuous interchange of goal statements, plans, and water
quality reporting, as well as the more obvious budgetary
audits and program schedules. Thus, a combination of 1) in-
ternal evaluations by the operating agency, to determine if
they are in fact achieving the objectives for which they were
created, and 2) external evaluations, to determine if the
state water quality standards are being achieved as specified
in federally-approved statewide plans, are necessary.
Further, it is most important that a continuous program review
be provided to determine whether these objectives are being
achieved in an efficient and equitable way. For areawide
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AREA GOVERNMENT
(Metro or Council of Gov'ts
Chief Admin.
Advisory
Committee
o
o
PLANNING
RESEARCH
(Policy and
Scientific)
LEG
AL GEN. A
DMIN . ENGINE
IERING REGUI
_, AT IONS EN1
vTTR. PUB
LIC
& & SCIENCES INFO. &
FISCAL. ENFORCEMENT EDUC .
AREAWIDE MODEL
FIGURE VI-2
-------
organizations, performance assessment should be primarily a
responsibility of the state government. Although the "watch-
dog role" is clearly recognized as a necessary function of
government, if effective water quality management is to be
achieved, performance assessment does not yet appear to have
been given the priority it deserves, except at the federal
level. Two notable exceptions are those in Illinois and
Minnesota. Illinois has statutory provision for citizen's
actions before the Pollution Control Board, in which legal
and technical assistance is provided by the Illinois Environ-
mental Protection Agency, while Minnesota recently passed
legislation permitting citizens' lawsuits for injunctions
against alleged polluters and the right to sue to enforce
regulations or standards of the Pollution Control Agency.
Political Responsiveness
Effective water quality management involves the dynamics of
policy-making, implementation, and assessment. The two cru-
cial elements which our survey indicated are: 1) that ade-
quate institutional mechanisms be provided whereby problems
may be identified, citizen demands may receive an adequate
response, and questions of equity and efficienty may be raised
by all classes of waste dischargers; and 2) that clearly
understood channels of informal communications be established
for those local governments for whom the cost of disposing of
wastewater is a significant part of their operating budgets.
Major policy choices or program decisions are a critical step
in the effective management of water quality organizations.
While in the past typical areawide water quality organiza-
tions have been governed by a board, council, or commission
normally comprised of appointed members from the area served,
there is increasing evidence of interest in a policy board
comprised partly or wholly of elected representatives of the
different jurisdictions affected by the activities of the
water management agency. Thus the decisions which determine
both objectives and implementation strategies will emanate
from a broadly representative legislative council or policy
board in such a manner that policies dealing with water
quality as a management service will more accurately reflect
the changing circumstances and values of the general public
served. Further, it will assure consideration of the trade
offs between other sectors (education, transportation, for
example) as well as within the environmental management sec-
tor (air, water, for example). With regard to the Act, all
areawide wastewater management agencies should review the
makeup of their policy board since it is clear that the Act
strongly suggests that these boards include elected officials
from general purpose governments in the jurisdiction of the
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areawide wastewater management agency. However, the final
decision in this structuring may be left to Governors of the
states.
In addition to the formal aspects of representation as one
measure of responsiveness, the needs of the organization and
the wishes of the general public will also be better met if
the decision-making processes at all levels in the areawide
water quality management organization are readily accessible
to public participation. This refers to open hearings for
rules and regulations, enforcement proceedings against vio-
lators , and citizen's complaints. Further, other governmental
agencies, both local and metropolitan, should be included
either through membership on advisory panels or commissions,
or by representation on the governing council of the metro-
politan area. The case of the Metropolitan Council of the
Twin Cities is significant in this regard in that a council of
15 members having responsibility for broad policy decisions
draws on a large number of advisory and statutory boards or
committees in order that a wide range of issue-relevant in-
formation may be continuously brought to its attention and to
allow trade-offs among various sectors to be considered by
all departments and interested parties.
In another instance, the Seattle Metro government suggests a
variation of this arrangement. It is governed by a Metro-
politan Council representative of the areas in its jurisdic-
tion, made up of 36 members -- mayors, city councilmen, county
commissioners and independent representatives. The Metro
government serves areas outside of its political boundaries --
King County -- and seeks to provide for unofficial represen-
tation from these areas as well as from within King County.
In brief, through the inclusion of elected representatives
on the Metro Council and the requirements that any new ser-^
vice areas, additional functions or approval of bond issues,
and/or tax levies be placed before the voters, the general
public has a wide range of access to policy planning and
management.
In summary, the nature of an organization designed to provide
wastewater management for an area of industrial and urban
density which meets the requirements of §208(c)(2) for "area-
wide water quality management" requires the ability to manage
effectively all facilities required to maintain water quality,
the functional divisions and skills to develop policies which
incorporate the full range of individuals, governmental, and
industrial interests in its jurisdiction, and the capacity to
develop long-range plans for the area within its boundaries.
In particular, this should include a formal participation in
the planning process at state and regional levels by the
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areawide planning organization. The unique features of an
areawide agency are primarily those brought about by the fact
that its jurisdiction may cut across hydrologic boundaries on
one hand and yet includes the total problemshed in which large
numbers of water users and waste dischargers are located.
Thus the management institution should provide for the
broadest range of public and private inputs to achieve a
level of responsiveness which reflects the needs of the pub-
lic within the area it serves.
Basinwide Model
A second type of institutional design for water quality man-
agement is the basinwide agency. Examples are the Miami
(Ohio) Conservancy District, an intrastate basin arrangement
and the Delaware River Basin Commission, an interstate basin
arrangement. The intrastate basinwide water quality manage-
ment agency is characterized primarily by the fact that its
activities are provided within and across several political
jurisdictional boundaries in one state. Thus its service
area extends beyond any single county or city and includes
both commercial and industrial dischargers as well as muni-
cipal dischargers, non-point sources, and generally, all
wastewater producers using a specified river basin.
Functions
In particular, the functions of a basinwide agency are more
numerous than an areawide organization, and yet a larger por-
tion of these may be delegated to areawide agencies, township
or county governments along the basin. In the case of the
Delaware River Basin Commission, the primary objective up to
1972 has been flood control and low-flow augmentation to in-
sure adequate supplies of irrigation and drinking water along
its basin. These activities require almost the same skills
and administrative capabilities as an areawide agency --
engineering, financing, operation and maintenance, and legal.
However, if such an organization is to be responsible for
wastewater management it will also require sanitary engineers,
water quality specialists, system analysts and economist-
planners .
Formal Organization
Since the problems of planning and operating the facilities
necessary to achieve water quality in a river basin determine
the structure and the administrative procedures of an effec-
tive management agency, an institutional model based on a
river basin must take into account both the interests and
capabilities of county and municipal governments lying in
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the basin controlled by the agency. Furthermore, authority
to set satndards, locate facilities , and oversee planning and
construction schedules and discharges must be clearly dele-
gated between local, basinwide, and state level management
and regulation. The organizational structure of such an
agency should, therefore, include not only the required
functional divisions to perform technical and administrative
activities but should incorporate a direct linkage with the
local communities and also with the state water quality man-
agement agency. Thus, while a river basin may include all or
part of a SMSA, there must be a mutually agreed upon approach,
both in planning and in regulation, to achieve water quality
management at the intersection of the SMSA boundaries and
the river basin. This poses particular problems of represen-
tation which are discussed more fully below.
The basic elements of the institutional design then, should
include the following: a) advisory board, of which a major-
ity would be elected from the general public or appointed from
elected members of general purpose governments throughout the
basin; b) a board of technical consultants or advisors who
would not necessarily live in the river basin jurisdiction
but would have technical, economic or legal expertise and an
understanding of the water management problems of the entire
state; c) an executive director or manager with the appropri-
ate staff functions under him including financial, administra-
tive, engineering, and policy planning. As a minimum this
organization should have the authority to developing basin plan,
design and construction, operation, and maintenance; in par-
ticular it should have the authority to assess charges, issue
bonds, borrow money, and accept grants from outside sources.
A typical basinwide organizational arrangement is shown in
Figure VI-3.
Administrative Processes
Although the basic activities required for managing water
quality are the same for a basinwide agency as they are for
an areawide, statewide or interstate arrangement, there are
problems of overlapping jurisdictions that will arise because
the basin boundaries are defined by geographic or hydrologic
criteria, often resulting in the division of a political
entity, such as a county or township. Thus the delineation
of service areas, as well as specification of services to be
provided, should be included in all basinwide water manage-
ment planning activites. Further, the design and construc-
tion of both water supply or protection facilities, e.g.,
flood control systems and reservoirs, as well as wastewater
treatment facilities must take into account the entire river
basin system. In one respect, this simplifies the problems
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MULTI-GOVERNMENT COMMISSION
OR
COUNCIL
EXECUTIVE
DIRECTOR
TECHNICAL
CONSULTING
COMMITTEE
o
Ul
ADMINISTRATION
&
FINANCIAL
PLANNING
&
POLICY ANALYSIS
CITIZENS
ADVISORY
BOARD
ENGINEERING
&
PROGRAM
MANAGEMENT
ENVIRONMENTAL
SCIENCES
AND
LABORATORIES
DISTRICT OFFICES AS REQUIRED
(To Manage Sub-Basins)
BASINWIDE MODEL
FIGURE VI-3
-------
of water quality management since a single agency has juris-
diction over municipal and industrial dischargers throughout
the entire length of the river basin. The chief advantage
here lies in the fact that once a system model of water quan-
tity and quality requirements of the total river basin can be
developed, the acceptable levels of discharge at any point
along the length of the river basin can be determined both in
terms of the water quality sought and in terms of the seasonal
conditions which exist on the river, including allowances for
ground water requirements. Since the collection and disposal
of wastewater and its by-products are more broadly dispersed
geographically than in the metropolitan case (urban-industrial
concentration), the basinwide agency would require a larger
technical staff to develop and operate the facilities required
for water quality management, flood control, streamflow regu-
lation, irrigation, and general water supply, and to adminis-
ter non-structural measures as well. Further, it must include
specialists such as economists, ecologists , lawyers and en-
gineers to implement discharge requirements permits and stream
quality standards, and to negotiate regulatory agreements with
all governmental units within the basin.
While the example provided by the Miami Conservancy District
(MCD) is only one approach to this particular form of organ-
ization, it is instructive in that it represents a situation
found in many river basins across the United States. Although
there appear to be several practices of MCD which may not at
present meet the explicit requirements of the Act, particular-
ly its regulatory authority, organizational jurisdiction, and
representation in the makeup of the governing board, the MCD
has the necessary legal authority to carry out wastewater
management activities in the Miami River Basin. With the
recent creation of the Ohio Environmental Protection Agency,
it is not clear at this time whether the State agency or the
MCD will undertake enforcement activities, basinwide planning,
or construction and operation of facilities for wastewater
treatment.
A basic problem in administering a basinwide organization is
the question of jurisdiction. The range of regulatory mech-
anisms available to such an agency must also be carefully
examined while the institutional form is under consideration.
It is clear that the enforcement role of the basinwide agency
should be broad enough to initiate enforcement proceedings
and assess penalties for violations of plans and standards;
there is also the need to provide access for individual citi-
zen's complaints from those affected by its decisions. It is
probable that in many states additional legislation is re-
quired to supplement the enabling legislation of existing
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basinwide districts or authorities. Further, adequate en-
forcement authority to ensure compliance with a regional
waste treatment plan must also be provided, since the use of
regional facilities is the key to controlling water quality
within the basin. The control over the discharge of waste-
water from all other sources, e.g., non-point, is also neces-
sary in order to achieve the quality desired throughout the
entire basin.
Underlying these regulatory activities, there is an obvious
need for providing adequate public education and an advisory
staff to assist local governments and planning units in de-
veloping their particular plans and facilities in order to
insure integration with the basin plans and the statewide
water quality plans. An innovative approach would include
the use of closed-circuit television between offices and cen-
tral computing facility accessible by all users. While the
concept of an areawide or basinwide water quality management
organization is relatively new, it is clearly the intent of
the Act to create this type of organization and the require-
ments of §208(c) (2) offer a set of general criteria upon
which to base the organizational design.
The primary difference in the organizational and administra-
tive aspects of the basinwide approach and the areawide ap-
proach lie in the additional number and complexity of linkages
and relationships which the basinwide organization must de-
velop with the different units of governments in the basin
jurisdiction. Many smaller towns and municipalities may not
accept regional or basinwide planning, much less routine op-
eration of treatment facilities, or legal and economic sanc-
tions against the local industry. Thus, provision for inte-
gration of local development plans, environmental plans, and
financing must be made in both the basinwide planning organi-
zation and the basinwide management agency in order that the
provision of managerial resources are seen as desirable
rather than "outside meddling" in local affairs. This re-
quires a sensitivity to local problems which is difficult to
achieve yet necessary if a basinwide wastewater management
agency is to successfully undertake implementation of river
basin water quality plans. The primary attitude should there-
fore be one of "What skills can we offer?" rather than one of,
"These are the rules and regulations which must be complied
with." This is the challenge facing a management agency
shaped according to the basinwide model.
Political Responsiveness
The question of responsibility to the general public and to
the communities within the basin is of particular importance
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in discussing a model for water quality management. While it
is desirable that the general public should elect the members
of the governing policy board, there should also be provi-
sions in the organizational design where appeals can be made,
complaints heard, and proposed standards or rules debated,
questioned, or formally appealed. The concept of a "Conser-
vancy Court" as utilized in the Miami Conservancy District
organization provides one way of meeting this requirement;
the open learning procedures of the Illinois Pollution Control
Board e-.re another.
Although the MCD Conservancy Court has been criticized as
technically unable to decide on questions of water quality as
opposed to quantity and also as unresponsive to citizen's re-
quests for a more aggressive water quality orientation, it
does provide "outside" review by elected judges. Therefore,
the intergovernmental dynamics between state and local govern-
ment on the one hand, and between these units and a basinwide
water quality management agency on the other must allow for
expression of public interest demands, industrial users needs,
and for continuous review and updating of the approaches used
to achieve water quality. Finally, in any organization de-
signed to achieve water quality in a river basin system, the
authority given to regulate the wastewater discharges of both
municipal governments, industrial plants, agricultural sources,
mining, construction, recreation areas or unincorporated com-
munities is critical. Broad authority to require pretreatment
of certain types of wastes, assure compliance with areawide
and/or statewide plans, and design, construct, operate and
maintain wastewater treatment facilities and Other related
facilities is necessary if the water quality of the entire
river basin is to be maintained by the basinwide management
agency. Again this may require in some states, new legisla-
tion to supplement existing authority.
In summary, while the majority of functions and organizational
structure are not significantly different from the areawide
water quality management model, the characteristics of a sub-
state regional management agency do create a special set of
problems which must be considered in establishing a manage-
ment agency of this type. One feature not stressed above but
while should be included in the creation of such an agency is
the provision for assessment of the agency's performance by
both the public in the area which it serves and the state
government. Clearly this is necessary in order to insure
compliance with regional and statewide plans and also provide
equitable and efficient implementation of these plans with
regard to the gei eral public.
Thus, in an assessment of the basinwide approach, there are
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several advantages: control of an entire basin, cost-
effective location of facilities, advisory services to local
governments, and provision of a broader base for financing
not available to small units of government. These are con-
fronted by the difficulties of administration of a large
geographic-hydrologic problemshed: communication, local
autonomy, economic development and public participation. On
the basis of this analysis of approaches taken for the major
river basins, this model offers significant advantages over
existing local wastewater management agencies, assuming it is
a clearly stated goal to achieve water quality in the river.
Regionalized State Model
A third model of a water quality management organization is
that in which the authority of the state agency extends to
regionalized and local management operations. This statewide
form of a management agency appears to offer several advan-
tages over the traditional local government single purpose
approach to waste management and water quality management.
