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Draft Clean Water Strategy is released

2010 August 20

The Coming Together for Clean Water event and online discussion gave us a lot to think about regarding how EPA can most effectively pursue our nation’s clean water goals. After a lot of consideration, we’ve developed this draft strategy to outline how we hope to accomplish those goals.

We’re pleased to share this draft with you and welcome your comments. If you’re commenting about something specific, please include the section title, page and paragraph number to which you’re referring. Also, please indicate whether you’re commenting as a private citizen or on behalf of an organization (and if it’s the latter, please include the name of the organization as well).

The draft strategy will be available for comment until September 17. After that, we’ll start developing the final strategy, which we hope to have ready by late 2010.

Coming Together for Clean Water Disc Draft Aug 2010 FINAL

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  1. October 15, 2010

    The National Association of State Departments of Agriculture (NASDA) respectfully submits the following comments on the Environmental Protection Agency’s draft Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water.

    NASDA represents the commissioners, secretaries, and directors of the state departments of agriculture in all fifty states and four U.S. territories. State departments of agriculture are responsible for a wide range of programs including food safety, combating the spread of disease, and fostering the economic vitality of our rural communities. Conservation and environmental protection, particularly in regards to pesticide regulation, are also among our chief responsibilities.

    NASDA is concerned that many of the strategies outlined in this draft could significantly impact the ability of American agricultural producers to continue to produce safe, abundant and affordable sources of food, fuel and fiber here at home. We are concerned with the agency’s stated goal of “increasing the regulatory universe,” particularly in regards to agriculture. NASDA maintains that the best way to address water quality concerns related to agricultural production—especially nonpoint sources—should be by implementing reasonable, voluntary, and incentive-based solutions utilizing education and technical assistance as well as financial assistance. All of these efforts must be grounded in solid, scientific, research-based solutions.

    The Draft Strategy rightfully discusses the roles state agencies play as partners with EPA on these important issues. The relationships between EPA and state regulatory agencies (including state clean water agencies and state departments of agriculture) are vitally important to the successful implementation of a number of environmental protection programs. After all, state regulatory agencies are not simply important stakeholders, but are instead partners with EPA in the enforcement of a number of environmental programs. To that end, just as EPA consults with other federal agencies on various regulatory actions, we encourage EPA to formalize a consultation process with the relevant state agencies to more fully involve those agencies in EPA’s regulatory undertakings. We commend the agency for involving state officials early on in the development of the NPDES Pesticides General Permit (PGP). While we have significant concerns with that permit, the process EPA implemented was very valuable for both state officials and EPA as well.

    States can—and should—be used more as resources for the agency. Often, as in the case with activities in the Chesapeake Bay region and the development of numeric nutrient criteria in Florida, states have a wealth of data, experience and expertise on these issues. All too often, EPA marginalizes the roles of states in these situations. If states agencies were consulted in a more systematic way on these and other issues, these state agencies could provide useful insight and help EPA avoid problems down the road.

    Given the reality of the growing world demand for food and the serious challenges it creates, the United States as a major exporter will have to take a leadership role in helping the world meet its food security goals. While such challenges in no way means that agriculture in the United States cannot or will not meet its environmental responsibilities, it does mean that policy making must proceed carefully, with sound analysis, good science, and by taking fully into account these food security and other critically important policy objectives and needs.

    In the case of the possible changes in Clean Water Act policy that EPA is contemplating, concerns over food security impacts are not speculative. Just one proposed EPA regulation, the numeric nutrient criteria for Florida lakes and flowing waters, has been estimated to cost agriculture in Florida between $855 and $3 billion dollars in capital costs and between $902 million and $1.6 billion in annual costs. These costs are being imposed to achieve benefits that EPA estimates are only between $2.3 and $2.6 million a year! These cost increases will either be passed on to consumers of Florida’s fresh and processed fruits, vegetables and animal proteins, both nationwide and locally, or come straight from the pockets of farmers who do not have the luxury of passing on the costs to consumers, making foreign imports more competitive. This will directly, and adversely, affect efforts like the Florida school lunch system’s attempt to increase student consumption of fresh and local produce.

    Another example, the Chesapeake Bay TMDL, has the potential to impose even greater costs on agriculture in the 64,000 square mile Chesapeake Bay watershed, even though EPA has failed to quantify any costs and benefits associated with this proposed action. The Chesapeake Bay TMDL could even drive significant portions of the region’s agriculture out of the watershed altogether, adversely impacting food production. If EPA moves forward with actions that curb agricultural production in the Mississippi River watershed, the adverse impacts will be even more dramatic.

    We also request EPA to understand that modern agricultural practices have already significantly reduced agriculture’s environmental footprint. Agriculture has improved our overall environmental efficiencies and the use of crop inputs is declining. No-till farming has lessened soil erosion and stored carbon in the soil. Farmers produce more milk today from far fewer cows. Farmers are also producing more meat on less feed from the same number or fewer animals. Nitrogen use efficiencies in the Mississippi watershed has consistently improved. In state after state, our track record is one everyone should be proud of. Unfortunately, the strategy document does not acknowledge this progress. In fact, by attacking efficient practices, such as increasing crop yields by using nutrients or increasing animal production, EPA risks expanding the area of land needed to produce food, fiber and fuel, thereby increasing the impact of agriculture on the environment.

    We hope that EPA will, in fact, use the Strategy as a strategic planning exercise and reconsider some of the actions it is taking by examining the broader consequences. As EPA does so, we offer the following suggestions:

    First, quantify the economic and social costs and benefits of EPA’s proposed actions. Actions to protect water could have unintended consequences such as reducing food production or increasing energy use. Policy makers and the public should be able to weigh these impacts against the benefits of a proposed action.

    Second, ensure that EPA’s actions are based on the best available scientific and technical information. Applying this principle means that development of scientific reports to determine necessary nutrient loads to restore and maintain water quality in key areas should be a high priority and is an activity that should precede any work relating to nutrients, including work on nutrient water quality standards and nutrient TMDLs. This also applies to the development and implementation of guidance on translating narrative water quality standards for nutrients into numeric limits for point sources. In fact, with respect to nutrients, we recommend that EPA acknowledge the gaps in its scientific understanding of how nutrients affect water bodies and develop a plan to carry out scientific studies to fill those gaps. EPA should then revise its 1998 “National Strategy for the Development of Regional Nutrient Criteria” based on the results of those scientific studies. EPA’s planned actions for nutrients should await the development of this sound scientific and strategic foundation.

