Establishing requirements to control nonpoint source pollution under the U.S. Clean Water Act: The role of public participation

September 9th, 2014

Dr. Melissa McCoy, Association of Clean Water Administrators (ACWA), United States

The Clean Water Act (CWA) is a federal law of the United States that governs the protection of surface waters from pollution. Enacted in 1972, the CWA was established to “restore and maintain the chemical, physical, and biological integrity of [U.S.] waters.” At the time of its enactment, two key goals of the CWA were to achieve fishable/swimmable ambient water quality throughout the U.S. by 1983 and to eliminate discharges of pollutants into U.S. waters by 1985.

More than forty years later, these goals still have not been met. Nevertheless, the CWA has led to significant improvements in U.S. water quality, and other nations (including, recently, Iraq) have looked to the CWA while drafting environmental legislation.

The CWA focuses primarily on point source pollution – that is, discharges of pollution from a pipe or other discrete conveyance into a water body. Over the past 40 years, this type of pollution has been controlled to a great extent through the issuance of National Pollutant Discharge Elimination System (NPDES) permits by the U.S. Environmental Protection Agency (EPA) or authorised state agencies.

NPDES permits limit the amount of pollutants that point sources can discharge. Although the goal of zero pollutant discharges has not been achieved, the NPDES permitting system has substantially reduced the amount of pollution discharged from point sources.

Today, contaminants from nonpoint sources – that is, diffuse sources of pollution such as agricultural runoff and urban stormwater – are by far the greatest contributors to surface water pollution in the U.S. The most prevalent pollutants in agricultural and urban runoff are the nutrients phosphorus and nitrogen, from fertiliser spread on fields and lawns and manure from concentrated animal feeding operations. Excessive nutrients in water cause algae overgrowth, and bacterial decomposition of dead algae depletes dissolved oxygen levels and leads to large-scale fish kills.

Some types of algae are toxic to humans and other animals, the result of which was recently seen in and around Toledo, Ohio, where the drinking water supply for approximately 500,000 people became unusable due to a toxic algal bloom in Lake Erie. Other pollutants that reach our waters from nonpoint sources include: sediment, biological pathogens, petroleum products, heavy metals, carcinogenic chemicals contained in pesticides and coal tar-based sealcoat, and ecologically-harmful salts from roadways. Many drinking water treatment facilities lack the capability to remove all these pollutants.

As of August 2014, EPA’s assessment of water quality data from states reported that 67 percent of assessed lakes, 51 percent of assessed rivers and streams, and 72 percent of assessed bays and estuaries are not meeting water quality standards, largely due to nonpoint source pollution. These waterways are therefore unsuitable for aquatic life and/or human uses. However, the CWA does not give EPA the express authority to control nonpoint sources of water pollution and does not require states to do so (although states are free to promulgate their own laws and regulations to address nonpoint source pollution).

The CWA does require that each state calculate a Total Maximum Daily Load (TMDL) for each pollutant that causes any water body to be listed under the Act as impaired for one or more of its uses, such as fishing, swimming, or supplying drinking water. A TMDL is essentially a pollution budget, an estimation of the maximum amount of pollutant, allocated among point and nonpoint sources, that a water body can receive and still meet water quality standards.

As part of the process for developing TMDLs, states may propose actions to control nonpoint source pollution in order to achieve pollutant load reductions, such as restoration of riparian buffers, use of conservation practices such as cover crops to reduce soil erosion and nutrient loss, and installation of green infrastructure (such as rain gardens and permeable pavement), but EPA has no authority under the CWA to enforce the implementation of these proposed actions.

The U.S. Government Accountability Office (GAO) recently released a report recommending that Congress revise the CWA so that EPA can better address nonpoint source pollution through regulation. In this report, GAO assessed a representative sample of 191 TMDLs (out of a universe of approximately 50,000) and found that most of the water bodies analyzed have not fully attained water quality standards, largely due to lack of nonpoint source pollution reduction. This failure stems from TMDL implementation plans that lack key components such as identification of appropriate stressors, landowner participation, and adequate funding. Overall, both states and EPA have little information about the status of implementation of TMDLs.

If you think that pollution from nonpoint sources should be more effectively regulated, now is the time to make a difference by voicing your views and related knowledge. If you live in the U.S., the website of your state or local environmental protection department should provide information on current regulations and opportunities to submit public comments or attend public hearings related to water quality regulations or water resource management plans.

There are also opportunities to submit written comments on proposed EPA rule makings. Academic researchers and coalitions of multiple parties or members of the public can be effective advocates for change, especially with supporting data to backup arguments posed. EPA’s website provides information about how to reduce nonpoint source pollution, and details existing state and local water quality enforcement mechanisms that can serve as models for public petitions to state or local authorities in locations without such regulatory mechanisms.

If you live outside of the U.S., consider whether nonpoint source pollution is a threat to water quality in your region and what could be done to reduce this threat. The U.S. based resources can be useful to you as well, and you can learn from the gaps in the CWA. Generally speaking, national environmental protection departments like EPA work under limited resources and extraordinary political pressure. Likewise, regulation of nonpoint sources by sub-sovereign regulatory bodies (such as at the state or municipal level) can be seen as putting unfair burdens on industries and agriculture, and inhibiting economic growth.

At the end of the day, it is a matter of balancing priorities and allocating resources accordingly. Whatever you think, make your voice heard by participating in opportunities to provide public comment on clean water laws and regulations. Political fundraisers can be powerful, but citizens have the last word in the public participation process.

References:

U.S. Environmental Protection Agency. “National Summary of State Information” in Water Quality Assessment and TMDL Information, accessed August 20, 2014, http://ofmpub.epa.gov/waters10/attains_nation_cy.control. Dungjen, T., Patch, D. (2014, Aug. 2). State of Emergency Declared in Toledo Area. The Blade of Toledo. http://www.toledoblade.com/local/2014/08/02/City-of-Toledo-issues-do-no-drink-water-advisery.html. Supra note 1. U.S. Government Accountability Office. (2013, Dec. 5). Changes Needed if Key EPA Program Is to Help Fulfill the Nation’s Water Quality Goals. http://www.gao.gov/products/GAO-14-80. U.S. Environmental Protection Agency. Polluted Runoff: Nonpoint Source Pollution. http://water.epa.gov/polwaste/nps/ U.S. Environmental Protection Agency. Nonpoint Source: Operational Requirements. http://water.epa.gov/polwaste/nps/nonpoin3.cfm

Melissa McCoy works at the interface of science and policy in the area of water resource protection. She holds a Ph.D. in molecular microbiology and during her doctoral and post-doctoral studies, she researched the interface between bacterial pathogens and the host immune response. She then received a Science & Technology Policy Fellowship from the American Association for the Advancement of Science (AAAS), through which she worked in the Office of Water at U.S. EPA, and is now a program manager for the Association of Clean Water Administrators (ACWA). This article represents her views and not those of ACWA.

The views expressed in this article belong to the individual authors and do not represent the views of the Global Water Forum, the UNESCO Chair in Water Economics and Transboundary Water Governance, UNESCO, the Australian National University, or any of the institutions to which the authors are associated. Please see the Global Water Forum terms and conditions here.