The Maryland Environmental Service (MES) offers an example of
a statewide waste management agency. It was established by
the state legislature in 1970 as a public corporation with
authority to plan and implement programs in the traditionally
local sectors of water supply, solid waste, and wastewater
management. The State, through the Environmental Service,
goes beyond the traditional roles of water pollution regula-
tion and as a source of financial or technical assistance.
Through its statutory authority, the MES may enter into
partnership with local governments and private industry to
provide a wide range of services including planning, design,
financing, construction, operation, and maintenance of treat-
ment, reclamation, and disposal facilities.
Functions
The principal activj ties of a regionalized state wastewater
management agency should include planning, research, design
and construction, operation, regulation and performance as-
sessment. A regional water quality management agency re-
quires authority to provide all liquid waste management ser-
vices to counties, municipalities, and industrial plants.
This enables the state, through the management agency, to
expand the role of state government from simply performing
regulatory duties and providing financial assistance to one
of full partnership with political subdivisions such as muni-
cipalities and counties as well as with industry. Further,
such a role allows a wide range of services to be provided,
such as a) the development of fully integrated plans for
regions and problem areas, including the designation of
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service regions for wastewater (and as needed for solid waste
disposal); b) research and development to improve methods and
techniques for waste collection (municipal and industrial),
transportation, processing, and disposal; c) acquiring, de-
signing, constructing, improving, operating and maintaining,
wastewater treatment facilities; and d) technical assistance
to local government for planning, financing, design and con-
struction, and operation of wastewater management systems.
With adequate legislative authority, a regionalized state
management organization may serve as a "statewide sanitary
district" and would have the mandate and resources to draft
and implement comprehensive waste management plans as the
means of implementing a regional approach to waste management.
Formal Organization
The structure of such a management agency should include cer-
tain basic elements common to all wastewater/water quality
management organizations. A typical structural arrangement
would include the following: 1) a board of directors; 2) a
director of the agency; 3) an administrative services unit;
4) a policy planning and project development section; 5) a
design and construction department; 6) an operations and
maintenance department; 7) a legal services department; and
8) a financial and grants management unit. The experience to
date in Maryland indicates that there are significant ad-
ministrative advantages to be obtained by contracting with
private technical organizations (e.g., engineering consulting
firms or testing laboratories) rather than increasing the
size of permanent departments in the state agency. However,
there are clear drawbacks to this approach which may limit
its effectiveness, especially if there is a large concentra-
tion of skilled manpower in the parent State agency to which
the state-wide water quality organization is attached or
others with parallel responsibilities. In many instances,
private, nongovernmental organizations would lack historical
perspective and an in-depth understanding of the intergovern-
mental problems involved in implementing regional or statewide
wastewater management plans.
Major components in an organizational design are those of
planning and program development, in addition to the basic
departments responsible for financial management, operations,
and regulation. It is also important that adequate resources
be provided to implement discharge requirements, stream
standards f and health standards for wastewater management
(and solid waste disposal as its affects water quality) through
cooperative relationships with the departments of health or
natural resources. In particular, the planning functions
should provide for a continuing exchange of information
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relating to land use planning, water resources planning,
and water quality management plans. Thus, an important
structural factor to be considered in any regionalized
water quality management agency is provision for inter-
agency coordination among all levels of governments, of the
planning, design and construction activities for water
quality management.
Administrative Processes
Various relationships must be provided between other state
units, local government and the private sector, in order to
develop the necessary communications and integration of man-
agement activities listed above. The nature of such an
agency is that it is both a regional service institution as
well as a management tool through which state government may
achieve a more comprehensive approach to effective residuals
management. Therefore, it provides a management as well as
a regulatory approach to environmental quality. The primary
rationale here is that a "comprehensive management approach"
can work more effectively to achieve both pollution control
and resource protection goals. This is in contrast to a
"limited regulatory approach" which often seeks (and accepts)
compliance with minimum water quality standards by municipal
governments or industrial waste dischargers. The range of
benefits to be expected from a regionalized state management
approach includes: 1) the capability to institutionalize a
regional approach to planning, construction, and management
of wastewater and solid waste facilities in order to take ad-
vantage of both economies of scale and the regional, ''prob-
lemshed" characteristics of water and land resources. In so
doing, a greater range of administrative fiscal and regula-
tory options are available to achieve optimal environmental
quality than are available to fragmented, special purpose
agencies, or utilities organizations; 2) the ability to se-
cure better financing arrangements than is generally possible
by local governments; and 3) the ability to ensure compliance
with the water quality standards and discharge regulations of
the state as specified in statewide, basinwide, and areawide
plans.
A serious drawback to this regionalized-state level of water
quality management is the distance from people and problems
at the local level. Two approaches to minimizing this prob-
lem have been suggested in recent studies[7]. The idea of
locating regional offices of the state agency at the site of
major water quality problem areas would act to decentralize
the department in its daily linkages with local governments
and still would permit direct administrative coordination
with the office of the Director. By providing a staff of
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specialists close to local and regional problems, all of whom
report to the same administrator, problems of distance and
communication can be reduced. A second approach, a variation
of the first, is that utilized in Vermont. Here the Agency
for Environmental Conservation, with responsibility for en-
vironmental quality and water resources management, works
through the Environmental Board and the District Environ-
mental Commissions to carry out the requirements of the land-
use permit system. In this case, the board has a series of
regional offices, covering one or more counties, which conduct
hearings and issue permits for land use. Appeals are for-
warded to the full Board in the state capitol for resolution.
Applying this notion of local action and local administration,
coupled with the formal organizational structure at the state
level, to the Regionalized-State Water Quality Management
model, it is possible to overcome the potential problems of
distance and communication.
Several basic elements are required to develop management
strategies and implementation plans in a state or regionalized
water quality management organization. The most important of
these are 1) the authority to integrate planning and imple-
mentation; 2) the authority to finance projects which are
specified in state, basin, and areawide plans; and 3) the
authority and resources to enforce standards, permits, and
health requirements, as they relate to a larger concept of
water quality management. Thus, as the Maryland example in-
dicates , the regionalized organization is authorized to act
as an agent and technical advisor on behalf of a number of
individual dischargers, in order to bring toge-ther two or more
jurisdictions and point sources of wastewater to arrive at a
more cost-effective solution[8]. These jurisdictions may in-
clude either local governments, counties or municipalities
industrial firms, or state-owned facilities. One result to
be expected is the economies of scale of both engineering and
skilled operating manpower resources which are normally not
available to small communities or county governments. An im-
portant principle to be incorporated in the design of such a
model agency is that of regionalized services, that is, the
agency serves only as a wholesale outlet in financing, con-
struction, or operation of waste water treatment facilities
while its knowledge of the problems of wastewater management
often provides useful feedback for local or regional land use
planning. The reliance on state, regional, or local land use
development plans will enable a regionalized agency to obtain
a wider range of inputs on such questions as: what objectives
should be sought in these plans and how should areawide or
regional planning be carried out?
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A key administrative tool in providing adequate financing
authority for a regionalized approach is the use of the full-
cost recovery user charge based on both volume and strength
characteristics. This concept provides the rationale for a
differential rate structure for different types of waste
water discharges into public waters. The same principal is
valid for municipal waste water systems by applying the dif-
ferential rate schedule to volume-strength-time flow charac-
teristics of the waste waters discharged into state waterways
from municipality treatment plants. A combination of dis-
charge permits, effluent charges, and water qualtiy standards
should enable the regionalized state agency the maximum de-
gree of flexibility in dealing with a wide range of volume-
strength discharges and thus offers a set of alternative
strategies to achieve compliance by local governments and
industry.
Political Responsiveness
One other necessary aspect in the model of a regionalized
water quality organization is the nature of the representation
in its policy-making board and the provision for public par-
ticipation in filing complaints, reviewing proposed regula-
tions, or in requests for variances by polluters. In the
case of the Maryland Environmental Service, which is a line
agency of the state government, the legislature through its
committees serves as the primary focal point for public de-
mands. The agency is headed by a Board of Directors, com-
posed of the Director, Secretary, and Treasurer of the MES.
However, one criticism of this approach lies in the fact that
the board of directors is twice removed from the electorate
since they are appointed by the. Secretary of the Department
of Natural Resources with the approval of the Governor and
there are no provisions for advisory committees either in the
Governor's office or to the MES. An alternative model would
include an "Environmental Advisory" board whose members are
elected from the general public directly or as representatives
from general purpose local governments which utilize the ser-
vices of the regionalized agency.
Further, there is a need to provide a citizen's advisory com-
mittee with the freedom to review the program planning deci-
sions , management decisions, and the environmental impact of
the policy decisions undertaken by the agency. While the
basic nature of legislative control in the case of Maryland
does provide one mechanism for citizen input, the number of
claims on state legislators' time and energy is great and
very often the individuals do not have either the technical
or administrative resources to respond to the concerns of
citizens. On the other hand, as the Maryland case illustrates,
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a new agency having state-wide authority can find shelter
under the aegis of an existing state agency in its early years
of operation which enables the state legislature to maintain
a close watch on its operations while it is getting experi-
ence. In addition, as the Maryland experience also indicates,
the freedom of the agency to retain all financial and manpower
resources provided by the legislature each year removes or
minimizes the political dependence upon the parent agency.
Alternative schemes which would provide more direct public
participation are those used by the Metro-Council of
Minneapolis-St. Paul, in which the line agency has its own
advisory committee; the New York arrangement in which an En-
vironmental Board has veto authority over the Environmental
Conservation Commissioner and is composed of the heads of all
State Agencies which have an environmental function plus pub-
lic members; or the divided arrangement devised in Illinois,
where the enforcement and operating agency, the Illinois En-
vironmental Protection Agency, is separate from a policy-making
and standard-setting agency, the Illinois Pollution Control
Board, whose members are appointed by the Governor for a fixed
term. The PCB's hearings on rules and standards, violations
and complaints are all open to public participation. One valu-
able safeguard developed in the Maryland experience, is the
idea that local water quality management plans should be de-
veloped in conjunction with and thus complement land use plans
prepared by local governments. The underlying principle in
this case is that water quality management's role in planning
should be to assist in obtaining resources, hardware, and
facilities to implement land use planning, not control it.
Therefore, in any institutional design for a regionalized water
quality management organization, provision must be made for
the proper degree of autonomy in water quality management de-
cisions by the regionalized state agency but with adequate
consideration of land use planning and control expected by
local or county governments. Past experience indicates local
or county governments will seek a significant degree of
autonomy in making decisions which affect their political
and fiscal stability.
An important contribution of a regionalized agency is the pro-
vision of technical and fiscal management skills coupled with
the ability to integrate basinwide, areawide , and statewide
water quality management plans. The regionalized state water
quality management concept would therefore be very different
from the current practice of basinwide planning now underway
in several parts of the country. The regionalized state
agency would be able to serve as an operating entity also and,
in addition to its involvement in planning, it would have the
responsibility for operating all facilities in any region in
the state after determining the capability and obtaining
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concurrence of the local governments involved. The primary
value in allowing a regional or state-level input to local
planning lies in the evidence and data which it could provide
to aid in the assessment of the consequences of one parti-
cular (local) development plan as compared to another. This
would serve as a type of "feedback" to local or regional
planners and should enhance the activities carried out at
those levels.
At the same time, experience has shown that planning data and
problem forecasting information does not always reach those
individuals , governments or industrial organizations which
will be most directly affected in time for their reaction and
rebuttal. This is made more difficult if planning groups are
within the confines of the state capital. Therefore, any in-
stitutional design based on a regionalized state model must
also provide for rapid dissemination of all technical infor-
mation and must adhere to a policy of broad public education
and participation through hearings and "town meetings" if it
is to gain acceptance of its water quality management plans.
In most situations the constraints and regulations estab-
lished by state and federal agencies determine the type of
integrated management services provided. As an operator of
waste treatment facilities, a regional or state agency would
have the responsibility to protect the environment just as
any other individual waste discharger would but it would do
so with a broad view of the entire resource system since it
would have all planning data at its disposal for either the
region or the entire state. Consequently, it will provide a
vehicle by which the goals of environmental quality and re-
sources utilization might be more effectively realized,and
trade-offs among the sectors at the state level could be
examined. In a recent paper, the director of the Maryland
Environmental Service provides a similar, persuasive argument
for the regional approach [9 ]. In his view, direct provi-
sion of waste management services by state agencies is simply
an expansion of the direct services now accepted as state
responsibility and is not in conflict with the notion that
the states' primary responsibility is enforcement of laws
(i.e., the police power). The concept of a state agency
acting to implement water quality management plans along
with solid waste management plans eliminates one of the in-
herent weaknesses of the enforcement approach, namely, re-
quiring the most desirable rather than settling for the
merely acceptable solution. In this light, both environ-
mental quality and cost-effectiveness criteria would be
more adequately met when two or more local or regional
governmental units participate jointly in managing a waste
water treatment facility based on areawide planning by the
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regional or state organization rather than each attempting
its own inefficient and perhaps inadequate solution. There-
fore, it is felt that a regionalized wastewater agency based
on this model will provide significantly effective solutions
to such problems as: (1) the provision of regional wastewater
management in those areas where it is needed and does not
presently exist; (2) the provision of improved financing capa-
bility through its greater bond issuing authority at the state
rather than local level; (3) assurance to local governments
that equitable arrangements will be incorporated into the
regionalized-state organization in order to reduce the tra-
ditional fears that exist among local units of government and
their specialized, single-function agencies, and the absence
of technical resources in many municipalities. When this
model is compared with the two described earlier, several
differences start out along with the similarities. Most
basic is the difference in jurisdiction and the role of the
state legislature serving as the representative governing
body. The additional economies of scale in local plans with
regional plans should also be noted. Clearly, such an agency
cannot be expected to manage, operate and regulate all local
or regional facilities and programs and it must rely on local
government to the fullest. However, its single greatest ad-
vantage is the ready availability of technical skills, fiscal
standing, and its use of statewide planning data. Problems
which can be expected include state-local management of fa-
cilities, acquisition of or closing down small, inadequate
treatment plants, and sanctions against small industries which
may threaten the economy of small towns or counties. Many of
these points are discussed in a recent paper, which develops
the concept of a regional utility approach to a comprehensive
environmental agency[10]. While a comprehensive, multi-media
agency dealing with air, water, and solid waste problems is
broader in scope than the subject of this study, the elements
described and the advantages suggested serve to clarify this
concept as an innovative organizational change which should
enhance the ability of state governments to provide a quality
environment. The significant idea presented is that a re-
gionalized state organization under the umbrella of a state-
wide environmental utility or environmental quality agency,
would allow regional branches to be established in areas where
the distribution, strength and volume of wastewater discharges
require an integrated approach to waste management. Thus,
following the model discussed above, a regional agency would
be established at the state level, provide financial guidance
and organizational services to its regional branches, and
management advice to municipalities and industries that are
located in close proximity to the regional branches. While
it would still serve as an operating agency, it would not
interact with individual citizens and would deal with indi-
vidual industries only when their waste water discharge was
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of such a nature that it could not be treated or handled by
a municipal or county wastewater treatment system. Figure
VI-4 illustrates the general organizational scheme of a
typical regionalized water quality management arrangement.
In each case, as the ability to handle a broader range of
problems enlarges the scope and jurisdiction of the areawide
management organization, the public accountability becomes
more diffuse due to the greater distance between the public
managers and the people affected by the organization's
policies. Thus, the issue of responsiveness and accounta-
bility is clearly one which must receive attention in any
institutional design choice. This suggests two approaches
to the public accountability problem. One approach is the
use of Areawide Environmental Advisory Boards, composed of
elected representatives from local governments (towns or
counties) that would have veto power over the policy and
programs of areawide agencies operating in their locale.