    Third, focus your attention and resources to address the most significant water quality problems and the most cost-effective solutions. EPA, states, local governments, and landowners all have limited resources. In taking action to improve water quality, EPA should prioritize the most significant problems first and should focus on cost-effective solutions. Some of EPA’s planned actions may consume significant resources for little environmental gain. For example, EPA is planning to strengthen anti-degradation reviews. However, performing an anti-degradation review of every small source covered under general permit would consume significant resources for little benefit at a time when state agencies are reducing staff. Similarly, EPA is planning to amend EPA’s water quality standards regulations to presume that all waters are fishable and swimmable, flying in the face of 35 years of experience with the Clean Water Act demonstrating that the opposite is true. Inappropriate designated uses can result in a misallocation of resources. Instead of presuming that all waters are fishable and swimmable, EPA should fulfill its previous commitments to develop clear guidelines on how to develop use attainability analyses and should encourage states to analyze the attainability of state water quality standards before requiring significant water quality investments, such as those required under a TMDL.

    Fourth, recognize that landowners are partners who contribute to water quality protection. While the Draft Strategy rightfully recognizes the important role state regulatory agencies play in regard to water quality issues, EPA does not adequately recognize the role the agricultural community must—and in many instances does—play in this regard. As the owners and operators of land where crops and animals are grown, the agricultural community takes action every day, on the ground, to protect water quality while providing safe and affordable food, fiber and fuel. As EPA proceeds with any of the above listed activities, we hope that EPA will reach out to the agriculture community and learn what actions are already being taken, before imposing new mandates and new regulations.

    For example, one of the flaws in the newly released draft Chesapeake Bay TMDL is the fact that the modeling used to develop the TMDL does not take into account agricultural best management practices (BMPs) unless those BMPs were being tracked as a part of a cost-sharing program. By failing to understand what activities are being undertaken by the agriculture community, EPA has developed a draft TMDL that has no basis in reality.

    EPA should avoid making the same mistake when taking action on any of these items, particularly: working with states to carry out more strategic and effective implementation of TMDL pollution reduction plans and watershed-based nonpoint source plans; the development and implementation of reasonable assurance guidelines regarding nonpoint source reductions identified in TMDLs; the use of offsets and trading to achieve water quality standards; new regulations regarding CAFOs, including streamlining the authority to designate AFOs as CAFOs; and focusing on nutrient pollution, particularly in the Mississippi River Basin. If EPA chooses to continue to pursue these actions, EPA should work closely with the agricultural community.

    Fifth, do not assume that more regulation is always the answer to water quality problems. EPA’s Draft Strategy is essentially a list of activities to increase regulation. However, the Draft Strategy does not indicate that EPA plans to conduct any program evaluations to evaluate the success of its existing regulations and/or determine if new regulations are needed. In addition, the better regulations are those which seek voluntary compliance—those where the regulated can agree to the value and benefit of the regulation. Too often, ill-informed regulations seeking the correction of a problem merely result in punishment rather than voluntary correction and compliance. We can ill afford the expense for enforcement of ill-conceived rules. The Strategy also does not acknowledge the success of cooperative programs, particularly agricultural conservation programs. In developing a final strategy, EPA should first evaluate the success or failure of existing programs.

    Sincerely,

    Stephen Haterius
    Executive Director
    National Association of State Departments of Agriculture

  2. September 20, 2010

    While EPA looks to build upon the CWA of 1972, it should also take a moment to reflect on what has been achieved since that time and how the progress to date was accomplished. At that time of its creation, noteworthy events such as the Cuyahoga River catching fire and Lake Erie being declared “dead” sounded the call to action; across the nation, waterways were in bad condition, which was apparent to much of the population. The response was national and bipartisan; perhaps the most important and useful element was the creation of federal-state-local funding partnerships. In those days the challenges were easily identified and it was possible to spend a little and obtain a significant result.

    Fast-forward to today – in nearly every instance, there are no federal or state partnerships; compliance with CWA falls entirely upon the local agency. Ever-tightening regulations, some warranted, some not, have created the inverse of the above – specifically you now have to spend a lot to achieve a small, incremental upgrade in water quality.

    Also unaddressed in the draft strategy is the deterioration of the infrastructure built under the original CWA – much of it now approaching 40 years of age, with installations across the country in need of significant upgrades or outright replacement. How can local agencies cope with new regulations in the face of capital investments of hundreds of millions to simply maintain existing levels of water quality? So while the draft speaks of “shifting needs and priorities,” EPA must not get ahead of the base mission local agencies face, particularly in a time of great economic stress, with little prospect for outside funding assistance.

    As the draft document states, “There is no silver bullet,” that will allow the accomplishment of CWA goals. There are however some basic components that should be incorporated into the arena:

    • Improved protection of watersheds; preventing pollutants from ever entering the ecosystem, rather than prescribing costly clean-up technologies “after the fact.” CECs fall into this category.

    • Recognition of natural sources causing exceedences – In some instances the CWA is being misapplied, with local agencies spending millions trying to attain TMDLs that can never be achieved due to the presence of natural sources of nutrients or other 303d listing sources.

    • A firm scientific foundation, preferably peer-reviewed for any new regulation.

    • A straight-forward cost – benefit analysis on new regulations, assessing among other elements, what will be achieved, over what period of time, what are the capital and operating costs and what is the lifespan of the project?

    As to “protecting what you have” – EPA suggests that more regulation and enforcement is needed to maintain those quality water resources that currently exist. It may be argued that the very presence of those quality resources is testament that existing practices and regulations are effective. However, there are instances where the current regulatory framework results in unintended harm to the environment. For instance, when energy-intensive solutions are prescribed for cleaning up wastewater, the net result is damage to the environment in terms of air pollution and global warming derived from energy generation. We encourage the EPA to extend its holistic and systemic approach to make sure that regulations consider the overall impact to the environment. Outdated, redundant and conflicting regulations must be carefully evaluated, adjusted or amended to create this synergy. We applaud the recognition that cost is a major factor in evaluating and implementing integrated water management solutions.

