Clean Water Policies: Regulatory Innovation for the Next 50 Years
Providing an Elegant Framework to Improve Water Quality and Ecosystems
U.S. water quality has greatly improved over the last 50 years since the inception of the Clean Water Act, a U.S. federal law funded through massive federal, state and local investments.
The CWA and federal and state regulations have evolved since 1972 to provide structures for regulating point sources. The clean water community has greatly reduced conventional and toxic pollutants, which caused major water quality impacts in the years preceding the CWA.
Nonpoint sources of pollution are often the most significant water quality impacts in many watersheds with lack of regulatory controls; rather, these sources are primarily funded through incentive-based, voluntary programs. In addition, degradation of ecological conditions, particularly aquatic life habitat, has been reduced through Section 404 regulations, while no regulatory structures focus on improving existing habitat conditions.
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The CWA provides an elegant framework to improve water quality and ecosystems despite the challenges with regulating all sources of pollution and lack of focus on aquatic habitat. Congress structured the CWA with a two-pronged approach to restore U.S. waters.
First, municipal and industrial discharges are controlled through minimum treatment technology requirements, which provided the authority to make enormous strides in water quality to reduce the gross pollution that drove the political will for the CWA. However, the technology-based approach focused on achievable and affordable treatment for a limited number of pollutants based on the type of discharge. For municipal wastewater discharges, control of biochemical oxygen demand and total suspended solids are the sole treatment targets to reduce oxygen depletion in receiving waters. Notably, formal technology-based nutrient reduction requirements were not established for point sources under the CWA. However, several states have adopted or are in the process of establishing nutrient reduction requirements for both municipal and industrial discharges.
Second, the CWA includes a set of water quality provisions that have been the primary regulatory drivers over the last 30 years. The water quality framework is structured with a focus on restoring and protecting beneficial uses to achieve the CWA goal of making all waters “fishable and swimmable.” Each of these beneficial uses, such as aquatic life protection and recreational uses, are protected by a set of numeric and narrative criteria adopted by states and tribes with delegated authority by the U.S. Environmental Protection Agency. If these beneficial uses are not attained, total maximum daily load, also known as TMDL, studies are required to establish the maximum pollution budget that is allowable to attain the beneficial uses. TMDLs set wasteload allocations for point sources and load allocations for nonpoint sources, the latter of which are largely voluntary and incentive-based reduction strategies. Depending on the structure created through TMDL development, many TMDLs are solely focused on an individual or a limited set of pollutants that create a “zero sum game” that limits creative solutions to achieve beneficial use restoration, particularly the creation of incentives to control nonpoint sources or restore limited aquatic habitats. Water quality improvement has been impeded in many circumstances; however, we can now apply lessons learned to shift the regulatory paradigm to make greater progress to meet the original intent of the CWA.
Today’s Communities and Environment Face Unprecedented Challenges
Our communities and environment are facing unprecedented challenges that require regulatory policy innovation to overcome today’s water quality challenges in a sustainable, affordable and equitable manner. Today’s challenges span from our communities and water sector utilities to our local and global environment.
The water quality of our waterways and estuaries is becoming progressively sensitive to nutrient pollution with the growing occurrence of harmful algal blooms in many major waterbodies. Harmful algal blooms have increasingly impacted drinking water supplies and caused aquatic life mortality. In addition, constituents of emerging concern, such as per- and polyfluoroalkyl substances, commonly known as PFAS, 1-4 dioxane, 6PPD and microplastics, threaten drinking water supplies, aquatic life, fish consumption and sustainable use of biosolids. These water quality issues exacerbate ecosystem impacts that many times are already compromised by poor habitats.
Climate change is impacting our communities and ecosystem at an alarming rate. Water supply scarcity is a forefront threat to many regions and community, resulting from our hotter, drier and more intense weather patterns. Rising water temperatures also fuel extremes within ecosystems, producing harmful algal blooms, red tides and suppressing dissolved oxygen. While climate change is impacting our nation’s waters, the water sector must also take steps to reduce direct and indirect carbon emissions to do our part to fight climate change.
Today’s utilities are also balancing internal needs and community priorities while striving to meet CWA obligations. The CWA drove enormous investments into municipal infrastructure through the early 1990s, but reinvestment into the infrastructure that had been largely funded through federal grants is now primarily funded through financing. Hopefully, Congress will continue the recent investments into municipal infrastructure, but these funds will likely be paltry compared to the asset renewal needs that most utilities face. These asset management needs, coupled with expansive growth in many regions, create significant affordability challenges, particularly for low-income households.
Many municipal utilities are also facing significant investments to overcome previous inequitable infrastructure decisions that created disruption, lower levels of service and greater environmental impacts in low-income and minority service areas. These community and utility needs demand more innovative solutions to meet community priorities and regulatory requirements in a sustainable, affordable and equitable path forward.
A One Water and One Environment approach is the future if we are to overcome these challenges and take advantage of the opportunities in front of today’s utilities.