Another approach is the use of local environment Boards, or
county Environmental Commissions, to provide the expertise
and representation in all policy planning activities of an
areawide wastewater management agency. This use of elected
officials, or local representatives appointed by the gov-
erning body of towns or counties would serve to bring the
areawide organization into closer contact with local values
and needs .
SUMMARY
The three models for water quality management -- areawide,
basinwide and regionalized state -- outlined above are
similar in several important ways. For example: their
principal activities -- planning, financing, design and
construction, operation and maintenance -- are the same in
substantive terms , but each requires certain differences in
emphasis; the powers and administrative methods required to
implement effective programs are similar; their basic or-
ganizational structure need not differ except in detail to
accommodate special localized circumstances; and each shares
a requirement to represent their "publics," although the
particular arrangement that emerges may differ in detail for
any given agency, depending upon the number of governments
served and the complexity of securing public participation.
When evaluated in terms of the criteria suggested for as-
sessing water quality management agencies, we conclude that
each of these models will meet the tests. In practice,
successful institutional design will depend largely upon
1) maximum use of existing legislation at each level of
government; 2) innovative administrators to implement pro-
grams and seek appropriate additions to existing law;
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STATE
LEGISLATURE
C
GOVERNOR
ENVIRONMENTAL
AGENCY
(OR NATURAL RESOURCES)
ADMIN.
SERVICES
POLICY
PLANNING
AND
RESEARCH
FISCAL
ENGINEERING
STANDARDS
AND
ENFORCEMENT
ENVIRONMENTAL
SCIENCES
REGIONAL OFFICES AND FACILITIES
REGIONALIZED STATE MODEL
FIGURE VI-4
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3) responsive representatives on policy-making bodies; 4)
sustained public participation in decision-making processes;
and 5) adequate resources to achieve agreed upon objectives
determined by federal and state legislation, local and re-
gional plans, and court decisions. These five needs are ob-
viously interdependent and may be summarized as management
skills, resources, and political linkages, all dependent upon
an attentive public which can express its demands forcefully.
No model outlined here is inherently superior to the others
in its ability to meet the tests of representation, informa-
tion generation, efficiency, and effectiveness, due simply to
the differences that exist between areas, basins and states
in terms of the problems to be solved, the resources avail-
able, and the institutions that are acceptable in a given lo-
cation at a given time. Within this setting, it is our be-
lief that each of these management models, with appropriate
local modifications and if compatible with existing enabling
legislation, are feasible and should be tested. Performance
assessment of these efforts on a continuing basis should ex-
tend current understanding of the institutional alternatives
for water quality management so that each section of the
nation may utilize the optimal organizational form to achieve
its goal of restoring and maintaining the chemical, physical,
and biological integrity of its waters.
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SECTION VI
NOTES
1. M. B. MacPherson, Prospects for Metropolitan Water Man-
agement, A Study of American Society of Civil Engineers
Urban Water Resources Council, December 1970; Orlando E.
Delogu, Legal and Governmental Structures for Water Man-
agement In Metropolitan Areas.National Water Commission,
Legal Study No. 16, July, 1971. N. William Hines, Public
Regulation of Water Quality in the United States. Na-
tional Water Commission, December, 1971. (Report No. NWC-
L-72-036). Allen V. Kneese and Blair T. Bower. Managing
Water Quality: Economics, Technology, Institutions,
Johns Hopkins Press, 1968; pp. 6-8 and Chapter 14.
In addition, the following studies are suggested:
Clifford S. Russell, Walter 0. Spoffard, Jr., and
Edwin T. Haefele, "Environmental Quality Management in
Metropolitan Areas," Resources for the Future, 1972.
Blair T. Bower, George O.G. Lof, William Heron, "Resi-
duals in the Manufacture of Paper," Journal of the
Environmental Engineering Division, ASCE, Vol. 99,
No. EE1, Process Paper 9543, February, 1973, pp. 1-16.
Allen V. Kneese, Robert Ayres, and Ralph D'Arge,
Economics and the Environment: A Materials Balance
Approach, Johns Hopkins Press, 197 .
Allen V. Kneese, and Blair T. Bower, Environmental
Quality Analysis: Theory and Method in the SociaT
Sciences,Johns Hopkins Press,1972.~
2. Op. cit., Managing Water Quality: Economics, Technology,
Institutions ', p~. 7^ ~~"
3. Ibid , pp. 6-7.
4. Ibid , 303-308.
5. It is evident that any management agency -- areawide ,
basinwide, or regionalized state -- will require the
basic legislative authority and the technical capability
to carry out these activities. Further, it should be
understood that this framework of activities includes
certain aspects of regulation such as plan review and
evaluation for construction permits, inspection and sur-
veillance of existing facilities connected to the system,
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but not under the direct operating control of the
management entity, and monitoring for the purpose
of enforcement. These activities would probably be
located under the general heading "operation." In
addition, data collection and research are legitimate
activities and would also be a part of any management
agency.
Another essential function may be called performance
assessment. This activity provides the means for one
entity to assess the performance of another with respect
to how well or how poorly it is meeting certain specified
administrative criteria. The major difficulty here is
the lack of agreed upon indicators of environmental
quality.
6. The MSB of the Twin Cities is indicative of an areawide
arrangement in which the service area of the operating
entity is different from that of the parent body, the
Metropolitan Council. Their service area is defined as
that area that has attained or will attain by a speci-
fied date on "urban population density." It should be
noted that the MSB does have authority to operate in
the area outside its service area under certain con-
ditions .
7. Metropolitan Sewer Act, Minnesota Statutes 1969, Chap.
473C, at Sec. 5.
8. Thomas D. McKewen, "Regional Management of Waste Systems,"
Journal of the Water Pollution Control Federation, 44,
(No. 8), August, 1972, pp. 1493-1497.
9. Ibid.
10. John M. Armstrong, "State Environmental Utilities for
Waste Management," Journal of the Water Pollution Control
Federation, 44, (No. 9), September, 1972, ; See also
State of Vermont: Land Use and Development, Vermont's
Environmental Programs -- A Guide. (Montpelier, Vermont,
Agency for Environmental Conservation), September, 1972.
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SECTION VII
ANALYSIS OF LEGAL PROBLEMS OF IMPLEMENTING INSTITUTIONAL
MODELS FOR WATER QUALITY MANAGEMENT
The three suggested institutional models -- areawide, basin-
wide, and regionalized state -- are generally larger geograph-
ically and functionally more comprehensive than existing
local waste treatment management agencies. The models place
many functions in one agency, including those required by
§208(c) (2) , which are currently being performed by several
agencies having jurisdiction in the area being served. For
example, treatment may be performed at the local level (city,
municipality, sanitary district, etc.); planning may be on an
areawide, or at least a larger area, basis; standards may be
set.on a statewide basis; enforcement may be a combination
of local and state agencies or just state agencies. The pur-
pose of the institutional models is to integrate these
functions, or most of them, in one agency resulting in a more
comprehensive, efficient and responsible approach to water
quality management.
Different models are suggested since water quality problems
differ from state to state. Equally important are the dif-
ferences in political climate within the states and the degree
to which local governments exercise autonomy in water quality
control.
In analyzing the models in the light of existing state laws
and the requirements §208(c)(2), it is important to identify
the important functions to be performed in order to attain
and maintain an effective system of water quality management,
or, as it is referred to in the Act, waste treatment manage-
ment. Stated in broad categories, these functions include
(1) planning, (2) design and construction, (3) operation and
maintenance of physical facilities and the administration of
non-structural measures, (4) standard-setting, for both
effluent limitation and water (stream) quality, (5) regula-
tion and issuance of permits, (6) enforcement, and (7) research
and training. It is immediately recognizable that on a func-
tional basis, many different agencies at different levels of
government within each state are currently performing these
functions. All of these functions are included in each insti-
tutional model. It is also recognizable on a funcitonal basis
that the requirements of §208(c) (2) fall principally within
the functions of design and construction, operation and main-
tenance, and enforcement.
While it is unwise to generalize, it can be stated with assur-
ance that in most states, the larger the geographical area of
the institutional model and the more numerous the functions
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included in that model, the more prevalent and more difficult
are the legal problems and the more heightened is political
resistance. It can also be stated that to the extent that
more power is required "at the top" to implement the institu-
tional model, more legal problems are created and, certainly,
more political problems, are encountered, mainly in the
difficulty of convincing local units of government to relin-
quish their existing powers. These difficulties arise because
the functions of planning (site selection, size and type of
treatment works, and area to be served) and operations are
controlled by local levels. These problems are not to be
lightly dismissed however, since local control and lack of
cooperation have resulted in inefficiencies, waste of resourc-
es, and, most importantly, degradation of the nation's waters.
As noted previously, a major purpose of the Act is promotion
and requirement of an areawide approach to water quality man-
agement to overcome these problems. The institutional models
suggested respond to this purpose of the Act.
AREAWIDE MODEL
The fewest legal and political problems are encountered with
the areawide model. Most states permit local political sub-
divisions to join together to form a sanitary district or
other entity for the purpose of wastewater management. This
is generally accomplished on a voluntary basis as authorized
by interlocal cooperation acts or similar state legislation.
The key to this approach is, of course, the incentives for
voluntary cooperation and agreement. These incentives include
savings to taxpayers, better overall water quality, and avail-
ability of federal grants to assist in planning and construc-
tion. Under the voluntary approach, a problem arises if local
governments refuse to cooperate and thus defeat the purpose of
the §208 areawide plan. Many states do not authorize forcing
a unit of local government, otherwise in compliance, to join
an areawide plan. Provided a unit of local government can
"go it alone" to comply with standards of treatment, little
can be done to require that unit to cooperate with other units
of local government which cannot "go it alone." The withhold-
ing of federal funds and the permit system are two methods of
coercing a recalcitrant unit of local government, but it is in
this area that enabling legislation is needed in many states
if the areawide institutional model is adopted.
Other functions such as standard-setting, regulation (permits)
and enforcement can be handled on an areawide basis. If these
are currently being accomplished by a state-level agency,
authority could be delegated to the areawide agency under
conditions such that state level or statewide minimum stand-
ards are met as set forth in the state §303 plan. The area-
wide agency could, therefore, perform these functions
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constrained only by standards imposed by the state. It should,
of course, be remembered that the standards of pretreatment
and effluent limitations imposed by EPA as provided by §§306
and 307 of the Act must be met. But, if these functions are
being performed at local levels, the agreement establishing
the areawide agency can provide for performance of these func-
tions by the areawide agency.
The areawide agency's powers with respect to raising funds —
i.e., incurring long- and short-term indebtedness -- is another
problem area that deserves mention. Since existing facili-
ties may still be under a bonded indebtedness, provision will
have to be made for the new areawide agency assuming this
existing indebtedness. In the case of revenue bond financ-
ing, problems may exist because the revenues of a particular
project are usually pledged to retire the indebtedness. In
the case of new indebtedness, fewer problems are encountered,
since the state interlocal cooperation acts usually provide
a power to incur indebtedness on the part of the areawide
agency. Absent such provisions, remedial legislation may be
necessary to enable the new entity to issue bonds and estab-
lish the procedures for the issuance, including approval by
the electorate of the area.
One point stressed in each of the institutional models is
local representation in the area of policy making. It is
suggested that elected officials participate in policy making
decisions. This could present legal problems in some states,
particularly if the positions are salaried. Some states do
not permit elected or appointed officials to serve in more
than one governmental salaried position, and, in some fewer
states, to serve in more than one position whether salaried
or not. In such situations, enabling legislation should be
drafted to overcome this problem.
In summary, the areawide model whose political boundaries
follow those of the constituent political subdivisions compos-
ing it has the fewest legal problems of the proposed models.
In most states, such an areawide model can be set up by vol-
untary, interlocal agreements authorized by state law.
Problems may be encountered if one or more units of local
government refuse to cooperate, since the power to require
cooperation may be lacking. With respect to this problem,
enabling legislation is therefore likely to be needed. This
power to require all governmental entities within the area
to join and abide by the §208 areawide plan is very important,
if not essential to accomplishing the purposes of the Act.
For example, §201(c) provides that "to the extent practicable,
waste treatment management shall be on an areawide basis and
provide control or treatment of all point and nonpoint
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sources of pollution," §208(b)(l) requires that the areawide
planning process be consistent with §201 and further that such
areawide plan establish a regulatory program to implement
§201(c) and to regulate the location, modification, and con-
struction of any facilities within the area which may result
in any discharge in the area.
The areawide plan is particularly adaptable to the planning and
operations functions. Legal constraints (or lack of authority)
to perform other functions such as standard-setting, regula-
tion and enforcement, and functions required by §208(c) (2) can
be overcome by the delegation of the powers to the areawide
agency.
BASINWIDE MODEL
Basinwide models generally will encompass a much larger geo-
graphical area than the areawide model. The larger geographic
area will tend to increase the legal problems and most certainly
increase the political problems. The political problems occur
because of the likelihood that a more diverse populace will be
encompassed in a basinwide area than in the areawide model
which is based on an urban-industrial concentration.
The comments with respect to the areawide model are applicable
to the basinwide model -- i.e., voluntary interlocal coopera-
tion agreements are available in most states, while "enforced"
cooperation is not readily available. However, an additional
problem arises since the area encompassed by the basinwide
model may not follow existing boundaries of constituent politi-
cal subdivisions. In some states, it is not legally possible
to cut across boundaries of existing political subdivisions to
create a new entity such as a basinwide agency. In others it
is not possible without approval of the electorate of the
affected subdivisions.
Under the basinwide approach, the basin stream and its tribu-
taries can more readily be classified by the basinwide agency
according to the streams' uses. Thus the water quality
standards for the classification of the basin streams may
place more stringent limitations on the discharge into the
streams compared with effluent limitation standards. This
occurs when application of the effluent limitation standards
will not result in meeting the water quality standards of the
recipient stream. The legal and policy problems presented are
that the same industries discharging the same pollutants, but
into different streams, will be treated differently, so that
one must meet the more stringent standards imposed by the water
quality standards, and the other is only required to meet the
effluent limitation standards. However, if the stream class-
ifications and water quality standards are reasonable, there
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would appear to be no insurmountable legal problem in enforc-
ing them.
An advantage of the basinwide approach is that regulation and
enforcement can be coordinated for the entire basin instead
of having it determined by each urban-industrial complex in
the basin watershed. This requires, however, more extensive
regulatory and enforcement mechanisms than now exist in many
states, particularly in states where such functions are per-
formed wholly or in part at the local level.
In summary, the basinwide institutional model presents the
same problems as the areawide model, with the addition that
the problems may be larger in scope and thus more difficult
to resolve. It also presents some additional problems aris-
ing from the fact that existing political subdivision bound-
aries may not be followed. Too, the implementation of the
basinwide model creates possibilities of claims by dischargers
of unequal treatment although this could also occur in an
areawide model in which two or more streams are involved.
REGIONALIZED STATE MODEL
The regionalized state institutional model provides for the
state being the prime motivator. The state agency would
divide the state into manageable regions with each regional
agency being a branch of the state agency. Instead of pro-
viding coordination among, and services to, regional (area-
wide) agencies, the state would actually direct them. In
other words, this concept provides for governing "from the
top down." Maryland and Puerto Rico are examples of the
statewide approach, although they are not as extensive as
the institutional model.
The utilization of voluntary interlocal cooperation agree-
ments would not be feasible. The state would need authority
(1) to require its political subdivisions to act, or (2) to
take over the functions of water quality management, includ-
ing planning and operations, thereby eliminating local levels
of government from these functions of water quality control.
In small or sparsely settled states, or in states with polit-
ical subdivisions incapable of effective action, the statewide
regional plan would be appropriate, but the loss of autonomy
by local units of government would certainly militate against
this type of plan in many states. It is difficult to envision
many state legislatures being able to muster enough support
to enact the required legislation.