    EPA’s citation of green technologies should include further study of natural processes that address impacted waters and recognize that not every problem requires a technical or high-energy use solution. Greater emphasis on systemic approaches can maximize necessary infrastructure investments when viewing a watershed as an integrated system, rather than its individual technological components.

    We urge EPA to step back and take a thoughtful approach to fine-tuning the CWA, which has served the nation well. While certain new technologies and methods of evaluating water quality have merit and should be considered, the daunting costs of simply building, maintaining and operating the many elements of the nation’s existing clean water infrastructure cannot – and should not – be taken for granted.

    John R. Mundy
    General Manager
    Las Virgenes Municipal Water District
    Calabasas, CA

  3. September 18, 2010

    ASDWA Comments on “Coming Together for Clean Water:
    EPA’s Strategy for Achieving Clean Water”
    September 17, 2010

    The Association of State Drinking Water Administrators (ASDWA) is appreciative of this opportunity to comment on the U.S. Environmental Protection Agency’s (EPA) Strategy for Achieving Clean Water. ASDWA is the nonprofit association representing the drinking water program administrators from each of the 50 states, territories, the Navajo Nation, and the District of Columbia. These comments were developed with input from state drinking water programs across the U.S.

    Overarching Recommendations

    ASDWA commends EPA for the inclusion of a broad set of stakeholders in this initiative, and encourages EPA to continue to engage stakeholders as the Agency moves forward with the key actions outlined in this Strategy. This Strategy serves as a good starting point for EPA to continue to work toward improving the quality of the nation’s waters. We agree that EPA must improve and adapt regulations, permitting, and compliance/enforcement efforts as a key first step, as well as use those authorities to prioritize funding, set standards, and hold states accountable. However, we believe the Strategy needs to more explicitly mention the importance of protecting sources of drinking water – both ground and surface waters – throughout the document.

    Make Drinking Water Sources a Top Priority for Protection and Water Quality Improvement Actions: We recommend that the Agency prioritize source water assessment areas (for both surface water and wellhead protection areas) for targeted activities and funding throughout this Strategy. State drinking water programs and water utilities have invested a considerable amount of time and resources in developing source water assessments (a requirement of the 1996 amendments to the Safe Drinking Water Act) and determining susceptibility for drinking water contamination. These precious resources need to be protected to help ensure the health of our Nation’s citizens. Prioritizing drinking water sources can also save water utilities millions of dollars from having to upgrade their treatment facilities to address specific contaminants and associated treatment issues for both point and nonpoint pollution sources.

    Incorporate Considerations for Ground Water: This Strategy is focused primarily on surface waters and watersheds, and needs a much stronger emphasis on the very important ground water component of the water cycle. Ground water is used for drinking water, industrial purposes, irrigation, and other purposes. Ground water is an essential resource that makes up a significant portion of base flow in rivers and streams, and flow to lakes in many parts of the country. We recommend that EPA add ground water considerations into the text throughout the document, particularly where “the nation’s waters” and “water quality” are mentioned.

    Integrate Water Quantity Considerations: The Strategy should include considerations for water quantity as it directly relates to water quality and water supply impacts. It is important to highlight water quantity and water quality connections in watersheds and water supplies that can impact public health and safety, as well as ecological flows. Considerations should also be included for climate change and natural disasters.

    Incorporate Principles and Specific Actions for Working With Other Programs: While the principles and activities outlined in this document duly emphasize the need for EPA to work with state and local governments, this Strategy should also include principles and actions that move beyond simple coordination to describe how EPA’s clean water and drinking water programs will specifically work together, as well as with the U.S. Department of Agriculture, toward the goal of improving the quality of the nation’s surface and ground waters. Working across programs will help the Agency serve as a role model and provide leadership for state and local governments to also work together across these programs.

    Specific Recommendations

    Page 1, Paragraph 2 (also Page 2, Paragraph 3 and Page 9, last Paragraph): Safe drinking water should be specifically mentioned as an essential component of a “sustainable community.” The protections provided under the CWA are instrumental in making this possible. Without clean sources of drinking water, we cannot reliably provide communities with safe drinking water.

    Page 2, Paragraph 2 (also Page 4, Key Actions): We believe a critical component of the revitalized approach should be revising implementation of the Toxic Substances Control Act (TSCA) – and, possibly the Act itself. If we continue to rely on existing regulatory programs, we will continue to be unsuccessful at addressing chemical pollution in a timely way. TSCA programs should be reformed if we are to have accurate chemical health effects data, safety improvements, and new safety standards that address chemical exposures that significantly impact human health. Revising FIFRA regulations to require improved labeling of pesticides and herbicides would also provide for more effective environmental management of pesticides. In addition, better labeling of safety data, risks, and the need for effective buffers will improve control of pesticide runoff.

    Page 3, Final paragraph of the New Path section (and the first paragraph of the Strategies section): There is a strong and appropriate reliance on state and local efforts. However, there is little recognition that there may not be adequate resources available at the state and local levels to significantly expand their current roles.

    Page 4, Principles Bullet #2: The “cutting-edge technologies” discussed here should also include green chemistry for chemicals, as most chemicals cannot be fully removed by affordable technology. Emerging pollutants of concern must be reduced at the source, to the extent possible, and not allowed to enter the waters of the U.S. Priority, in this regard, should be given to those watersheds that are sources of public water supplies.

    Page 5, Key Actions at top of page: Increased monitoring would significantly improve understanding of nonpoint source problems. Thus, we recommend adding a key action that would include strategic monitoring to determine nonpoint source discharges. One way to accomplish such additional monitoring would be to reduce the frequency of targeted monitoring currently underway. We recommend monitoring the existing sites less frequently (trends can still be demonstrated) and shifting to monitoring in nonpoint source discharge areas and watersheds that have never been assessed (and which may be incorrectly assumed to be meeting standards).

    Page 5, 3rd paragraph under Protect What You Have…: Please add the text in italics to the following sentence: “EPA will utilize… and focus on protecting those waters that are threatened by intensive agriculture, forest harvests, and …coal and hard rock mining activities.”
    Also please add a new bullet here: “Support state efforts to improve protections for riparian lands and fund purchase of key riparian lands for preservation.”

