With drought conditions threatening half the country and the clamor for stricter limits on more and more pollutants, water law issues will take center stage in 2012. Courts, EPA, state agencies, environmental groups and individual citizens will face new and difficult questions involving stormwater, nutrients, wetlands and water rights, questions that the election year will make only more political and divisive.
In the second of its series addressing this year’s major environmental issues, the McGuireWoods environmental team identifies the following water issues to follow in 2012:
- Proposed National Rulemaking to Strengthen the Stormwater Program. In 2009, EPA initiated a national rulemaking to establish an enhanced program to reduce stormwater discharges from newly developed and redeveloped sites and to make other regulatory improvements to strengthen its stormwater program. Although it failed to propose a draft rule for public comment in November 2011, as stated in the announcement, EPA has indicated that it intends to move forward with a proposal in 2012.
- Integrated Municipal Stormwater and Wastewater Plan. After decades of imposing overlapping and often competing municipal wastewater and stormwater requirements, EPA may have finally recognized that the water quality goals that it shares with municipalities can be achieved more quickly and cost effectively by allowing municipalities to integrate their wastewater and stormwater plans. EPA’s Oct. 27, 2011, memorandum entitled Achieving Water Quality Through Integrated Municipal Stormwater and Wastewater Plans pledges the agency’s support for “more sustainable and comprehensive solutions, such as green infrastructure, that improve water quality as well as support other quality of life attributes that enhance the vitality of communities.” On Jan. 13, 2012, EPA proposed a draft framework setting forth the principles and elements of the plan, and announced that it intends to finalize the framework after conducting stakeholder outreach during January and February of 2012. A number of municipalities around the country (some of which are now operating under federal consent decrees) intend to test EPA’s commitment to an integrated approach by requesting modifications to their existing Clean Water Act obligations based upon the principles and guidance outlined in the Oct. 27, 2011, memorandum and the 2012 framework.
Total Maximum Daily Loads (TMDLs)
- Numeric Water Quality Criteria for Nutrients. Historically, state water quality standards for nutrients have been expressed as narrative rather than numeric criteria. EPA will continue to push the states to replace their narrative nutrient criteria with numeric nutrient criteria in order to advance EPA’s goal of including the widespread use of strict effluent limits for nutrients in state-issued NPDES permits. The focus of this effort in 2012 will be in Florida where the state is completing the adoption of its first-ever numeric nutrient criteria, to avoid having EPA impose federal nutrient criteria on the state.
- Nutrient Trading and Banking. The significant reductions in nutrient loads from all sources required by the multistate Chesapeake Bay TMDL, together with threats by EPA to impose sanctions on the federally regulated source sectors (wastewater treatment plants, stormwater and concentrated animal-feeding operations) if the load reductions are not achieved, have prompted states in the Chesapeake Bay watershed to pursue new and innovative ways to reduce the cost of achieving the reductions. Among the innovations now under development is enhanced nutrient trading, which seeks to build upon Virginia’s successful point source-to-point source trading program by authorizing trading among all source sectors as well as credit banking. If adopted in 2012 as expected, Virginia’s enhanced nutrient trading program may well serve as a model for other states in the Chesapeake Bay watershed and nationally.
- More Deference to the States? During 2011, EPA showed increasing flexibility in its views toward the states’ approach to TMDLs. A recent court ruling set a minimal standard for EPA to meet when reviewing state determinations of water body impairment, a case notable because EPA did not seek to impose a more stringent standard than that applied by the state. EPA is also expected to soon provide a draft outline of its vision and goals for the TMDL program for the next decade. After discussions with stakeholders in the spring, EPA hopes to finalize its vision and goals in June 2012.
- Nutrients Implementation Workgroup. In late October 2011, EPA established the Nutrients Implementation Workgroup, which includes federal officials, regional water administrators and state regulators. The group is exploring flexible approaches to meeting nutrient reductions and is likely to publish guidelines concerning such approaches in 2012.
Wetlands and Jurisdictional Waters
- Judicial Review of Administrative Compliance Orders (ACO). The U.S. Supreme Court is expected to issue a decision this year in a Clean Water Act case challenging EPA’s longstanding practice of issuing ACOs without affording those receiving such orders the opportunity to seek pre-enforcement judicial review. The federal district and circuit courts have consistently dismissed such challenges in the past, holding that an ACO is not final agency action under the Administrative Procedure Act until EPA begins a judicial enforcement action alleging noncompliance with the ACO. The Court heard oral arguments on Jan. 9, 2012, in Sackett v. EPA involving Idaho landowners who sought to challenge an ACO issued by EPA for alleged illegal filling of wetlands by the Sacketts on their property. Many legal observers believe that the Court is likely to rule against EPA and allow those receiving ACOs to seek pre-enforcement judicial review, thus undermining a powerful tool that EPA has long used to force compliance with the Clean Water Act.
- Guidance/Rulemaking on Definition of Waters of the United States. In April 2011, the EPA and the U.S. Army Corps of Engineers issued a draft guidance designed to clarify the definition of “waters of the United States” under the Clean Water Act. The draft guidance received approximately 230,000 comments, many of which requested that the Corps and EPA use the rulemaking process rather than a potentially unenforceable guidance process to resolve such an important issue. In response to the comments, EPA and the Corps have expressed their intent to go through the rulemaking process and have stated that a draft rule could be released sometime in 2012. In the meantime, the draft guidance has not been finalized and is unlikely to be finalized as the rulemaking process goes forward.
Other Water Quality Programs
- Permits for Pesticide Applications. At the end of last year, EPA issued a new general NPDES permit for applicants who spray pesticides over water bodies. Attempts to stop the permit requirement in Congress failed. Ongoing discussions between EPA and the Fish and Wildlife Service over the impact of pesticide applications on endangered species could result in the permit becoming more stringent this year. If that occurs, congressional efforts to limit or overturn the permit requirement will no doubt be revived.
- Effluent Limitation Guidelines. EPA will continue to implement the most recent revisions to its effluent limitation guidelines over the course of the next year. This will include proposed stricter limits for discharges of metals and coal ash waste from power plants.
- Water Fights to Increase. With much of the country suffering from droughts ranging from moderate to extreme, conflicts over the rights to use dwindling supplies of water will continue to increase. These will include battles between states, such as New Mexico’s threats to take actions against Texas for depleting a groundwater aquifer that extends across both states’ boundaries, or fights between states and their own citizens, such as Texas’ decision to cut off water flows to rice farmers. Conflicts will also arise over transfers of water to drought-stricken areas, such as the opposition to an interstate pipeline proposed to take water from Wyoming to Colorado.
- EPA Study on the “Value” of Water. Responding to the economic losses caused by the BP Horizon oil spill, EPA in 2012 will be working on a major study on the economic importance of clean water. The purpose of the study is to “evaluate the value of water to the U.S. economy and provide a resource for future decision making.” The report will be based on 10 expert papers on such topics as water use by economic sector, how the value of water is affected by infrastructure investment and how development of water markets could affect the economy. Critics are concerned that the study is in reality an attempt by EPA to justify the need for additional water regulations, including a proposed regulation of isolated wetlands and other marginal waters that is already subject to much criticism.
- Corporate Awareness of Water Risk. More and more companies in 2012 will evaluate how water risk could affect their business operations. Similar to the evaluation of the business impacts of climate change, the attention to water risks will include a focus on recycling and reuse opportunities, identification of water-related losses and identification of near- and long-term water risks and how to reduce the exposure to such risks.
For our first installment in this series, see Environment 2012: Contamination and Waste Management-Related Issues.