As noted before, the larger the area included in the manage-
ment plan, the more legal problems encountered. This is
particularly true of the regionalized state model. While many
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states provide for state level planning, standard setting,
regulation and enforcement, very few provide for operation,
financing, or establishment of charge systems at the state
level. These functions have therefore been performed at the
local level. If the regionalized state model is to succeed,
there must be adequate assurance of local input into policy
making and decisions affecting the public. Therefore, any
legislation enacted to implement the regionalized state model
should stress local representation with the power to make deci
sions on local issues.
In summary, only a few states have gone so far as to provide
for a statewide regional concept of managing most functions of
water quality control. Such functions as standard setting,
regulation and enforcement have been performed by state level
agencies, but general planning and operations have not been.
New legislation would be required in nearly all states, and
due to the fear of loss of autonomy and control at the local
level, its passage appears somewhat remote.
SUMMARY
A plan to include all or most functions of water quality con-
trol in one areawide or larger agency will encounter legal
obstacles in many states. The functions of planning and oper-
ations have customarily been exercised at a local level, and
a shift toward a centralized agency was not envisioned when
many state water quality control laws were enacted. Most
states do provide, however, for voluntary cooperation among
political subdivisions, but very few states provide author-
ity to require such cooperation. Cooperation may be induced
or coerced by economic incentives, stringent regulation, or
by operation of the permit system, but generally cooperation
cannot be required. The model that can be implemented volun-
tarily and cooperatively among political subdivisions of the
state appears to have the most application. The alternative
to this voluntary approach is the enactment of legislation by
which a state can require compliance by local subdivisions;
such legislation should provide local subdivisions with the
opportunity to join together voluntarily after notice from
the state before compliance is mandated.
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SECTION VIII
REGULATORY MECHANISMS:
A PERSPECTIVE
INTRODUCTION
§208 (b) (2) (C) of the Act sets forth some of the regulatory
attributes required of the planning process by waste treat-
ment agencies qualifying for federal funding. The section
specifies that §208 plans shall include, but not be limited
to;
(c) The establishment of a regulatory program to -
(i) implement the waste treatment management
requirements of §201(c) (To the extent
practicable, waste treatment management
shall be on an areawide basis and pro-
vice control or treatment of all point
and nonpoint sources of pollution, in-
cluding in-place or accumulated pollution
sources,)
(ii) regulate the location, modification, and
construction of any facilities within such
area which may result in any discharge in
such area, and
(iii) assure that any industrial or commercial
wastes discharged into any treatment
works in such area meet applicable pre-
treatment requirements.
There is no definition in the Act of the term "facilities" as
it appears in §208(b) (2) (C) (ii) . In various parts of the Act
"facility" is used to refer to 1) publicly owned research
facilities for the "prevention, removal, reduction and eli-
mination of pollution on lakes, including the undesirable
effects of nutrients and vegetation" [ § 104 (h) (B) ] ; 2) reve-
nue producing instrumentalities providing for recycling of
potential sewage pollutants, confined and contained disposal
of pollutants, reclamation of wastewater, and ultimate dis-
posal of sludge [§201(d)]; and 3) facilities for sewage
treatment and recycling, in order to treat, dispose of, or
utilize other municipal and industrial wastes [§201(e)].
The use of the term in the text of the Conference Committee
Report on the Act suggests that "facility" be interpreted as
any publicly-owned, stationary waste treatment works. On
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the other hand, a different interpretation is indicated when
the phrase "facilities. . .which may result in any dis-
charge. . ."is analyzed. In §502(16) 'discharge' is defined
as "a discharge of a pollutant, and a discharge of pollutants."
§502(12) defines 'discharge of a pollutant' as "(A) any ad-
dition of any pollutant to navigable waters from any point
source, (b) any addition of any pollutant to the waters of
the contiguous zone or the ocean from any point source other
than a vessel or other floating craft." Therefore, it is
reasonable to interpret facility as used in Title II as in-
cluding point source dischargers -- both public and private
-- into navigable waters. It appears that, given this inter-
pretation, the areawide agency must be allowed to utilize
land use controls as well as the more traditional forms of
regulation. In this report suggestions will be made con-
cerning implementation of land use controls based on the
broader definition of facility-
Compliance with §208 (b) (2)(C) can largely be achieved through
the use of existing regulatory devices and expansion or mod-
ification of these devices. An example is the Metropolitan
Council of the Twin Cities Area, an areawide agency which pro-
vides control and/or treatment of point and nonpoint sources
of pollution through permits and waste discharge regulations.
Location, modification and construction of facilities is
regulated through river zoning, building codes, sev/age regu-
lations, and permits. Pretreatment requirements are ful-
filled through sewage and waste control regulations. As this
example suggests, in most cases several regulatory techniques
are used independently or in combination to achieve an en-
forcement goal. Although the techniques discussed in this
report are dealt with in separate sections, it should be kept
in mind that frequently two or more of these techniques may
be used simultaneously to complement each other. In addition,
one mechanism may be particularly adaptable to a problem area.
For example, land use controls in older, more established
cities may not be as effective as a permit system. In newly
developing areas, however, land use controls may be the most
effective.
Clearly, the intent of the Act is to stimulate new and more
effective systems of regulation on an areawide basis; hence,
a positive attitude toward consideration and implementation
of new methods of regulation is demanded of the areawide
planner. Furthermore, the creative administrator should be
able to broadly interpret existing enabling legislation,
giving special attention to definitions and meanings of terms.
It is the intent of this section to suggest alternative regu-
latory mechanisms in the hope that more efficient and effec-
tive means of implementing §208 may be developed.
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In the sections that follow, five regulatory mechanisms are
discussed: 1) land use controls, 2) permits, 3) standards,
4) pricing mechanisms, and 5) a category of miscellaneous
methods. Where possible, potential expansion of these de-
vices will be pointed out, especially for nonpoint sources.
The rationale underlying the order of presentation of the
schemes is a movement from the most direct controls to the
least direct.
LAND USE CONTROLS
The most direct means of regulating point and nonpoint sources
of water pollution on an areawide basis is through land use
controls. The spectrum of land use control ranges from out-
right prohibitions of certain uses within a given area to
uses being permitted under certain conditions. With respect
to treatment management agencies participating in land use
planning and control, a review of the statutes and literature
indicates that such agencies' statutory capacity for zoning
occurs only in isolated instances.
Environmental considerations have not as yet had much impact
on land use planning. Yannacone and Cohen point out that "re-
cent advances in environmental science make it possible to base
land use regulation on ecological considerations. While it has
long been recognized that planned growth is of greater benefit
to society than unplanned growth, the planning process has tra-
ditionally lacked significant input from the environmental
sciences" [1].
Enabling acts for zoning codes (many of which were framed in
the 1920's) rarely include provisions for water quality con-
siderations mentioning only that zoning should facilitate ade-
quate water and sewerage supplies. Although not expressly
stated, water quality control might be included as a criterion
for zoning decisions based on the broad purpose sections of
most enabling acts — i.e., of "public health and welfare".
A modern zoning code, more amenable to considerations of water
quality, was suggested by the Maryland Planning and Zoning
Commission Law Study in 1970. In the purpose sections it
states: "Every local government shall have power to regulate
land use and development for the present and future health,
safety and general welfare of its citizens. The powers granted
herein shall be exercised with forethought and reasonable re-
straint so that the measures adopted will promote the economic
prosperity of this State, secure continued improvement in the
living conditions for all segments of the population and offer
the maximum encouragement to private initiative for the
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accomplishment of these goals "[2]. Such environmental con-
siderations are presently reflected in the Maryland statutes
on planning and zoning which include as legitimate purposes
of planning ''conservation of natural resources , [and] the
prevention of environmental pollution" [3].
Zoning has historically been the domain of local governments.
Recently, however, some states have moved toward state level
control. Vermont now requires land use permits[4] , Maine has
enacted development and land control legislation [5], and
Hawaii has instituted statewide zoning to control general de-
velopment. "Pursuant to a state plan, land in Hawaii is
classified for use into conservation, agricultural, rural
and urban districts by the State Land Use Commission. The
state determines what uses will be allowed in conservation
and agricultural uses. The counties. . .can issue special
permits in agricultural areas but they are subject to state
veto. . .It is only in urban areas that the local governments
have primary control of zoning"[6],
In specialized instances, water management agencies serving
areas with flooding problems are granted zoning authority.
An illustration can be found in the Delaware River Basin Com-
pact, where the Delaware River Basin Commission is empowered
"to adopt amend and repeal recommended standards, in the man-
ner provided by this section, relating to the nature and ex-
tent of the uses of land in areas subject to flooding by the
Delaware River and its tributaries. Such standards shall not
be deemed to impair or restrict the power of the signatory
parties or their political subdivisios to adopt zoning and
other land use regulations not inconsistent therewith" [7].
The capability established by this type of ordinance could be
a valuable tool in regulating unrestrained development on
many flood plains throughout the United States.
Recent years have seen the advent of "shoreland" zoning.
Michigan and Wisconsin are two examples. In Michigan, the
water resources commission is enabled to conduct studies
determining which areas of Michigan's shoreland are to be
considered "high risk". A high risk area is defined as an
area "of the shoreland which is determined. . .to be subject
to erosion." These areas can be controlled by zoning or-
dinances implemented by counties, cities or townships, sub-
ject to approval by the water resources commission. In ad-
dition, the commission prepares a shoreland management plan
which provides, among other things, "for the prevention of
shoreland littering, blight harbor development, and pollu-
tion" [8]. in Wisconsin, the Department of Natural Resources
must have a comprehensive plan as a guide for municipal or-
dinances regulating navigable waters and their shorelands
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for the preventive control of water pollution[9]. Counties
are specifically authorized to enact zoning ordinances re-
lating to unincorporated lands within 1000 feet of a lake,
pond or flowage or within 300 feet of a river or stream. If
the County ordinance does not meet the minimum standards of
the state Department, the Department must adopt such an ordi-
nance for the county[10].
Another potential means of regulating land use is the estab-
lishment of preventive measures to control soil erosion,
sedimentation and runoff. Traditionally, soil conservation
districts have had the primary role in this area; however, in
some states this role is limited to providing guidelines and
recommendations with no enforcement powers other than educa-
tion, persuasion and withholding financial and technical as-
sistance [11 ]. In Wisconsin, on the other hand, these dis-
tricts may formulate and the counties may adopt land use
regulations for unincorporated land; after the regulations
are approved by the electorate of the district, they are
valid and enforceable by the courts. Activities which may
be regulated include engineering operations, cultivation
methods, cropping programs, land retirement and exposing of
land by grading, filling, and clearing[12]. In its Model
State Act for Soil Erosion and Sediment Control, the Council
o£ State Governments has proposed similar powers for these
districts , but without the limitation of electorate ap-
proval [13 ].
The role of an areawide agency in this area could be direct
or indirect. The agency might replace the conservation dis-
trict as the regulatory body or it might have final approval
authority regarding regulations established by the district.
In some instances such a direct role for the agency may be
undesirable or politically not feasible [14] and the areawide
agency might be limited to an indirect role. For example,
the agency might be directed by statute to assist districts
in formulating regulations.
Indirect control over land use may be effected by the oper-
ating agency through its power to control the rate and size
of sewer extensions to unserved areas. The strategy of re-
straining undesired development through phase extension of
interceptor sewers has been implemented in the Metro system
of Minneapolis-St. Paul, where the policy has been to:
Phase interceptor extensions to promote
orderly and economic growth.
Extend interceptors into communities only
when the residents are assured of governmental
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capability to provide a full range of urban
services and to exercise adequate planning and de-
velopment control.
Prohibit extension of sewer systems into areas
where development should not occur. . .[15]
A lesson can be learned from the unfortunate results of an
effort to control development near Chicago through restric-
tion of interceptor extension size. The Northern Illinois
Planning Commission hoped to limit and control development
through the use of a small extension into an unserviced area.
The Metropolitan Sanitary District of Greater Chicago re-
sponded that this was economically unsound and that an ex-
tension of twice the size would be needed to satisfy the pro-
jected population of the area. The Metropolitan Sanitary Dis-
trict reasoning was sound, and the planning commission had
no legal authority to inhibit population influx by use of a
smaller pipe. The conclusion can be drawn that a regulatory
scheme is only as effective as the ability to carry it out.
Although the power of zoning is not explicitly in the enabling
legislation of the most waste treatment management agencies,
the possibility of influencing the zoning process should not
be overlooked. Formal or informal participation with the
agency(s) responsible for planning zoning policy allows the
waste treatment management agency to provide input to the de-
cisions surrounding land use; this occurs through both access
to and review of proposed zoning policy, and generation of
alternative policy. This will be more easily accomplished in
those agencies who are closely related to planning bodies
within the intergovernmental structure. For example, the
Metro Council of Minneapolis-St. Paul contains both the water
management agency and the land use planning agency within the
same organizational structure, affording the capacity for
continuing interaction and coordination.
Land use, and hence categories of water use, is clearly af-
fected by other factors such as the transportation modes
available to the area. For this reason, the agency should
seek active participation in the planning processes sur-
rounding extension of transportation services (especially the
location of roads) into undeveloped areas. In situations
like these, agencies with managerial or financial responsi-
bility or interactions with transportation activities, such
as the Metro Council of Seattle, will have less trouble
achieving coordination. In the same vein, areawide agencies
should also seek to contribute information to land use de-
cisions concerning expansion, extension or establishment of
utility services, schools and shopping centers.
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Another means of attaining direct control is through public
ownership, or placing restrictions on private land in a de-
velopment. Use of this technique is found in Ontario where
"5 percent of any total subdivision area (subdivision of land
is under the jurisdiction of the Ministry of Planning and
Development) is assigned to the local municipality for park
purposes; and, in conformance with the policy of maintaining
open water courses, 50 ft. strios on each side of streams
frequently are dedicated and placed in public ownership " [16].
Although this "assignment" system is not customarily used in
the United States, the majority of the agencies reviewed are
equipped with legislation permitting purchase and ownership
of land within their service areas.
It should be noted that in some instances such zoning regu-
lations might be challenged as being an unconstitutional
taking of land without compensation[17]. Factors which would
be relevant in a particular case include (1) whether the
enabling legislation establishes sufficient authority for the
ordinance [18] ; (2) whether some feasible uses of the land in
question are permitted; (3) whether the restrictions imposed
in a particular case bear a sufficient relation to the pur-
poses sought to be achieved by the ordinance[19]; and (4) the
amount of deferrence to legislative decision-making given by
the respective state courts[20].
In summary, water quality control can be greatly affected by
land use planning, but such planning has not been within the
powers of those agencies primarily concerned with water qual-
ity control. Therefore, the agencies concerned with water
quality control should either be given land use control power
-- which is highly unlikely -- or these agencies should be
given other devices which can influence land use which af-
fects water quality. Examples of such devices include par-
ticipation in the land use planning process, authority over
special or critical areas such as shorelands and flood plains,
authority to require dedication of land to prevent pollution
and soil conservation district controls.
PERMITS AND LICENSES
One of the most widely used forms of water pollution control
is the issuance of permits. Beginning on the federal level
with the 1899 Refuse Act, the practice of issuing permits to
control discharges has resulted in a myriad of permit types.
For the purpose of this discussion, permits are defined as
those written warrants granted by an authority giving the
receiver freedom to engage in a specific activity. Licensing,
on the other hand, is used to refer to warrants granted to
individuals, including individuals involved in maintenance,
monitoring, engineering and planning.