    Page 6, Bullets #1 and 2 under Key EPA Actions: Most TMDLs are developed to derive basin or watershed scale load allocations. Designated Management Agencies then develop a plan to reduce the loadings over some extended time period. EPA should consider revising the TMDL process to require that TMDLs be “implementation-ready” or “prescriptive” and include landowner-based load allocations and required minimum BMPs.

    Page 7, Key EPA Actions: Highlight actions that will focus on reduction of nonpoint sources in addition to point sources. Some examples are follows:
    Bullet #2: Potential regulatory approaches should also include source control for reducing chemicals, personal care products, and pharmaceuticals that would otherwise be part of the the wastewater stream. NPDES permits are not addressing these constituents and even the best technologies are unable to remove them. They therefore pose downstream exposure and health effects risks. This is especially true of community drinking water intakes downstream of wastewater treatment plant discharges.

    Bullet #5: We recommend focusing attention on large scale animal operations to address: 1) the quantity of waste and needed disposal; 2) the associated cropping practices and feed production; 3) groundwater and surface water degradation from pathogens and other contaminants (including pharmaceuticals); and 4) the inadequacy of national water quality monitoring requirements. Existing farm incentives should be better leveraged to keep ground and surface waters down gradient or downstream of these facilities clean.

    Also please add a new bullet here: “Provide incentives and limits to help localities wisely manage land use practices.” The major threats to many high quality waters can be broadly classed as nonpoint sources, but are actually the result of land disturbance that is not well-managed (e.g., development, agriculture, and silviculture). While the best protected watershed is one with no human activity, watersheds where our activity is conducted thoughtfully, in appropriate locations, and with good planning and implementation, can be protective of water quality and quantity. In addition to green infrastructure, ecosystem services should also be considered, as well as means to compensate land owners who provide these services by managing their activities to conserve water quality.

    Pages 6-8: In this section, the focus appears to be primarily on point source actions. This is especially true in the bullets on pages 7 and 8. Only on the top of 8 are nonpoint sources addressed. Given the relative ineffectiveness, in many cases, of voluntary approaches (guidance, education, etc.) in controlling nonpoint sources, we suggest that consideration be given to some regulatory or “quasi-regulatory” approaches to nonpoint source control.

    Page 8, First Bullet at top of page: Add the text in italics to the end of the sentence, “Initiate scientific report(s)…. in key areas, particularly for drinking water supply areas.”

    Page 8, Bullet #2 under Key EPA Actions at the bottom of the page: Groundwater protection should be discussed as part of the integrated water management approach. As a key component of the water cycle, we need to promote better understanding of the connectivity between surface water and groundwater, as well as promote replenishment of groundwater by infiltration.
    Also please add a new bullet here: The Strategy should note the importance of ensuring that the connection between land uses and water quality is better understood and that tools are in place to make better land use decisions to protect critical water sources.

    Page 9, Bullet #2: We recommend adding the follow sentence, “Encourage states to use their CWSRF for projects… and give priority to projects in drinking water supply areas.”

  4. September 17, 2010

    EPA needs to make stakeholders accountable. Why should a Concentrated Animal Feeding Operation (CAFO) be fed with farm subsidies such as those in the Farm Bill and then given more subsidies in the Environmental Quality Incentives Program (EQIP) as inducement to clean up the inevitable water pollution. EPA might ask Congress to abolish the Department of Agriculture along with the Farm Bill in the name of conserving taxpayer money, small sustainable farms, and water quality.

    Likewise the Clean Water State Revolving Fund should be poured down the drain. Each user then would pay for water at the point of use rather than paying for others to abuse underpriced water.

    Although allusion was made to the market, the policy is and always has been to pervert the market with policies such as paying the polluter, then regulating the resultant overuse and abuse of natural resources such as water, while counterproductively taxing economic effort–even that which is green. Government now proposes to spend money to subsidize a local green economy. But a green economy will naturally evolve when the only tax is that which is on the earth with all its wealth including land, water, minerals, and electromagnetic spectrum.

    Surely in your work in protecting the environment, you must have longed to think beyond the straightjacket of narrow Congressional mandates of subsidy and regulation. Why not employ environmental economists who can straddle both the environment and the economy that it supports. Then in reports to Congress, hopefully, you will be able to advocate for water with a one-two punch of environment-economy.

  5. September 17, 2010

    Thank you for the opportunity to provide comment on the Environmental Protection Agency’s draft water strategy. U.S EPA, Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water (Public Discussion Draft, Aug. 2010) (hereinafter “Draft Strategy”). These comments are submitted on behalf of the Natural Resources Defense Council. NRDC is a national, nonprofit organization dedicated to protecting public health and the environment. Founded in 1970, NRDC has more than 1.3 million members and online activists in all fifty states. NRDC maintains offices in New York, NY, Washington, DC, Chicago, IL, San Francisco, CA, Santa Monica, CA, and Beijing, China.

    In general, we believe the draft strategy highlights the important elements of the next several years of water pollution control and watershed protection, but by and large lacks defined plans for achieving the goals it identifies, much less a rigorous timeline for making needed improvements. We strongly urge the agency to develop a more robust strategy that will actually guide EPA staff and decisionmakers’ actions in the years to come. Such a strategy should contain two critical elements, largely missing from the draft document: (1) a set of ambitious, yet achievable, measureable performance goals for the Nation’s water quality; and (2) a suite of specific administrative actions that EPA will undertake in pursuit of those goals.

    EPA’s strategy should lay out targets for recreation (e.g., 50 percent fewer beach closing days in within a set timeframe; eliminating fish consumption advisories), for ecological needs (e.g., a net increase in wetland and headwater resources, considering function, not merely acreage; no new valley fills in Appalachia), for water availability (e.g., zero net increase in water consumption from new development; 100 percent groundwater recharge), and for pollution control (e.g., eliminating sewage overflows; reducing nitrogen and phosphorus loading to the Gulf of Mexico by 45 percent). From these kinds of targets, the necessary set of policy solutions will be more clear, as will the degree to which individual administrative actions should be prioritized.

    Below are NRDC’s observations on a variety of issues raised by the draft.

    1. Restoring the historic scope of the Clean Water Act’s pollution control programs is a critical element of any clean water strategy.

