Earth Day 2010: A simple clean water recipe for EPA

As most of the landmark environmental legislation passed by Congress in the 1970s hits middle age, it is natural to assess the success and failure of these pivotal laws.   There has been no lack of these appraisals in recent weeks, on the eve of the fortieth anniversary of Earth Day.   One, by the first EPA Administrator, William Ruckelshaus, in the online edition of the Wall Street Journal, caught my eye. 

I spent a day last week in Washington, D.C., with about one hundred others, including former Administrator Ruckelshaus, talking about how to increase the nation’s progress in meeting its clean water goals.  The meeting, “Coming Together for Clean Water,” was the brainchild of the current EPA Administrator, Lisa Jackson, who kicked the day off by challenging the group to contribute their ideas and help EPA refocus its efforts.   Bill Ruckelshaus was there, as was former EPA Administrator Bill Reilly, along with representatives of environmental groups, business, state and local government, and agricultural interests.  

In his opinion piece, Ruckelshaus talked about re-thinking how the environment, including water, is regulated.   With respect to water, Ruckelshaus observes that the structures that allowed the nation to successfully reduce pollution from large, discrete sources like sewage treatment facilities may not work as well with respect to the nation’s leading water pollution challenge today, polluted runoff.  It is fair and healthy to ask these questions.   The basic architecture of environmental statutes matters.  Like buildings, some laws age better than others.   The Ruckelshaus piece is thought-provoking.

But I don’t think the problem the country is having with polluted runoff is fundamentally because of the Clean Water Act’s deficiencies.  (Although the Act clearly has some.)   And it is not because a runoff discharge from a storm drain is composed of a multitude of diffuse sources of pollution.  This also characterizes other waste streams that the Act has dealt with effectively, like sewage treatment.   Instead, after working on runoff pollution permit, policy, and litigation for more than ten years, I think the challenges have a lot to do with the entities being regulated:  city government and land development interests.   Many cities view the Act’s reach as intrusive on their local prerogatives, which they guard fiercely and feel deeply.  Cities are used to being the regulating party, the deciders, so to speak—not the other way around.   Their reluctance to play a different role is understandable but also something its long-past time to move beyond.   For their part, developers are often closely related to and can be a powerful influence on local politics.   Many development interests have successfully framed regulation of development practices as intruding on private property and local land use choices, instead of merely addressing the pollution generated by those decisions, which is actually what is happening.   It is not at all clear that the solution to this resistance can be found in acceding to these characterizations or what is often a generic reluctance to be subject to clean water requirements.   

Likewise, we can do better than accept the implicit contention that this leading source of pollution to the nation’s waters—a source which science tells us sickens people at beaches across the country—is too difficult a problem to solve.  This view is rooted in the judgment—misjudgment in my view—that what made the Act successful in addressing treatment plants and factories twenty five years does not apply now.   We shouldn’t fall into the trap of romanticizing the country’s experience with the control of pollution from factories and sewage treatment plants.   Law schools can and do teach entire courses based on the case law generated by litigation brought to avoid, and enforce, the very rules that on Earth Day anniversaries are described, wistfully, as successful and uncontroversial.   They are successful.  They were not—and still today are not—always accepted by pollution dischargers without a fight (or fights).   Indeed, during the 1970s, statutory limits were tested.  Precedent was set.  In the case of polluted runoff, we are very much in the middle of that process, which largely ended in the 1980s for the so-called traditional sources of water pollution.

And so I think that the most effective single action EPA can take today to clean up the nation’s water is not to endlessly debate the Clean Water Act’s basic approaches (although that’s certainly not unhealthy entirely).   It is rather to seize the moment of the fortieth anniversary of Earth Day to implement the law; clarify what needs to be clarified through updates to implementing regulations; and revisit guidance documents which during the 2000s often undercut progress.   You might think that, well, isn’t that what EPA does already?   The truth is:  not always when it comes to the nation’s principal water quality law.  Many regulations that govern the day-to-day implementation of the Act’s storm water rules have remained essentially unchanged for a decade or more.   In this connection, the role of clear guidance is a powerful lever that is easy to overlook.  For example, through guidance memoranda, EPA can in the coming weeks improve the clarity of and minimum deliverables that polluted runoff permits must contain; specify more precisely how Total Maximum Daily Loads must be implemented to assure that the limits they set are met; and set guidelines for the use of “green infrastructure” solutions like Low Impact Development.   

EPA can lead the way in another critical area, which is an important complement to stricter focus on implementing the law, and enforcing it where necessary.   I will post about this important action item tomorrow…

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