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Title IV of the Act (Permits and Licenses) requires that both
public and private discharges of pollutants must have a per-
mit. The permit system may be implemented by the state or
the Administrator of EPA, but if implemented by the state the
permit system must be approved by the Administrator. Permit
systems are not, however, limited to those activities re-
sulting in discharges into streams and public waters since they
also encompasses pretreatment. A state or waste treatment
management agency can, if it has the authority, establish a
permit system as a means of control. Since it would be a
violation to engage in a discharge activity without a permit,
the enforcement agency has only to prove that a suspected vio-
lator is discharging waste without a proper permit. More im-
portant than controlling non-permit-holders is the power to
regulate the discharge activities of permit holders through
stipulations: 1) setting criteria for siting, design and
construction as well as performance capability, 2) regulating
quality and quantity of effluents discharged, 3) requiring moni-
toring and inspection facilities of private users, and 4) re-
quiring pretreatment facilities and specifying pretreatment
standards for users of the treatment system that will enable the
regulating agency to achieve desired stream standards.
Permit programs can be subdivided into four types based on
the kind of regulation they are intended to achieve: 1) "hook-
up" permits are those permits intended to regulate the quantity
and quality of effluent discharged into a public sewer system;
their purpose is to regulate the quantity and quality of waste
entering a public treatment facility so that the facility can
achieve a degree of treatment resulting in an effluent com-
patible with areawide water quality standards, 2) permits
regulating point sources of pollution are issued to public or
private treatment facilities which discharge directly into
area waters; the intent of these permits is to regulate the
quantity and quality of effluent in order to achieve desired
stream standards, 3) permits regulating nonpoint sources of
pollution are issued to regulate activities or the use of
materials that can result in nonpoint pollution problems such
as the indiscriminant use of fertilizers, insecticides ,
herbicides, construction, etc., 4) permits of the afore-
mentioned types incorporating modifications of standards as
a function of geographic location; permits with this added
condition can be an effective means of influencing land use
activity in accord with an areawide plan.
Hook-up permits have been extensively used to regulate the
materials and engineering standards of sewer and sewer re-
lated construction of systems hooking into public treatment
works.
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As an example, the Metropolitan Sanitary District of Greater
Chicago requires permits for the construction of sewer hook-
ups serving residential building and industries, and the con-
struction of local government and industrial treatment works.
This permit system allows MSDGC to review the permit applica-
tion, with attention focused on "minimum engineering stan-
dards governing the design, construction and maintenance of
sewers and sewage systems. . .including requirements as to
types of materials, methods of installation, maximum permis-
sable rates in infiltration and other engineering para-
meters "[21]. Furthermore, inspection manholes are required
for all commercial and industrial buildings in order that
MSDGC technicians may inspect and monitor permittee dis-
charges .
No construction permits for sewer construction within any
municipality lying totally or partially within a flood plain
will be issued unless the municipality has a Flood Plain
Ordinance that the MSDGC has approved.
Control over privately owned sewers or sewage collection sys-
tems that discharge into a public treatment system or dis-
charge directly into area streams may be achieved through
the implementation of an operating permit plan. A statutory
model mandating such a plan can be found in "Proposals of the
MSDGC for the Amendment of Certain Rules and Regulations. . .
of the Illinois Stream Pollution Control Board Rules and
Regulations": "No person who owns and operates an inter-
connected system of sanitary sewers and/or combined sewers
consisting of more than one mile of pipe that does not dis-
charge to a unit of local government shall cause or allow the
use or operation of its part of the system of sewers. . .with-
out an Operating Permit issued by the Agency. . ."[22]. This
plan enables the administering agency to regulate engineering
and operating parameters of non-public systems. The duration
of this type of permit may be either permanent or, as in the
case of MSDGC, of a limited period "in order to facilitate
basin planning, to coordinate Operating Permits with future
deadlines, and to maintain intensive control over new or ex-
perimental processes"[23].
A third type of permit system regulating discharge into a
public system is the industrial waste discharge permit sys-
tem. Metro Seattle requires an industrial waste discharge
permit of "each person discharging or proposing to discharge
industrial waste into a public sewer, private sewer or side
sewer tributary to the Metro System"[24]. This plan achieves
control over both the quantity and quality of flow received
by Metro treatment works. The ordinance establishing the
plan specifies: "Any person making or proposing to make a
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change in an existing Industrial Waste Discharge which does
or will substantially change the volume of flow or character-
istics of the waste or establish a new point of discharge
shall apply for and secure an Industrial Waste Discharge Per-
mit" [25]. Additional responsibilities of permit holders are:
1) pretreatment facilities, if so required, at holder's ex-
pense; 2) waste analysis reports and sampling manholes, if
required; 3) inspection by Metro personnel, if so required [26].
This type of permit has obvious potential as a tool for insti-
tuting the pretreatment requirement of §208 (b) (2) (C) (ii) of
the Act.
Regulation of point sources through a permit system is
achieved by requiring permitees discharging into waterways to
submit plans and specifications of proposed construction; to
report of discharge activity: to provide access for the pur-
pose of monitoring discharge, and to maintain an effluent
commensurate with appropriate water quality standards. In
many instances the legislation that enables an agency to
regulate discharges into public treatment facilities through
permits also enables the agency to regulate privately oper-
ated treatment facilities through the same permit system.
The MSDGC's "Sewer Permit Ordinance" contains language that
permits the MSDGC to regulate private treatment facilities'
effluent[27] .
Feedlot operation constitutes a point source of water pollu-
tion that is a major water quality problem in many agricul-
tural areas. Some legislation has been enacted that suggests
that feedlot operations can be effectively regulated through
a permit system. Nebraska's Rules and Regulations pertaining
to livestock waste control requires the operator of a proposed
or existing livestock operation to apply for a permit. When
livestock waste control facilities are required they must be
designed by the U. S. Department of Agriculture, the Soil Con-
servation service, a registered professional engineer, or other
qualified person in order to prevent discharge of objectionable
runoff according to the Nebraska law. Feedlot permits in
Nebraska further stipulate that the permit can be revoked or
suspended if 1) Nebraska Water Quality Standards are violated,
2) livestock wastes are permitted to enter adjoining property,
or 3) if relevant facts are misinterpreted or withheld[28].
Legislation in Iowa empowers the Water Quality Commission of
the Department of Environmental Quality with the right to
deny permits for the installation or operation of a poultry
or livestock operation that does or may cause pollution [29].
The Council of State Governments has also suggested a model
state act for confined animal feeding environmental con-
trol [301 .
Although some examples of legislation aimed at regulating
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nonpoint sources of water pollution are at hand, a great deal
more legislation and enforcement is required to achieve ade-
quate control of nonpoint pollution emanating from mining
activities, agricultural activities, logging, construction,
and storm water runoff.
Stream pollution resulting from pesticide and herbicide uses
in agriculture is gaining recognition as a problem that will
require increased regulation. Presently, most states have
laws requiring registration of pesticide and herbicide
materials and in some cases the registration (licensing) of
commercial appliers is required. While use of pesticides and
herbicides will undoubtedly continue, tighter regulation of
their use is required. Regulation of the amount and type of
pesticide/herbicide used in an area could be achieved by
requiring permits for pesticide use limiting the amount and
types of pesticides/herbicides as a function of water quali-
ty control. The role of an areawide agency in achieving such
a permit system would probably be one of encouraging the ap-
propriate state agency (Agriculture) to adopt such a system.
As an example, in New York pesticides must be registered an-
nually with the Commissioner of Environmental Conservation
[31]. Additionally, permits must be obtained from the Com-
missioner for the commercial sale, purchase and custom ap-
plication of pesticides designated by the Commissioner as
"restricted use pesticides"[32]. The Commissioner may also
issue rules and regulations regarding the use of pesticides,
and these rules and regulations shall encompass all reason-
able factors which the Commissioner deems necessary to pre-
vent damage or injury to health, property and wildlife[33].
Fertilizers leached from fields also constitute a nonpoint
stream pollution problem that requires additional attention
on the part of water quality management agencies. Tradition-
ally the cost-benefit decisions concerning fertilizer use
have been made solely by the individual farmers using fer-
tilizers, but with the increased knowledge of the impact that
fertilizer use has on streams it becomes increasingly obvious
that the costs of fertilizer use are also a public concern.
Regulation of fertilizer use can be achieved through a per-
mit system stipulating amounts, kinds , and conditions of
fertilizer applications. Again, the role of an areawide
agency in achieving such a system will probably be one of
encouraging the appropriate agency (Agriculture) to adopt
such a system. Iowa has legislation which permits the state
Department of Environmental Quality to adopt rules relating
to the distribution and use of agricultural chemicals such
as pesticides and fertilizers [34] . Violation of such rules
constitutes a misdemeanor[35].
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A permit system to regulate nonpoint pollution emanating from
mining activities are now being strengthened in many states
and promise to be an effective means of regulating these pol-
lution sources. Abandonment of the notion that mineral re-
source exploitation and clean water are mutually exclusive
concepts must occur before effective controls on mining ac-
tivities can be attained. Several states have recognized
the interrelatedness of water quality and mining practices
and hove adopted legislation regulating mining activities
thro-.iqb issuance of permits and licenses . Two examples are
Ohio and Pennsylvania. "Ohio now requires that when active
mines are abandoned, they must be sealed so as to minimize
sedimentation and mine drainage. Pennsylvania has a substan-
tially tougher law and a more active regulatory program.
Since 1965 Pennsylvania has subjected mine operations to a
permit requirement. State approval of a plan of wastewater
disposal is now a condition to mining operations. State
authorities now inspect each active mine twice a year. Both
Ohio and Pennsylvania have cracked down on strip mining. In
both states strip miners are required to obtain a license
and post a surety bond to guarantee performance of their
statutory duties to restore mined areas. Pennsylvania seems
to apply its requirements more rigorously and has inspected
700 strip mine sites to check for acid drainage"[36].
Implementation and consideration of measures to regulate con-
struction related runoff are just getting under way in some
states. The National Water Commission's "Legal Study 18" [37]
notes legislation in Maryland which would require soil con-
servation district approval before earth moving can begin and
Iowa's soil conservation law specifically requiring erosion
control practices at construction sites including residential
units and roadways, Suggested legislation prepared by the
Council of State Governments includes construction activities
among "land disturbing activities which should be controlled
to prevent sedimentation and pollution " [38].
A permit-like system has been employed by the Metro of
Minneapolis-St. Paul to regulate pollution eminating from
septic systems within the expanding urban area[39]. Generally
county or local boards of health have exercised the septic
tank permit authority.
The utility of a permit system is not limited to simply regu-
lating specific point and nonpoint sources of pollution, and
imposing pretreatment standards on users of public sewage
systems. An areawide agency may selectively restrain un-
desirable development (industrial or residential) by setting
higher permit standards where development would have deleteri-
ous effects on area waterways. This does not imply that
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arbitrary standards are to be set or that the standards which
are set as stipulations of permits reflect true costs of the
activities regulated by the permit.
Prior to the implementation of a permit system a water pollu-
tion control agency must assess its means and abilities to
implement a permit system that will result in the water quali-
ty standards desired. This must include assessment of an
agency's capability to deal effectively with the problems
generated by a permit system and the water quality desired.
The National Water Commission's "Legal Study 18" presents
the following comprehensive list of problems encountered in
achieving optimum water quality and protection through a
permit system:
. . .difficulties drafting the enabling
legislation broad enough to reach all signifi-
cant existing and potential waste dischargers,
fixing the impact point of the permit (at what
points are controls exerted over the discharger's
activity), identifying in the field dischargers
covered by the law, establishing fair and workable
procedures for the issuance of permits, determining
the policy to be applied in establishing permit
conditions (are the conditions to be based on
receiving water standards or some uniform formula
for wastes removal), obtaining adequate informa-
tion about water quality and waste characteris-
tics , evaluating and applying scientific and
technical information concerning water quality
criteria and waste treatment processes, deciding
for how long the permit is to be valid and how
it should be revoked or modified, determining
whether a fee is to be charged for issuance of
a permit and, if so, on what basis to establish
the fee, assuring competent treatment of plant
operation through programs for operator training
and certification, providing adequate program
follow-through (reporting, monitoring, inspec-
tions, stream surveillance, etc.), and enforcing
violation of permits by prompt and effective
measures [40 ].
In summary, any desired degree of water quality control in
an area of given size and development implies the size of
qualified staff as well as amount and kind of field and
laboratory hardware necessary to maintain the desired ef-
fluent control level. In establishing the degree of control,
that can be attained or setting a goal for additional con-
trol an agency must have or be able to acquire staff to
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review permit applications meaningfully, this of course, im-
plies engineers capable of reading and interpreting engi-
neering drawings of the permittee's facilities, as well as a
clerical staff to handle receiving, filing, and billing of
permit applications. Once issued a permit requires periodic
monitoring by the regulatory agency in order to insure com-
pliance with the stipulations. The effectiveness of permit
enforcement is governed by the frequency of sampling, the
type of sampling that is conducted, and the ability to enter
and obtain samples randomly. The size and professional skill
of the sampling staff and the sophistication of the sampling
techniques selected are critical factors in the successful
operation of a permit system. An agency capable of gathering
and analyzing a permittee's effluent will be able to achieve
the greatest degree of effluent regulation.
As the above discussion indicates, skilled personnel are
critical to the successful operation of a permit system or
any other regulatory system. In a recent editorial in the
Journal of Water Pollution Control, this point was emphasized:
"The operator problem, stated in its broadest sense, is the
need to develop a well-trained cadre of skilled talent cap-
able of controlling the sophisticated processes that are be-
coming integral parts of modern treatment plants"[41]. The
author goes on to note that in addition to higher wages com-
mensurate with the level of skill expected a system of oper-
ator certification is necessary. From the evidence obtained
in this study, operator certification need not be limited to
personnel of the areawide agency and, when pretreatment re-
quirements are a requirement for a permit, certification of
the operator of these facilities should also be required.
STANDARDS
For the purposes of this report the two-part definition of
"standards" found in the 1965 Federal Water Quality Act is
used: (1) the establishment of water quality criteria ap-
plicable to interstate waters or portions thereof within the
states, and (2) the adoption of a plan for implementation and
enforcement of such criteria[42]. "Criteria may be defined
as the upper limits on concentrations of given wastes or on
water temperature within a watercourse. Three types of water
standards (water quality standards), are of concern here:
(1) ambient or stream standards, which focus on waters re-
ceiving discharges; (2) effluent standards, with the focus
on discharges into receiving waters ; (3) pretreatment stan-
dards, with the focus on wastewater discharged into public
treatment works. Theoretically, standards perform three
vital functions. First, standards serve as objective mea-
suring sticks , replacing the vague concept of pollution with
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quantifiable parameters. Secondly, standards act as con-
venient baselines for determining eligibility for a permit.
Finally, water quality improvement can be translated into
quantifiable terms by using past and present standards as
baselines for measuring improvement.
Considerable controversy has been generated concerning the
efficacy of stream versus effluent standards. Prior to the
Act much of the federal effort was directed toward implemen-
tation of stream standards. However, incorporated in the
Act are provisions for federally promulgated effluent stan-
dards. This approach is designed to aid state and local
enforcement efforts, as stream standards have been shown to
be poor devices for initiating enforcement proceedings. The
problem arises in the difficulty of establishing the culpa-
bility of dischargers surrounding a watercourse where stream
standards have been violated. The effluent standards, once
promulgated, will alleviate this problem by establishing
waste load limits at the point of discharge. This approach
has resulted in a strategy where the states are required to
submit to the EPA a list classifying all segments of rivers
as "effluent limited" or "water quality limited." "An ef-
fluent guidelines limited segment would meet water quality
standards after application of best practicable control
technology for industry and secondary treatment for municipal
plants. All other segments are water quality limited"[43].
Effluent limitation standards are varied according to classi-
fication's of industrial users, but even within a user
category uniformity of standards is not necessary if the
quality of the receiving water so requires. Although it ap-
pears that EPA is attempting to achieve in-stream quality
through effluent regulation, both ambient and effluent stan-
dards must still be met.