    EPA appropriately commits to “support legislation and consider administrative action to restore the CWA protections to wetlands and headwater streams that provide clean water for human and ecological uses.” Draft Strategy at 3 & 6. For many years, the federal Clean Water Act had protected small streams and wetlands from unregulated pollution or destruction. However, this has changed significantly since the Supreme Court handed down a pair of decisions about what kinds of aquatic features are considered “waters of the United States,” protected by the law. See generally Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Eng’rs (“SWANCC”), 531 U.S. 159 (2001); Rapanos v. U.S., 547 U.S. 715 (2006). Since then, the federal agencies charged with implementing the Act have given unclear guidance about what kinds of water bodies remain protected, and have effectively written off roughly 20 percent of the wetlands in the continental U.S. Courts also have struggled to figure out what kinds of resources are still covered.

    As a result, many of our country’s smaller streams and wetlands are at risk of being polluted or even buried by mining companies, developers, industrial wastewater sources and others without so much as a Clean Water Act permit to limit the effect that the activity will have on aquatic resources.

    EPA knows this problem well. Administrator Jackson has personally spoken about the loss of Clean Water Act protections as a key problem to the implementation of the law today, and the heads of several agencies, including EPA, wrote a letter last May that stressed the importance of fixing this problem legislatively, and the critical need to restore broad protections to features throughout the watershed. As the agencies stated, “[a]ll of the environmental and economic benefits that these aquatic ecosystems provide are at risk if some elements are protected and others are not.” Letter from Nancy Sutley, Chair, Council on Environmental Quality, et al., to Senator Barbara Boxer, Chairman, Environment and Public Works Committee, at 2 (May 20, 2009).

    Recent letters from EPA and the Corps to Chairman Oberstar reinforce this view. In April, Administrator Jackson observed that “[r]estored Clean Water Act jurisdiction would better enable EPA to assure vital public health, environmental, recreational and economic benefits of clean and safe water.” Letter from Lisa P. Jackson, EPA Administrator, to James L. Oberstar, Chairman, House Transportation & Infrastructure Committee (Apr. 30, 2010). In a similar vein, Assistant Secretary of the Army for Civil Works, Jo Ellen Darcy, wrote in June that the Supreme Court’s decisions “have created a regulatory environment which is becoming more unpredictable and less efficient.” Letter from Jo Ellen Darcy, Assistant Secretary of the Army for Civil Works, to James L. Oberstar, Chairman, House Transportation & Infrastructure Committee (June 4, 2010).

    As the agency recognizes, only Congress can permanently and certainly restore the law’s safeguards to our water bodies; unless legislation, like the pending Clean Water Restoration Act (or, in the House, America’s Commitment to Clean Water Act), is adopted, the critical resources that help reduce pollution and flooding, supply drinking water, and provide a host of other human and ecological benefits will be further jeopardized. EPA must work with leaders in Congress to ensure that proposed legislation fully accomplishes the goal of restoring protections to previously-protected waters, and must make a concerted effort to make information public about the kinds of resources at risk because of the decisions.

    Despite the critical need for legislation, the House of Representatives to date has utterly failed to take action on that body’s version of the bill. If this does not change, the best opportunity to pass the legislation – after the bill passed out of the Senate committee and with a President in office who had committed to support a legislative fix – will have been squandered. In the real world, that means nearly a full decade has passed since SWANCC, with countless waters found not to be covered by the Act’s pollution control programs; the harm to the ecosystem, to public health, and to the economy caused by that loss of headwater streams and wetlands is hard to imagine.

    Accordingly, NRDC believes that EPA must try to stop the bleeding and act to protect the resources that Congress has failed to safeguard. We support the agency initiating a rulemaking to clarify what aquatic resources remain covered “waters of the United States,” one which is both consistent with the Supreme Court’s decisions but also cognizant of the extremely limited nature of those decisions. Moreover, the rule must keep faith with the long history of comprehensive protection of water bodies under the Clean Water Act. As a general matter, the Supreme Court: (1) did not strike down the existing regulations defining “waters of the United States”; (2) only found that the so-called “Migratory Bird Rule,” as applied to an Illinois site, was invalid in SWANCC; and (3) did not reach a majority opinion as to an interpretation of the Act in Rapanos, such that no controlling rule of law limiting CWA jurisdiction emerges from that decision. Of course, EPA must also consider the judicial rulings that have implemented these decisions, but NRDC strongly believes that aquatic resources may still be broadly included in a regulatory definition of “waters of the United States.”

    2. Nutrient control is essential and the strategy does not instill confidence that EPA will aggressively address this kind of pollution.

    Today, nutrient pollution is pervasive and pernicious. According to a recent estimate, of assessed waters, nutrients are connected directly or indirectly to 51% of impaired river and stream miles, 52% of impaired lake acres, and 58% of impaired square miles of bays and estuaries. U.S. EPA, An Urgent Call to Action: Report of the State-EPA Nutrient Innovations Task Group, at 5-6 (Aug. 2009), available at http://www.epa.gov/waterscience/criteria/nutrient/nitgreport.pdf (hereinafter “Urgent Call”). Nutrients contribute to a host of water quality problems, including causing an overabundance of algal growth and resulting low oxygen levels (such as the mammoth hypoxic, or “dead,” zone in the Gulf of Mexico), nitrate toxicity to infants, diminishment of aquatic community structure and function, and harmful – even toxic – algal blooms. These problems call for a suite of strategies aimed at addressing the various sources of nutrient pollution. Many of those strategies do not require new legal authority, and could be implemented right away.

    a. EPA must ensure that States adopt comprehensive numeric nutrient criteria.

    As the agency knows well, water quality standards that adequately protect waters’ designated uses are critical to the proper functioning of the Clean Water Act’s regulatory structure. However, numeric nutrient water quality standards are largely absent in critical waterways across the country. EPA’s own internal watchdog, the Office of Inspector General (OIG), found that states and EPA had failed to make needed progress in establishing numeric nutrient standards; as of last year, half the states had no numeric criteria whatsoever, and many other states lacked such standards for whole categories of water bodies. In the Mississippi basin, the news is worse. Of the ten States that contributed the most nitrogen to the Gulf of Mexico, only one — Tennessee — had any kind of numeric nitrogen standard, and seven of the ten States responsible for the most phosphorus delivery to the Gulf had no numeric phosphorus standards. U.S. EPA, Office of Inspector General, EPA Needs to Accelerate Adoption of Numeric Nutrient Water Quality Standards, Report No. 09-P-0223 (Aug. 26, 2009). These statistics are dispiriting in view of EPA’s duty to promulgate water quality standards where states fail to issue necessary standards. 33 U.S.C. § 1313(c)(4).