The ability to formulate water quality standards is often
found in the enabling legislation of wastewater management
agencies, from regional to less than areawide. Wording
typical of such legislation is found in the Delaware River
Basin Compact; "the commission may adopt and from time to
time amend and repeal rules, regulations and standards to
control such future pollution and abate existing pollu-
tion. . .as may be required to protect the public health or
to preserve the waters of the basin for uses in accordance
with the comprehensive plan" [44]. It should be noted that
"while the state can and should set maximum allowable
limits, local communities and their inhabitants have an in-
herent right to determine the type of environment they want
to live in. This right includes the right to adopt and en-
force more stringent standards"[45].
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The pretreatment standards required by §208(b) (2) (C) (iii) can
be achieved either directly or indirectly. Direct control is
the product of legislation enabling the operating agency to
require users to provide pretreatment facilities and/or to
meet a standard of wastewater entering the treatment plant.
The following is used to illustrate such legislation, but it
is apparent that the clause could be used to enforce com-
pliance with ambient or effluent standards as well:
It shall be unlawful for any person to cause
or allow to be discharged sewage or wastes of any
kind into any waters, or sewerage system under the
jurisdiction of the Sanitary District which does
not conform to the criteria or water quality stan-
dards established and adopted by the Sanitary Dis-
trict ansd as set forth in. . .this Ordinance [46].
In formulating such legislation, care should be taken to in-
clude provisions permitting the agency access to private dis-
charge flows:
In order to ascertain whether or not the sewage
system conforms to the criteria or water quality
standards of the District, the District may
use any appropriate method or device which will
lead to such a determination. . .
Each person covered by this Ordinance shall
provide on the premises in his possession, a so-
called control-manhole or any other device or
facility suitable and appropriate to enable the
Sanitary District to conduct gauging and sampling
operations to determine conformance with the cri-
teria and water quality standards of the District.
Representatives of the District shall have the
right during reasonable hours to enter upon the
premises of each such person for the purpose of
setting up measurement or sampling devices or
facilities, or of inspecting or examining them,
or of conducting necessary or desirable measuring,
gauging and sampling operations [ 47].
Occasional violations of pretreatment standards can be regu-
lated through "accidental discharge" clauses, such as that found
in the Sewage and Waste Control Rules and Regulations for the
Metropolitan Disposal system of Minneapolis-St. Paul:" Acci-
dental discharges of prohibited waste into the metropolitan dis-
posal system, directly or through another disposal system,
or to any place from which such waste may enter the metropolitan
disposal system, shall be reported to the Chief Administrator
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by the person responsible for the discharge, or by the owner
or occupant of the premises where the discharge occurs,
promptly upon obtaining knowledge of the fact of such dis-
charge" [481. As may be deduced from this clause, standards
serve as efficient means of totally prohibiting the discharge
of substances determined by the agency as deleterious to the
successful operation of the treatment facility, hence achieving
compliance by the facility with regional effluent standards.
Pretreatment standards may be effected indirectly through
stipulations of discharge permits. Legal precedent demands,
however, that these standards must be uniformly applicable
within categories of users, i.e., the permit issuance must
be based on fair and evenly applicable standards.
Standards for nonpoint sources of pollution can also be
established. As an example, construction related run-off
could be made subject to standards. The term "construction
standards" embraces a wide range of standards aimed specifi-
cally at regulating the run-off, sewage, refuse, etc., re-
sulting directly from construction projects. This type of
standard can be a viable technique of fulfilling the require-
ment of control of nonpoint sources in §201(c). It has the
advantage of being available to agencies of small jurisdic-
tion, such as the town, village or township. Considered in
this category are building codes, which represent criteria
for operation and maintenance of buildings.
Standards regulating construction methods and materials may
also be achieved directly through ordinances governing the
design characteristics and materials of construction, or in-
directly, through permits. One example of the former can be
found in the Delaware River Basin Compact, where the DRBC is
empowered to: "Establish standards of planning, design and
operation of all projects and facilities in the basin which
affect its water resources. . ."[49]. Standards work to ef-
fectively complement permits. The sewer permit system of the
Metropolitan Sanitary District of Greater Chicago outlines
specific engineering and construction criteria which must be
met before an applicant is eligible for a permit. Included
among these criteria are requirements for access points and
sampling manholes to allow MSDGC to monitor the wastewater
of the permittee[50].
One strategy of pretreatment control might be a differential
application of standards throughout an area. This tactic
might be used by itself, or in conjunction with a permit
system, to influence the location of development (industrial
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or residential) within the agency's geographical jurisdiction.
Still another possibility would be the legislative establish-
ment of standards defining criteria of mining, agricultural,
and feedlot construction and operation.
The foremost problem in implementation of standards systems
is enforcement. In the case of effluent standards, enforce-
ment is dependent on two variables: (1) adequate monitoring
and surveillance and (2) effective sanctions. Ambient stan-
dard enforcement is a more complex matter. The National
Water Commission's "Legal Study 18" lists three fundamentally
different approaches to enforcing receiving water standards [51]
First, there is the "abating standards approach." This is
simply surveillance followed by agency investigation if stan-
dards are violated. The dischargers,, when identified, are
charged with violations and so notified. If the violation is
disputed, a hearing is held before the control agency. De-
pending upon the outcome of the hearing, the discharger may
be fined, jailed, or an injunction may be ordered against
further operation of his facility.
The second method is that of effluent charges, which involves
government imposition of charges on the discharges of private
users, incorporating the heretofore unacknolwedged costs of
resource use. (The resource being the assimilative capacity
of the stream.) Ideally, charges would be adjusted in such
a manner as to induce the discharger to reduce his waste load
output to the point where the concentrations are equal (or
lower) than the desired standards.
The final alternative for implementing stream standards is
coupling ambient and complementary effluent standards. This
is what the Act requires. With adequate information gathering
capability and sanction power, this combination could achieve
water quality standards at costs comparable with the other
least-cost method, effluent charges.
In summary, monitoring equipment and personnel are necessary,
but the sanctions available to the agency appear to be a more
critical tool. Sanctions may include penalties, surcharges
and the right to refuse service to those in violation of the
standards. These sanctions should be available if an effec-
tive standards system is to be carried out.
PRICING MECHANISMS
Various pricing mechanisms can be used (1) to induce minimi-
zation of costs associated with waste disposal and (2) to
encourage reduction of pollutants discharged into a service
region.
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One variety of pricing mechanism is that which utilizes pay-
ments or subsidies to private waste dischargers to encourage
in-plant changes resulting in lower pollutant output. These
may take the form of tax write-offs for capital outlays in
pollution control devices or as lump-sum payments of such a
value as to cover the costs to the discharger of removing a
given amount of material from his wastewater. In specific
state cases, Wisconsin allows an income tax deduction of the
cost of acquisition of abatement facilities[52]. Massachusetts
allows property tax exemptions for facilities[53], while
Illinois exempts facilities from sales taxes[54].
On the state level, the tax write-off mode is far more popu-
lar than the direct subsidy. This is true on the federal
level also, where tax incentives are enabled via §169 of the
Internal Revenue Code[55]. It appears that legislators feel,
probably with some justification, that the American people
would rather see private pollution abatement achieved through
tax incentives than through monetary payments drawn from pub-
lic monies.
Although there is some controversy concerning the efficacy
of this tax incentive mechanism, most authorities agree that
the federal program, as it is currently constituted, is in-
sufficient to achieve the goals of cost minimization and re-
duced effluent loads. Criticisms frequently leveled at tax
incentive systems include: (1) such systems shift the cost
of abatement from polluter to the government or consumer[56],
(2) they cause resource misallocation, (3) they aid those in
lesser need of aid (i.e., they are more favorable to the
larger corporations), (4) such systems constrict the tax base
and build hidden costs into the tax system[57]. Additionally,
these systems have been characterized as overemphasizing
abatement "hardware" at the expense of alternative methods of
improving water quality such as in-plant changes in produc-
tion process on materials. The consensus seems to be that to
make the federal program work, incentives (write-offs, sub-
sidies, etc.) should be extended to operations and mainten-
ance as well as initial capital investment. Such a program
would clearly involve a much larger expenditure than the
current program.
The most widely practiced pricing mechanisms are variations
on the "charge"" theme. One theoretical form is the full
cost recovery user charge (effluent charge) . According
to one author, "effluent charges strive to 'intern-
alize' the cost of water use, that is, to cause a cost for
water use to be included in production as the legitimate re-
source cost that it is, so that this cost will play a role
in all decision-making involving the use of water"[58]. For
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several reasons the eftluent charge is not used extensively
in the United States. This type of charge demands a sophis-
tication in both implementation and administration not found
in many waste treatment management agencies. A large initial
capital investment is necessary to finance studies necessary
to establish allocation of costs to dischargers, as well as
monitoring hardware to insure that correct charges were being
levied against the user. On philosophical grounds, the ef-
fluent charge has been labeled a "license to pollute" -- i.e.,
that it is a tacit acknowledgement of the discharger's right
to dispose of undesirable materials in public waterways. Pro-
ponents of the effluent charge counter that the charge, if
correctly implemented, creates a dynamic system in which dis-
chargers are truly motivated to install and maintain pollu-
tion reducing equipment (especially when coupled with strin-
gent water quality standards).
Much more common is the "user" or "sewer" charge. The user
charge is differentiated from the full cost recovery user charge
on the grounds that the latter purportedly reflects all exter-
nalities involved in water use, while the former represents only
the costs associated with operation and maintenance of treat-
ment facilities. There are several methods for assessing
user charges. The flat rate method "allocates waste treatment
costs among all users on the basis of some unit, such as a
percentage of the water bill, numbers of employees, a block-
rate schedule related to water intake or some combination of
these"[59]. In the second method "a basic sewer charge re-
lated to volume is levied on all users of the waste treatment
system"[60]. A third type of charge is the surcharge. In
this case, discharges above a certain volume or strength are
tabulated and billed to the user in addition to the normal
user charge. User charges may also be constructed to include
other characteristics of the waste discharged into the system
such as BOD, toxicity, suspended solids and delivery flow rate.
Most municipal user charges are of the flat rate type and are
directed toward the end mentioned above: absorption of oper-
ation and maintenance costs. This method has the deficiency
of offering no incentive to reduce volume of consumption.
However, it has been repeatedly shown that assessing charges
individually on a volume-per-user basis does act as an incen-
tive for large private users to evaluate their operation and
possibly reduce both the volume used and the strength of
wastes discharged. Surcharges also have the advantage of pro-
viding a fair and equitable base for proportionally allocating
treatment costs.
Aside from the virtue of obtaining additional revenue for an
agency, the surcharge serves as a viable alternative to (1)
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increasing treatment plant capacities in areas of high indus-
trial usage or development, or (2) reducing incoming waste
strength through pretreatment requirements.
As noted in Section IV of this report, §204 (b) (1) requires
that the system of charges assure that each recipient of
waste treatment services will pay its proportionate share of
treatment costs. Thus, the flat rate or volume methods of
charging will not, most likely, comply with the act.
Due to the necessity of maintaining discharge monitoring
(either permanent or periodic), pricing mechanisms are not
amenable to control of nonpoint sources of pollution unless,
as in the case of feedlot runoff, the amount and quality of
the wasteload of the discharge(s) can be quantified. In sum-
mary, charges are a potentially powerful method of controlling
point discharges and, in the case of user charges, available
to the smallest agency. Although there may be legal con-
straints , adjustment of charge rates to reflect the extent of
development desired within various sections of the service
area should be considered as a feasible method of controlling
the location of facilities as required in §208 (b) (2) (C) (ii) .
Implementation of charge systems, of course, involves enabling
legislation. One example can be found in the Sewage and
Waste Control Regulations for the Metropolitan Disposal Sys-
tem of Minneapolis-St. Paul:
No statement contained in this article shall be con-
strued as preventing any special agreement or arrange-
ment between the Sewer Board and any discharger
whereby a waste of unusual strength or character may
be accepted into the Metropolitan disposal system for
treatment, subject to payment therefor, by the
discharger[61].
A perhaps more comprehensive clause is illustrated by the
Delaware River Basin Compact:
The commission may from time to time after public
notice and hearing fix, alter and revise rates,
rentals, charges and tolls and classifications
thereof, for the use of facilities which it may own
or operate and for products and services rendered
thereby, without regulation or control by any office,
department or agency of any signatory party [62].
Implementation also requires personnel and equipment. Gen-
erally speaking, to administer a charge system, the agency
needs:
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1. A professional staff (sanitary engineers, chemists,
and possibly economists) capable of assessing costs
of treatment, allocating costs to users, and further
adjusting costs in order to influence the location
and concentration of users according to the areawide
p 1 an.
2. A clerical staff to carry out billing procedures.
3. Adequate sampling, monitoring, and metering equip-
ment with qualified personnel to operate the same.
MISCELLANEOUS REGULATORY MECHANISMS
The more direct systems of regulations available to an area-
wide agency have been detailed in preceeding sections. In
this section we will briefly comment on some additional means
of regulation which can be employed by an agency to attain its
goal of areawide abatement of water pollution.
Government purchases account for a considerable segment of
the economy and are made after specific criteria governing ac-
ceptable quality and cost have been satisfied. A component of
government consideration prior to purchasing should be the
potential effects on water pollution of the item to be pur-
chased. In this regard, the appropriate areawide agency should
seek the power of reviewing proposed government purchases and
make recommendations based on water quality criteria. An ex-
cellent example of government purchasing power affecting
practices can be seen in the practice of requiring contractors
to state that they do not practice discrimination in employ-
ment, etc. A similar stipulation regarding non-pollution
might be employed by government purchasers .
Various forms of persuasion can be implemented by an areawide
agency to attain water quality goals. The effectiveness of
the Delaware River Basin Commission rests, in a large sense,
in persuading dischargers to comply with standards, regula-
tions, and local allocations[63]. The DRBC, like most agen-
cies, would rather win compliance through persuasion and vol-
untary compliance than through the invocation of stringent
legal sanctions. Legal sanctions are the "ace in the hole"
brought into play as a last resort when voluntary compliance
schedules and threats of legal action or hearings have failed
to elicit compliance. Persuasion may often be the only tool
available to an agency when it attempts to deal with the often
nebulous causes of nonpoint pollution. Frequently, a water
pollution control agency does not have legal power necessary
to implement the needed control. N. William Hines describes
an excellent example of the necessity of exercising regulation
through persuasion in the case of soil erosion control as well
as the need for supplemental legislation:
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Today, there are 3,000 soil conservation districts.
However, only eight of these districts currently
exercise regulatory powers over land use. Typically,
soil conservation districts have relied wholly on
voluntary adoption of conservation practices by
individual farmers. Federal cost sharing for
conservation improvements provides the major
incentive for assumption of individual respon-
sibility to carry out an erosion-control project,
and federal assistance is conditioned on acceptance
of an approved soil conservation program. Enforce-
ment of promised conservation practices in soil
conservation districts has traditionally been ac-
complished through a policy of friendly persuasion.
While the voluntary approach to erosion control
has achieved significant gains, the pool of land-
owners who can be induced to act by offers of
financial and technical assistance may now be
about exhausted. If soil erosion is to be brought
under control in this century, the need to adopt
mandatory erosion control measures seems clear[64].
A great deal of the regulatory effectiveness of an areawide
agency is attributable to its use of publicity and its public
image. Effective use of public education and publicity
create an image of "credibility." An agency that can sell
itself as a fair and effective regulator and manager will
have less difficulty in performing its various regulatory
functions.
A creative and effective management of an areawide agency
should have an eye for publicizing the advantages of and need
for water quality control. Public displays, printed materials,
letters to newspapers, and a speakers bureau serving fraternal
organizations, community action groups, schools, etc., are
avenues for informing the public of areawide plans, pollution
problems, and the activities of the agency. Educating the
public through the various forms of publicity not only helps
to gain support for the agency's activities but also serves
as a means of obtaining useful feedback and new ideas that
will better enable an areawide agency to plan for the future.
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SECTION VIII
NOTES
1. Yannacone, and Cohen, Environmental Rights and Remedies,
Lawyers Co-Operative Publishing Co. 1972, p. 556.
2. Maryland Planning and Zoning Law Study Commission Final
Report, December, 1969.
3. Maryland Code Art. 66B, §3.06(1970 Replacement).
4. Vermont Stat. Ann. tit. 10, §6086(Supp. 1972).
5. Maine Rev. Stat. Ann. tit. 12, §683 et seq., (Supp. 1972),
6. Hagman, E. G., Urban Planning and Land Development Con-
trol Law, pp. 77-8(1971) ; see: Hawaii Rev. Stat. §§205-1
e_t seq. (Supp. 1972).
7. Delaware River Basin Commission, Delaware River Basin
Compact, §6.2(a).
8. Michigan Shorelands Protection and Management Act of
1970, Act 245, Public Acts of 1970.
9. Wisconsin Stat. Ann. § 144.26 (Supp. 1973).
10. Wisconsin Stat. Ann. § 59.971(Supp. 1973).
11. See, e.g., Iowa Code Ann. §467A.7(1971); Ohio Rev. Code
§1501.20(1972); and N.Y. Soil Conservation Districts
Law §9 (McKinney Supp. 1972). For elaboration of soil
conservation districts role in Iowa see Contemporary
Studies Project: Impact of Local Governmental Units on
Water Quality Control, 56 Iowa L. Rev. 804, 895-900, 1971,
12. Wisconsin Stat. Ann. §92.09, 92.10 (Supp. 1973).
13. Model State Act for Soil Erosion and Sediment Control,
Council of State Governments, 1973 Suggested State
Legislation, Vol. XXXII.
14. The Council of State Government's Workshop on Soil
Erosion recommended that responsibility for an erosion
and sediment regulatory program be placed in conserva-
tion districts. This responsibility would be in con-
junction with, but would not replace, those state and
local regulatory programs concerned with quality of
soil and water resources and pollution abatement
- 152 -
-------
activities. Explanatory Statement, Model Act for Soil
Erosion and Sediment Control, 1973 Suggested State Leg-
islation, Vol. XXXII.
15. Metropolitan Council of the Twin Cities Area, Metropoli-
tan Development Guide-Sanitary Sewers Policies, System
Plan, Program, January 1970, p. 11-13.
16. Clough, David A., "Wastewater Management in Metropolitan
Toronto ," Journal of the Water Pollution Control 'Federa-
tion , January 1971, p. 26.
17. Bosselman, Callies and Banta; The Taking Issue — An
Analysis of Constitutional Limits of Land Use Control
(Council on Environmental Quality,1973).
18. Anderson, American Law of Zoning §3.10(1968).
19. Anderson, American Law of Zoning §2.22(1968).
20. Anderson, American Law of Zoning, §2.14(1968).
21. Metropolitan Sewer District of Greater Chicago (MSDGC),
Sewer Permit Ordinance, January 1970, 3.
22. Lavin, Alan S., In the Matter of Effluent and Water Quali'
ty Standards RevriTion: Proposals of the MSDGC for the
Amendment of Certain Rules and Regulations Contained in
Chapter 3 of the Illinois Pollution Control Board Rules
and Regulations , MSDGC^ Allan S~. Lavin attorney, Chicago,
1972, p. 7.
23. Ibid., p. 9.
24. Municipality of Metropolitan Seattle, Resolution No. 610
Regarding the Control and Disposal of Industrial Waste
into the Metropolitan Sewerage System, 1965, 5-01.
25. Ibid. , p. 8.
26. Ibid.
27. MSDGC, "Sewer Permit Ordinance," op. cit.
28. Rules and Regulations Pertaining to Livestock Waste Con-
trol, Nebrasks Dept. of Environmental Control, 1972; En-
vironment Rptr - State Laws, 836 :0581(BNA, 1973).
29. Iowa Code Ann. §455B. 32(3) (Supp. 1972).
- 153 -
-------
30. Model State Confined Animal Feeding Environmental Con-
trol Act, The Council of State Governments, 1973 Sug-
gested Legislation, Vol. XXXII, p. 29.
31. New York Envir. Conservation Law §33.0701 (McKinney
1973) .
32. New York Envir. Conservation Law §33-0901 et seq. ,
(McKinney 1973).
33. New York Envir. Conservation Law § 33-0303 (3e) (McKinney
1973).
34. Iowa Code Ann. §§455B.100 and 455B.101 (Supp. 1972).
35. Iowa Code Ann. §455B.105(Supp. 1972).
36. Hines, William N., Public Regulation of Water Quality
in the United States, National Water Commission Legal
Study No. 18, December 1971, p. 390-391.
37. Hines, op. cit., p. 410.
38. Model State Act for Soil Erosion and Sediment Control,
The Council of State Governments, 1973 Suggested
Legislation, Vol. XXXII, p. 11.
39. Metropolitan Sewer Board of the Twin Cities Area, Sewage
and Waste Control Rules and Regulations for the Metro-
politan Disposal System, 1971, §6-1.
40. Hines, op. cit. , pp. 277-8.
41. Pierich, P. J., "The Operator Problem," Journal of the
Water Pollution Control Federation, February, 1973, p.
398.
42. 33 U.S.C. §1160 (1970) .
43. Environmental Protection Agency, Statement of Policy for
Implementing Certain Requirements of the 1972 Water Pol-
lution Control Act, February 1973, p. 14.
44. DRBC, op. cit. , §5.2.
45. Lavin, Allan S., Frederick M. Feldman and Sanford R.
Gail, "Local Government - The Enforcer," Journal of the
Water Pollution Control Federation, February 1971,
p. 191.
46. MSDGC, Sewage and Waste Control Ordinance as amended,
1972, Art. 3. §1, p. 5.
- 154 -
-------
47. Ibid., §2.3.
48. Metropolitan Sewer Board of the Twin Cities Area, Sewage
and Waste Control Rules and Regulations for the Metro-
politan Disposal System, 1971, §5-15.
49. DRBC, op. cit., §3.6(b).
50. MSDGC, op. cit., §3.
51. Hines, pp. cit., p. 380.
52. Wisconsin Stat. Ann. §71.04(2b).
53. Massachusetts Ann. Laws ch. 59, §5(1971).
54. Illinois Ann. Stat. Ch. 120, § 439.102(a) (Smith-Kurd 1972),
55. Int. Rev. Code of 1954, §169.
56. See; Reitze and Reitze, Tax Incentives Don't Stop Pol-
lution, 57 ABAJ 127, 131(TF7l)7"
57. See generally: Givelber and Schaffer, Section 169 of the
Internal Revenue Code; An Income Tax Subsidy for the
Control of Pollution, 14 Ariz. L. Rev. 65(1972); McDaniel
and Kaplinsky, The Use of the Federal Income Tax System
to Combat Air and Water Pollution: A Case Study in Tax
Expenditures, 12 BC Indus, and Com. L. Rev. 351(1971).
58. Fifer, C. Lee Jr., Effluent Charge Systems: Analysis of
and Legislation, Center for the Study of Science, Tech-
nology and Public Policy, Charlottesville, Virginia,
1971, p. 9.
59- Kneese, Allan V., and Blair T. Bower, Managing Water
Quality: Economics, Technology, Institutions, Resources
for the Future, 1968, p. 165.
60. Ibid.
61. Metropolitan Sewer Board of the Twin Cities Area, op.
cit., §5-13. —
62. DRBC, op. cit., §3.7.
63. DRBC, 1969 Annual Report, p. 6.
64. Hines, op. cit. p. 401.
- 155 -
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SECTION IX
ACKNOWLEDGMENTS
Professors Richard S. Howe and Nicholas L. White of Indiana
University School of Public and Environmental Affairs and
School of Law, respectively, directed the substantive work of
this project and take editorial responsibility for preparing
the final report.
Participating in the research and in the preparation of this
report were senior researchers George A. Fruit, J.D., and
Michael R. Gill, M.P.A., and researchers Gary Brown, Sandra
Dukes, Walter Hasenmuller, Nina Hatfield, F. James Helms,
Steven Johnson, David Mallon, Robert McConnell, John McGee,
Cliff Potter, John Sharpe, William D. Welty, all from the
Bloomington Campus of Indiana University.
A number of individuals provided advice and counsel during
the study. The Board of Advisors to the project was comprised
of Elwood Barce, Vice President, Paul D. Speer and Associates,
Chicago, Illinois; Blair T. Bower, Associate Director, Quali-
ty of the Environmental Program, Resources for the Future,
Washington, D. C.; N. William Hines, J. D., Professor of Law,
University of Iowa; Thomas McKewan, Director, Environmental
Service, State of Maryland, Annapolis, Maryland; John G.
Morris, President, J. G. Morris Environmental Engineering
Associates, Wheaton, Illinois.
In addition, consulted regarding particular aspects of the
study were Irving K. Fox, Director, .Westwater Resources
Center, University of British Columbia, Vancouver, British
Columbia; Anthony H. J. Dorcey, Assistant to the Director,
Westwater Resources Center, University of British Columbia,
Vancouver, British Columbia; Wayne Echelberger, Ph.D.,
Professor, School of Public and Environmental Affairs,
Indiana University, South Bend; and Robert H. Maynard, LLM,
Attorney, Smith and Schanke, Dayton, Ohio (formerly legis-
lative assistant to the United States Senator Thomas Eagleton)
Administrative and technical support for the project was pro-
vided by the Division of Research of the School of Public
and Environmental Affairs. Mr. Ralph K. Jones, Associate
Director of the Division, managed this aspect of the project.
Gary P. Simmons, Ed.D., and Gary J. Scrimgeour, Ph.D., pro-
vided editorial support in the development of the final re-
port and made major contributions to the design of the Exe-
cutive Summary. Donald M. Goldenbaum, Ph.D., assisted with
the mail survey- Fred N. Fromm and Cynthia Williams co-
ordinated publication activities related to the project.
- 157 -
-------
Individuals from whom information was requested were general-
ly most cooperative and in particular instances went beyond
the call of duty. We appreciate these efforts on our behalf,
Bernard R. Hyde, Jr., Project Officer for the U. S. Environ-
mental Protection Agency responded promptly to our requests
for information and generally facilitated the completion of
this project. David A. Eberly succeeded Mr. Hyde as project
officer in the later stages of the work and he was very help-
ful in bringing the project to a close.
- 158 -
-------
SECTION X
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A State of the Art and Literature Review, University of
Chicago, Center for Urban Studies.
117. Solomon, Richard A., Additional Alternative Arrange-
ments for River Basins and Other Regions; The Federal-
State Regional Government Corporation, Department of
Commerce Report, 1971.
118. Strong, Ann L., et al, Delaware River Basin Compact;
A Review with Respect to Environmental Quality, Insti-
tute for Environmental Studies, Philadelphia, 1971.
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119. Strong, Ann L. , et. al, The Impact of Pr-emption on
Environmental Regulation, Institute of Environmental
Studies, Philadelphia, October, 1972.
120. Strong, Ann L. , e_t al, The Next Ten Years: Some Recom-
mendations to the Delaware River Basin Commission,
Institute for Environmental Studies, Philadelphia, 1971.
121. Sundquist, James L., Politics and Policy: The
Eisenhower, Kennedy, and Johnson Years, The Brookings
Institution, 1968.
122. Tahoe Regional Planning Agency, Interstate-Federal Com-
pact for the Lake Tahoe Region, South Lake Tahoe,
California, 1969.
123. Urban Systems Research and Engineers, Inc., Metropolitan
Water Management: Case Studies and National Policy Im-
plications , National Water Commission, PB 199-493,
June, 1971.
124. University of California (Davis) Law Review, "Legal
Control of Water Pollution," (entire issue), University
of California, Davis, Law Review 1, 1969.
125. Voight, William Jr., The Susquehanna Compact: Guardian
of the River's Future, 1972.
126. Water Resources Council, "Proposed Principles and Stan-
dards for Planning Water and Related Land Resources,"
Federal Register, December 21, 1971.
127. White, Gilbert F., Strategies of American Water Manage-
ment , University of Michigan Press, Ann Arbor,
Michigan, 1969.
128. Yannacone, Victor J., and B. S. Cohen, Environmental
Rights and Remedies, Rochester, New York: Lawyers
Co-Operative Pub. Co., 1972.
129. Zimmerman, Joseph F. , Metropolitan Governance and the
Twin Cities Model, presented at the National Conference
on Government, Minneapolis, Minnesota, 1972.
130. Zwick, David and March Benstock, Water Wasteland,
Grossman Publishers, New York, 1971.
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SELECTED REFERENCES
WATER QUALITY MANAGEMENT
1. Cleary, Edward J., The ORSANCO Story, Johns Hopkins
Press, 1967.
2. Council of State Governments, Environmental Quality and
State Governments, Lexington, Kentucky, 1970.
3. Kneese, Allen V. and Blair T. Bower, Managing Water
Quality, Economics, Johns Hopkins Press, 1968.
4. "Legal Control of Water Pollution," University of
California, Davis Law Review (1) , 1969".
5. U. S. Environmental Protection Agency, "Proposed EPA
Regulations for User Charge Systems and Industrial Cost
Recovery," Federal Register, 38 No. 98, p. 13523,
May 22, 1973.
PLANNING
6. Bosselman, Fred, David Callies and John Banta, The
Taking Issue -- An Analysis of the Constitutional Limits
of Land Use Control (Council on Environmental Quality,
I9~73) .
7. Council of State Governments, State Planning and Federal
Grants, Public Administration Service, 1969.
8. Delaware River Basin Commission, Interstate Planning for
Regional Water Supply and Pollution Control, Project
#16110 FPP, #3, November, 1971.
9. Dorcey, Anthony H. J., "Effluent Charges, Information
Generation, and Bargaining Behavior", Natural Resources
Journal 13, No. 1, 1973.
10. Environmental Protection Agency, Guidelines: Water
Quality Management Planning, January, 1971.
11. Environmental Protection Agency, Institutional Arrange-
ments for Water Quality Management Planning, Harold Wise
and Associates, Washington, D. C., September, 1971.
12. Hagman, Donald G., Urban Planning and Land Development
Control Law, West Pub. Co., 1971.
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13. Water Resources Council, "Proposed Principles and Stan-
dards for Planning Water and Related Land Resources,"
Federal Register, December, 1971.
ECONOMIC INCENTIVES AND FINANCE
14. Chermak, Lawrence E., The Law of Revenue Bonds , National
Institution of Municipal Law Officers, 1954.
15. Environmental Protection Agency, Alternative Financing
Methods for Clean Water, Office of Water Programs,
September, 1971.
16. Fifer, C. Lee, "Effluent Charge Systems: Analysis and
Legislation," Center for Study of Science, Technology,
and Public Policy, University of Virginia, 1971.
17. Heins, James A., Constitutional Restrictions Against State
Debt, University of Wisconsin Press, 1963.
18. Hickman, Paul T., The Introduction of an Industrial Waste
Surcharge Program, presented to the Missouri Water Pol-
lution Control Association, March 2, 1964.
19. Patterson and Barker, Estimating Costs and Manpower Re-
quirements for Conventional Wastewater Treatment Facili-
ties, Project #17090, October, 19"71.
20. Reed, Kenneth J., "Economic Incentives for Pollution
Abatement: Applying Theory to Practice," 12 Arizona Law
Review 5 11 , 1970 .
ENABLING LEGISLATION
21. Advisory Council on Intergovernmental Relations, State
Legislative Program, M-48, 1969.
22. Delaware River Basin Commission, Interstate Compact for
the Delaware River Basin, 1961.
23. Illinois Environmental Protection Act of 1970, H. B.
3788, Illinois Environmental Protection Agency,
Springfield, 1972.