    The absence of numeric criteria is not an academic problem. Numeric standards are the foundation for clean-up plans when the standards are not met, and they help State water officials determine how much pollution a given industrial or municipal discharger must remove from its waste stream. Given these functions, one can easily see the benefit of a numeric standard, as opposed to the alternative — a narrative standard. While water quality officials can take a numeric standard (X milligrams per liter, for instance) and establish regulatory requirements aimed at achieving that number, it is far harder to write a cleanup plan or a discharge limit to address narrative prohibitions. For example, some States prohibit unnatural levels of algae, but figuring out how much is natural and how much is unnatural is very subjective, and that kind of ambiguity often leads State regulators to throw up their hands and do nothing.

    As former Assistant Administrator for Water Benjamin Grumbles wrote in 2007, there are several benefits from numeric standards:
    • “easier and faster development of TMDLs;
    • “quantitative targets to support trading programs;
    • “easier to write protective NPDES permits;
    • “increased effectiveness in evaluating success of nutrient runoff minimization programs; and
    • “measurable, objective water quality baselines against which to measure environmental progress.”

    Memorandum from Benjamin H. Grumbles, EPA Assistant Administrator for Water, to Directors, State Water Programs, et al., at 2 (May 25, 2007). Given the myriad benefits of numeric nutrient standards, the failure of narrative standards to protect the nation’s waters from various nutrient-related harms, and the repeated calls that EPA has made to states to get numeric standards in place, EPA cannot credibly argue that these requirements are not necessary to achieve the mandates of the Clean Water Act, and thus must either ensure that states adopt numeric standards immediately, or promulgate federal standards.

    It is bad enough that EPA has failed to make sure that states safeguard their own waters from the effects of nutrient pollution, but the agency has failed even more egregiously when it comes to interstate nutrient pollution. The OIG report on numeric standards indicates that one reason for state failures to set standards for their waters is that cleaning up nutrient pollution might lead to tougher restrictions on certain businesses, which could be politically unpopular. In the same vein, the report found that States essentially disregarded downstream impacts (like the Dead Zone) in the standard-setting process, even though federal regulations require states to consider such effects. See 40 C.F.R. § 131.10(b) (“In designating uses of a water body and the appropriate criteria for those uses, the State shall take into consideration the water quality standards of downstream waters and shall ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters.”). One can imagine that it is hard to convince decisionmakers in Iowa, Indiana, or Illinois that they need to strictly control in-state sources of pollution that cause harm off the Louisiana coast.

    The IG’s solution is basic — EPA must lead where the States have fallen behind. The agency has the authority to establish necessary standards when States do not, and EPA can better withstand parochial political pressures. The IG recommends that EPA identify “significant waters of national value” that need numeric standards, and establish the standards, taking into account the needs of downstream waters. We agree; the agency should promptly develop numeric criteria for the Mississippi, its tributaries, and the Gulf of Mexico. In July of 2008, several organizations petitioned EPA to promulgate necessary numeric standards and total maximum daily load (TMDL) clean up plans – and showed with particularity the need for such leadership in the Mississippi basin. EPA has not taken action on that petition. See Minnesota Center for Environmental Advocacy et al., Petition for Rulemaking Under the Clean Water Act: Numeric Water Quality Standards for Nitrogen and Phosphorus and TMDLs for the Mississippi River and the Gulf of Mexico at 55-69 (July 30, 2008), available at http://www.elpc.org/documents/NutrientPetitionFINAL.pdf.

    The OIG report and the groups’ petition are consistent with a prior report of the National Research Council, which faulted EPA’s lack of leadership when it came to implementing the Clean Water Act along the Mississippi River. The report labeled the river an “orphan” from the standpoint of pollution monitoring and assessment, and identified several ways in which EPA could help bring about positive change, including by developing needed standards and TMDLs. See generally McKnight Foundation Environment Program, User’s Guide: Mississippi River Water Quality and the Clean Water Act, available at http://www.mcknight.org/files/pdfs/MSWQCWA_user_guide.pdf. The agency should promptly grant this petition and get about the business of getting standards and pollution reduction plans in place that will protect and clean up these critical national resources.

    b. EPA must update its published information about the capabilities of “secondary treatment” and specifically consider the inclusion of nutrient controls in the generally-applicable requirements for publicly owned treatment works.

    Municipal sewage contains significant nutrient pollution. In some watersheds, publicly owned treatment works (POTWs) are important contributors to the nutrient load. For example, according to EPA’s discussion document for this forum, municipal wastewater sources discharge 21% and 25% of the phosphorus and nitrogen, respectively, to the Chesapeake Bay. U.S. Environmental Protection Agency, Discussion Document: Coming Together for Clean Water, available at http://blog.epa.gov/waterforum/discussion-document/. In large part, however, these facilities have not been called upon to reduce their nutrient pollution; according to a recent in-depth analysis of the nutrient problem and potential solutions, “[o]f more than 16,500 municipal POTWs nationwide, approximately 4 percent have numeric limits for nitrogen and 9.9 percent for phosphorus.” Urgent Call at 14 (citations omitted).

    EPA has authority under the Clean Water Act to require POTWs to treat their effluent to remove nutrients. In particular, such facilities must achieve pollution control achievable by “secondary treatment,” as defined by EPA, and the agency is required to update the information available about the pollution control capabilities of “secondary treatment” periodically. See 33 U.S.C. §§ 1311(b)(1)(B) & 1314(d)(1). EPA is long overdue in its obligation to update this information, and should do so promptly and include nutrient control in its assessment of the capability of plants. Indeed, when a task force of key state and EPA water pollution control officials recently issued a report on tools to combat nutrient pollution, they identified five tools having “the most promise to reduce nutrient loadings and therefore judged to have the highest overall effectiveness,” and the list included establishing “technology treatment requirements for nutrients and thereby establish[ing] technology based limits for NPDES point sources that discharge nutrients to water — update secondary treatment requirements.” See Urgent Call at C-6 (emphasis added).

    EPA has a pending petition from NRDC, the Environmental Law and Policy Center of the Midwest, the Sierra Club, the Waterkeeper Alliance, the Missouri Coalition for the Environment, Midwest Environmental Advocates, the Prairie Rivers Network, the Iowa Environmental Council, the Minnesota Center for Environmental Advocacy, American Rivers, and the Gulf Restoration Network, on this very topic. The petition demands that EPA update its published information about the capabilities of “secondary treatment” and specifically urges the agency to consider the inclusion of nutrient controls in the generally-applicable requirements for publicly owned treatment works. NRDC et al., Petition for Rulemaking Under the Clean Water Act: Secondary Treatment Standards for Nutrient Removal (Nov. 27, 2007). That petition, filed in November 2007, should be promptly granted and the standards should be revised in short order.

    c. EPA must better control pollution from concentrated animal feeding operations.

    As it has done with POTWs, EPA has also failed to adequately address nutrient pollution from another category of point source nutrient polluters: concentrated animal feeding operations (CAFOs). Also like POTWs, the sector can be far better controlled via regulatory changes, and we respectfully request that EPA take steps to revisit the rule concerning the Clean Water Act permitting requirements and effluent limitation guidelines for these animal factories, which the Bush administration adopted in its waning months. 73 Fed. Reg. 70,418 (Nov. 20, 2008). Please note that this rule is presently in litigation, that NRDC is one of the parties that petitioned for review of the rule, and that NRDC and the other environmental petitioners reached a settlement agreement with EPA in that litigation. National Pork Producers Council v. U.S. Environmental Protection Agency, No. 08-61093 & consolidated cases (5th Cir.). However, these regulatory improvements are separate from that litigation and need not await the resolution of that case, nor implementation of the settlement.

    The Bush administration rule primarily relies on CAFO operators making their own judgments about whether facilities will discharge. If a CAFO operator concludes that the facility will not discharge, then s/he can elect not to seek a pollution control permit under the National Pollutant Discharge Elimination System (NPDES) program, subject to little or no oversight by permitting authorities. This approach is a dramatic reversal of the policy embodied in the 2003 CAFO rule, in which the agency required all large CAFOs with the “potential to discharge” to apply for a NPDES permit. EPA believed such a strategy was necessary because of inadequate Clean Water Act compliance by the industry and because of the intermittent nature of CAFO discharges.

    Although a court invalidated the “potential to discharge” approach, it made clear that EPA’s conclusion that large CAFOs should be subject to enhanced oversight was well-founded. In particular, the court said, “EPA has marshaled evidence suggesting that such a prophylactic measure may be necessary to effectively regulate water pollution from Large CAFOs, given that Large CAFOs are important contributors to water pollution and that they have, historically at least, improperly tried to circumvent the permitting process.” Waterkeeper Alliance, Inc. v. U.S. EPA, 399 F.3d 486, 506 n. 22 (2d Cir. 2005). Crucially, the court’s decision left EPA with many legal tools to require CAFOs to obtain pollution control permits or demonstrate that they will not discharge. We strongly urge you to exercise that authority in an improved rule, as the history of this issue makes it unreasonable to rely on CAFO operators to properly determine whether facilities require permits, and we seriously question whether agency enforcement resources are adequate to ensure full compliance with the permitting requirement.

    A second way to improve this rule is to amend its overbroad interpretation of an exemption in the Clean Water Act for “agricultural stormwater.” This decision denies permitting authorities the ability to meaningfully control significant pollution from a CAFO’s land application area under the Act, and is more pernicious today in light of the permitting approach reflected in the final rule. The land application area is an integral part of a CAFO, which is a statutorily-defined point source; accordingly, any discharges from this area should be considered regulated point source releases. Moreover, exempting a significant part of a facility’s discharge from the Clean Water Act makes it easier for an operator to evade the permitting requirement which, as discussed above, EPA previously tried to make it harder to do.

    Finally, EPA has the discretion under the Act to identify which facilities constitute “CAFOs,” and therefore are “point sources” under the law. See 33 U.S.C. § 1362(14). The agency can bring more facilities into the permitting system by adopting lower animal number thresholds to trigger treatment as a CAFO and it also can tighten the requirements for on-site nutrient management. We strongly urge EPA to do so. The agency is considering doing this very thing in the Chesapeake Bay watershed. See U.S. EPA, Rulemaking Gateway, Revised Regulations for Concentrated Animal Feeding Operations (CAFOs) in the Chesapeake Bay Watershed (action not yet proposed), available at http://yosemite.epa.gov/opei/rulegate.nsf/byRIN/2040-AF20. Moreover, EPA has already threatened to employ a variant of this strategy in the Chesapeake region, as one of the potential consequences for states’ failure to develop required plans or make satisfactory progress toward needed reductions of nutrients and sediment. See Letter from Shawn M. Garvin, Regional Administrator, EPA Region III, to L. Preston Bryant, Virginia Secretary of Natural Resources, at p. 8, encl. B (Dec. 29, 2009) (“The NPDES permitting regulations . . . authorize the Regional Administrator to designate any Animal Feeding Operation (AFO) as a CAFO upon determining that it is a significant contributor of pollutants to waters of the United States.”), available from http://www.epa.gov/region3/chesapeake/bay_letter_1209.pdf.

    d. EPA should work with USDA, and with states implementing the section 319 program, to track the implementation of agricultural management practices and systematically monitor their success or failure, so as to create a knowledge base that can be used in future regulatory and funding programs.

    Of course, a significant amount of the nutrient pollution in many watersheds is attributable to agricultural runoff, which is poorly controlled under the Clean Water Act, as it currently exists. Leaders in Congress are considering strengthening the Act’s requirements to ensure that states in the Chesapeake Bay region fully address all sources of nutrients, see, e.g., H.R. 3852 & S. 1816, and we believe this kind of approach is justified for the Bay as well as other watersheds, such as the Mississippi Basin. Certainly, in those watersheds (like the Mississippi) where agricultural runoff constitutes the vast majority of the nutrient pollution, we believe that actually achieving water quality goals will require an enhanced regulatory approach. In the meantime, however, EPA should step up its efforts to catalog and measure the effectiveness of management practices that can reduce the nutrient pollution from lands in agricultural production.