24. Metro Seattle, The Metro Enabling Act, 1970.
25. Session Laws of Minnesota for 1967, Chapter 896.
26. Tahoe Regional Planning Agency, Interstate-Federal Com-
pact for the Lake Tahoe Region, 1969.
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27. Vermont Agency of Environmental Conservation, Act
#252 - Water Pollution Control Act, 1969.
28. Vermont Agency of Environmental Conservation, Land Use
and Development: Vermont's Environmental Programs -
A Guide, Montpelier, Vermont, 1972.
PERFORMANCE ASSESSMENT
29. Advisory Council on Intergovernmental Relations, Per_-
formance of Urban Functions: Local and Areawide,
Report #M-21, 1963.
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SECTION XI
GLOSSARY
Ability-to-pay Principle - The pricing of goods or services
based on family income or other measures of capability
rather than on the basis of benefits received.
Adequate Authority - The legal capacity to perform functions
required by the legislation.
Ad Valorem Tax - According to value; a tax determined by
assessment of goods or property.
Areawide_ - A region which lends itself both geographically
and economically to coherent and coordinated planning and
management organization.
Assimilative Capacity - The ability of bodies of water to
purify themselves by absorbing waste discharges or diluting
such wastes.
Basin - The streams, rivers and tributaries and the total land
aind surface water area contained in one of the 267 major and
minor basins defined by EPA, or other basin units as agreed
upon by the State and the Regional Administrator.
Benefit - An increase in any one of the values that people
pursue-.
Benefits-received Principle - The pricing of goods or services
on the basis of benefits received by users; those who use the
service pay for the service.
Best Available Technology - A standard of equipment, facili-
ties, techniques and processes required by Section 301 of the
Act to be applied by all point sources, other than publicly
owned treatment works, by July 1, 1983. [Act]
Best Practicable Waste Treatment Technology - The level of
treatment reauired by Section 201 of the Act to be applied by
waste treatment management plans before discharge into receiv-
ing waters. It may include reclaiming and recycling of water,
and confined disposal of pollutants so they will not migrate
to cause pollution of the waters. [Act]
Best Practicable Control Technology - Refers to the standard
required by Section 301 of the Act to be applied by all point
sources, other than publicly owned treatment works, by July 1
1977. Factors in determining the best practicable technology'
include consideration of the total cost of application of
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technology in relation to the effluent reduction benefits to be
achieved from such application, as well as taking into account
the age of equipment and facilities involved, the_process
employed, the engineering aspects of the application of var-
ious types of control techniques, process charges, and non-water
quality environmental impact. [Act]
Best Practicable Treatment - Refers to the average of_the best
performers in an industrial category (SIC classification) .
Construction - Any one or more of the following: Preliminary^
planning to determine the feasibility of treatment works,^engi-
neering, architectural, legal, fiscal, or economic investiga-
tions or studies, surveys, designs, plans, working drawings , ^
specifications, procedures or other necessary actions, erection,
building, acquisition, alteration, remodeling, improvement,
or extension of treatment works, or the inspection or super-
vision of any of the foregoing items. The phrase "initiation
of construction," as used in this subpart [§212(1)], means the
issuance of a notice to proceed, or, if none is required, the
execution of a construction contract.
Cosjt - A decrease in any one of the values that people pursue.
Cost Effectiveness - Comparison of alternative ways to achieve
a given objective in order to identify the method resulting in
the minimum total resources costs over time.
Discharge of Pollutants - The term 'discharge of pollutant1 and
the term "discharge of pollutants' each means (A) any addition
of any pollutant to navigable waters- from any point source; and
(B) any addition of any pollutant to the waters of the contiguous
zone or the ocean from any point source other than a vessel or
other floating craft. [Act, §502(12)]
Ecosystem - A set of clearly recognizable, relatively homogeneous
units; all organisms, their natural environment, and the inter-
actions among them.
Effluent Guidelines Limited Segment - A segment of a basin where
water quality is meeting and will continue to meet applicable
water quality standards or where there is adequate demonstra-
tion that water quality will meet applicable water quality
standards after the application of the effluent limitations
required by the Act. [Proposed EPA Regs., 40 CFR, Part 131]
Effluent Limitation - Any restriction established by a state
or the Administrator on quantities, rates, and concentration
of chemical, physical, biological, and other constituents which
are discharged from point sources into navigable waters.
[Act, §502(11) ]
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Excessive Infiltration/Inflow - The quantities of infiltra-
tion/inflow which can be economically eliminated from a
sewer system by rehabilitation, as determined by a cost-
effectiveness analysis that (for the design life of the
treatment works) compares correcting the infiltration/inflow
conditions with increasing the treatment works capacity to
provide the required waste water treatment for the quantities
of infiltration/inflow. [40 CFR §35.905-4]
External Diseconomy - A detrimental effect on one or more
persons or firms which stems from the activity of other
persons or firms; the activity may yield private benefits or
advantages to the individuals or firms engaged in it but
results in social costs, disadvantages or economic penalties
to others. Also referred to as externalities or spillover
effects.
Full Cost Recovery User Charge - Any mechanism which levies
a price on discharges for the purpose of creating an incen-
tive to affect the quality and/or the quantity of the dis-
charge and, in effect, charge them for utilization of a common
property resource.
Industrial Cost Recovery - Recovery by the grantee from the
industrial users of a treatment works of the grant amount
which is allocable to the treatment of wastes originating
from such users. [40 CFR §35.905-17]
Industrial User - Any nongovernmental user of publicly owned
treatment works identified in the Standard Industrial Classi-
fication Manual, 1972, Office of Management and Budget, as
amended and supplemented, under the following divisions:
(a) Division A - Agriculture, Forestry, and Fishing.
(b) Division B - Mining.
(c) Division D - Manufacturing.
(d) Division E - Transportation, Communications, Electric,
Gas, and Sanitary Services.
(e) Division I - Services.
A user in the Divisions listed may be excluded if it is deter-
mined that it will introduce primarily domestic wastes, or
wastes from sanitary conveniences. [40 CFR §35.905-18]
Infiltration - The water entering a sewer system and service
connections from the ground, through such means as, but not
limited to, defective pipes, pipe joints, connections, or
manhole walls. Infiltration does not include, and is distin-
guished from, inflow. [40 CFR §35.905-5]
Infiltration/Inflow - The total quantity of water from both
infiltration and inflow without distinguishing the source
[40 CFR §35.905-7]
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Inflow - The water discharged into a sewer system and service
connections from such sources as, but not limited to, roof
leaders, cellar, yard, and area drains, foundation drains,
cooling water discharges, drains from springs and swampy areas,
manhole covers, cross connections from storm sewers and com-
bined sewers, catch basins, storm waters, surface run-off,
street wash waters, or drainage. Inflow does not include, and
is distinguished from, infiltration. [40 CFR §35.905-6]
Marginal Cost Pricing - Charging a price for a good or^service
equal to the incremental cost of producing the last unit pro-
duced. Marginal cost pricing has the attribute of leading to
most efficient use of scarce resources. When marginal cost
pricing does not prevail, efficiency can be improved by moving
resources away fron industries where prices are below margin-
al costs and into industries where prices are above marginal
costs .
Municipality - A city, town, borough, county, parish, district
(but excluding a school district), association, or other public
body (including an intermunicipal agency of two or more of the
foregoing entities) created by or pursuant to State law, or an
Indian tribe or an organization, having jurisdiction over dis-
posal or sewage, industrial wastes, or other wastes, or a
designated and approved management agency under Section 208 of
the Act. [40 CFR §35.905-9]
Navigable Waters - The waters of the United States, including
the territorial seas. [Act, §502(7)]. These include all waters
which are navigable in fact as well as those which are capable
of affecting interstate commerce.
No_Discharge Policy - The policy which prohibits discharge of
any pollutant.
Non Point Source - The generalized discharge of waste into a
water body which cannot be located as to specific source; any
pollutant not identifiable as a point source. Examples are
sediment, certain chemicals and drainage.
Non Reimbursable Costs - Those costs in a cost-reimbursement
contract which are unallowable and not paid to the contractor
out of project revenues. Costs which are not necessary for
the construction of a treatment works project are unallowable.
Such costs include, but are not limited to:
(a) Basin or areawide planning not directly related to
the project;
(b) Bonus payments not legally required for completion of
construction in advance of a contractual completion
date;
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(c) Personal injury compensation or damages arising out of
the project, whether determined by adjudication, arbi-
tration, negotiation, or otherwise ;
(d) Fines and penalties resulting from violations of, or
failure to comply with, Federal, State, or local laws;
(e) Costs outside the scope of the approved project;
(f) Interest on bonds or any other form of indebtedness
required to finance the grantee's share of project
costs;
(g) Ordinary operating expenses of local government,
such as salaries and expenses of a mayor, city
council members, or city attorney, except as pro-
vided in §35.940-4;
(h) Site acquisition (for example, sewer rights-of-way,
sewer treatment plant sites, sanitary landfills and
sludge disposal areas), except as otherwise provided
in §35.94Cf-3 (a) . [40 CFR §35.940-2]
Peak Pricing - The technique of pricing goods and services
higher at times of peak demand and lower at times of reduced
demand; to discourage consumption "on peak" and encourage
consumption "off peak," thus to make more efficient use of
plant capacity.
Planning_Process - The annual strategy of the States for
directing resources, establishing priorities, scheduling
actions and reporting programs toward achievement of pro-
gram objectives. The total State planning process is com-
prised of:
(1) The annual State strategy, which sets the State's
major objectives and priorities for preparing basin
plans and its annual program plan.
(2) Individual basin plans, which establish specific
targets for controlling pollution in individual
basins.
(3) The annual program plan (Section 106), which estab-
lishes the results expected and the resources com-
mitted for the State program each year. The annual
plan is developed from the objectives and priorities
of the annual State strategy, and, when available,
from the specific targets developed in basin plans.
(4) Reports, which measure program performance in achiev-
ing programmed results. [40 CFR §130.1]
Point Source - A specific site at which waste water is dis-
charged into a water body and which can be located as to
source; any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel,
conduit, well, discrete fissure, container, rolling stock;
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concentrated animal feeding operation, vessel or other float
ing craft, from which pollutants are or may be discharged.
[Act, §502(14)]
Policy - A procedure for behavior aimed toward achieving cer-
tain goals. A guide for action,
Pollutant - The term 'pollutant' means dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage sludge,
munitions, chemical wastes, biological materials, radioactive
materials, heat, wrecked or discarded equipment, rock, sand,
cellar dirt and industrial, municipal, and agricultural waste
discharged into water. This term does not mean (A) 'sewage
from vessels' within the meaning of Section 312 of this Act;
or (B) water, gas, or other material which is injected into
a well to facilitate production of oil or gas, or water de-
rived in association with oil or gas production and disposed
of in a well, if the well used either to facilitate production
or for disposal purposes is approved by authority of the State
in which the well is located, and if such State determines that
such injection or disposal will not result in the degradation
of ground or surface water resources. [Act, §502(5)]
Pollution - The term 'pollution' means the man-made or man-
induced alteration of the chemical, physical, biological, and
radiological integrity of water. [Act, §502(19)]
Problem Shed - A geographic or hydrologic area in which water
quality is dependent on a river basin, inland lakes, or a metro-
politan water resource area.
Reimbursable Costs - Those allowable costs incurred in the per-
formance of a cost-reimbursement contract which are paid to the
contractor to the extent prescribed in the contract. Such
allowable costs may include:
(a) Costs of salaries, benefits, and expendable material
incurred by the grantee.
(b) Costs under construction contracts.
(c) Professional and consultant services.
(d) Facility planning directly related to the treatment
works.
(e) Sewer system evaluation (§35.927).
(f) Project feasibility and engineering reports
(§35.920-3(b)(3) and (4)).
(g) Relocation and land acquisition costs required pur-
suant to the Uniform Relocation Assistance and Real
Property Acauisition Policies Act of 1970, 42 U.S.C.
4621 et seq., 4651 et seq., and regulations issued
thereunder, Part 4 of this chapter.
(h) Environmental assessment (§ 35.920-3 (b) (9)) , including
costs of public notices and hearings.
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(i) Preparation of construction drawings, specifications,
estimates, and construction contract documents.
(j) Landscaping.
(k) Supervision of construction work.
(1) Removal and relocation or replacement of utilities,
for which the grantee is legally obligated.
(m) Materials acquired, consumed, or expended specifi-
cally for the project.
(n) A reasonable inventory of laboratory chemicals and
supplies necessary to initiate plant operations.
(o) Development and preparation of an operation and
maintenance manual.
(p) Project identification signs (§30.604-4 of this
chapter). [40 CFR §35.940-1]
Residual - A non-product output whose value is less than the
resource cost of utilizing it. The value is time dependent,
i.e., it changes with changes in technology and the relative
prices of alternative factor inputs. Should a definition
such as this be applied to the term residuals as found in
§208(b) (2) (J) , the alternative available to a creative admin-
istrator under the provisions of this Act would be increased.
Separable Costs - Costs which can be isolated and exclusively
allocatedto a single purpose.
Service Life - The period of time during which a component of
a~waste treatment management system will be capable of per-
forming a function. [See also 40 CFR §35.905-16]
Significant Industrial User - A user that will contribute
greater than 10 percent of the design flow or design pol-
lutant loading of the treatment facility.
Standard Metropolitan Statistical Area - An integrated econom-
ic and social unit with a large population nucleus . There are
over 245 SMSA's in the United States. Each contains at least
one central city with 50,000 inhabitants or more, or two
adjoining cities constituting, for economic and social pur-
poses , a single community with combined population of at least
50,000 the smaller of which must have a population of at least
15,000. Each SMSA includes the county in which the central
city is located and adjacent counties that are metropolitan
in character and economically and socially integrated with
county of the central city.
Toxic Pollutant - Those pollutants, or combinations of pollu-
tants, including disease-causing agents, which after discharge
and upon exposure, ingestion, inhalation or assimilation into
any organism, either directly from the environment or indi-
rectly by ingestion through food chains, will, on the basis
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of information available to the Administrator, cause death,
disease, behavioral abnormalities, cancer, genetic mutations,
physiological malfunctions (including malfunctions in repro-
duction) or physical deformations, in such organisms or their
offspring. [Act, §502(13)]
Treatment_Works - Any devices and systems used in the storage,
treatment, recycling and reclamation of municipal sewage or
industrial wastes of a liquid nature to implement Section
201 of the Act, or necessary to recycle or reuse water at the
most economical cost over the estimated life of the works,
including intercepting sewers, outfall sewers, sewage collec-
tion systems, pumping, power and other equipment and their
appurtenances; extensions, improvements, remodeling, additions
and alterations thereof; elements essential to provide a
reliable recycled supply such as standby treatment units and
clear well facilities; and any works, including site acquisi-
tion of the land that will be an integral part of the treatment
process or is used for ultimate disposal of residues resulting
from such treatment; or any other method or system for preven-
ting, abating, reducing, storing, treating, separating, or
disposing of municipal waste, including storm water run-off,
or industrial waste, including waste in combined storm water
and sanitary sewer systems.
[Act, §212(2); also 40 CFR §35.905-15]
Useful Life - The period of time during which a component of a
waste treatment management system will be required to perform
a function which is necessary to the system's operation.
User Ch_arge - A general term that includes all levies associated
with water quality management that are born by users of the ser-
vice; a charge levied on users of treatment works for the cost
of operation and maintenance of such works. User charges do
not include construction costs. [See 40 CFR §35.905-21]
Water_Quality_Limited_Segment - Any basin segment where it is
known that water quality does not meet applicable water quality
standards, and is not expected to meet water quality standards
even after the application of the effluent limitations required
by the Act. [Proposed EPA Regs., 40 CFR, Part 131]
Water Quality Management - Administrative, planning, legal, and
operating activities related to a production function of public
goods in which water resources are the inputs to the system and
goods and services are the outputs. Waste treatment management
is one aspect of water quality management.
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