    Under section 319 of the Clean Water Act and under various Farm Bill conservation programs (especially as some of those programs support the Mississippi River Basin Initiative), federal funds are available for the implementation of projects that are designed to reduce agricultural water pollution. To ensure that these projects provide the most benefit, and to identify those kinds of projects that can be replicated to good effect in other places, we believe that critical information about individual projects should be tracked, and the water quality impacts of them should be monitored. EPA can implement this approach directly under the section 319 program, and it should work closely with USDA to make it an essential piece of conservation program projects aimed at reducing nutrient pollution. Such a recommendation would help address a concern identified by the National Research Council, which found: “A stronger commitment to performance-based, farm-level conservation actions and water quality monitoring will be necessary to reduce the extent of northern Gulf of Mexico hypoxia. Most current nutrient control efforts, which are made possible by USDA land and water conservation programs that promote use of best management practices . . ., are not closely monitored, if at all.” National Research Council, Nutrient Control Actions for Improving Water Quality in the Mississippi River Basin and Northern Gulf of Mexico, at 23 (Dec. 11, 2008) (prepublication copy).

    e. The draft strategy is extremely vague on how EPA intends to achieve meaningful nutrient reductions.

    Rather than commit to this kind of detailed course of action using its existing Clean Water Act tools, the document addresses nutrients by saying that EPA “sees a better means to addressing this [nutrient] problem on the critical path to success.” Draft Strategy at 3. Specifically, it says that “EPA will work in partnership with states to better manage excess nutrient enrichment in surface waters and promote state accountability frameworks that include publicly-available, science-based, state nutrient reduction implementation activities that are watershed-based and have locally-binding mechanisms to achieve the reductions.” Id. Later in the document, the agency says that EPA will “[w]ork in partnership with states to better manage excess nutrient enrichment in surface waters, including:
    • “Initiating scientific report(s) based on best available science and subject to peer review to determine necessary nutrient loads to restore and maintain water quality in key areas;
    • “Developing and implementing guidance to assist permitting authorities in establishing protective limits for point sources based on narrative water quality standards for nutrients;
    • “Improving public understanding of the seriousness of nutrient pollution including impacts on drinking water and other public health, environmental impacts, and economics; and
    • “Leveraging federal funding to assist communities in implementing targeted nutrient reduction strategies.” Id. at 8.

    If that is the “accountability framework” to which EPA refers, then it is woefully inadequate. Aside from developing guidance to help translate narrative standards in point source permits, this is essentially more of the same strategy that has failed to address these pollutant sources for many years.

    That is not to say that NRDC is unwilling to consider some kind of alternative approach by which a state aggressively reduces nutrient pollution in order to avoid near-term federal action on nutrient criteria. However, we need to see much more detail about what that alternative framework would look like, what EPA believes it would need to include, and what nutrient actions would be forestalled by such a program (and for how long). For instance, if the idea is that EPA would provide those states with rigorous nutrient control programs and a defined plan to expeditiously develop numeric nutrient criteria more time before the agency issued its own criteria, as compared with those states lacking such a program, that could be a reasonable approach. The states’ nutrient control program, however, would need to have specific nutrient reduction goals, include enforceable controls on the significant sources of nutrients (including non-point sources) that cut pollution in a meaningful way, and aggressively implement narrative criteria in the interim.

    3. Systematic assessment of water quality is important, but the collection of such information should directly support water pollution control efforts.

    We strongly support efforts to collect the best information about the condition of the nation’s waters. We also have found the documents produced as part of the National Aquatic Resource Surveys to be informative and useful. We certainly agree with EPA’s commitment to complete these surveys, which will “provide baseline” information “for documenting trends in degradation and major stressors in the next several years,” Draft Strategy at 5, but we also believe EPA must make a long-term commitment to updating these surveys on a regular basis, to give indications of whether progress is being achieved.

    We also support the idea described in the strategy document of identifying “healthy watersheds.” It is useful for citizens to know what aquatic resources they can swim and fish in with confidence. A concerted effort to identify watersheds where the water quality is good should be integrated with state and EPA antidegradation policies and the information should be shared with water quality officials and the public, since each state should have requirements aimed at generally preserving the condition of water quality that “exceed[s] levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water,” and aimed at maintaining the condition of “high quality waters [that] constitute an outstanding National resource. . . .” 40 C.F.R. §§ 131.12(a)(2) & (3).

    Assessing the condition of the waters themselves is not necessarily going to be enough to inform good policy choices, however. Part of any systematic assessment ought to be identifying the sources of water pollution. Because many kinds of pollutants come from multiple sources, designing the proper regulatory response to the presence of such pollutants in a water body will require an understanding of what the major sources are.

    4. Protecting healthy waters from mining waste is critical, and EPA needs to take a leadership role in this arena.

    The strategy promises to “[u]se the full suite of CWA tools to protect high-quality streams from destruction and degradation caused by mining activities.” Draft Strategy at 6. While this sounds like a laudable goal, in fact it is incomplete. For one, “high-quality” could mean different things to different people; we urge EPA to consider water quality on a parameter-by-parameter basis, rather than a water body-by-water body basis. In the antidegradation context, EPA should clarify that a Tier 2 analysis must apply to each pollutant for which the water body meets water quality standards. Second, while streams are unquestionably important, mining activities also threaten lakes, wetlands, and other water bodies. One need not look beyond Alaska, where the permitted Kensington Mine is expected to destroy virtually all aquatic life in Lower Slate Lake. Elsewhere in the state, British mining giant Anglo American and Canadian-based Northern Dynasty Minerals established the Pebble Partnership to develop and operate a gold, copper, and molybdenum mine – Pebble Mine – at the headwaters of the Bristol Bay watershed. Given the size of the deposit and its remote location, any mining operation will leave an immitigable footprint on the region.

    More fundamentally, while EPA’s actions with regard to mining pollution under President Obama have been an improvement over the policies of the Bush administration, the agency has not nearly employed “the full suite of CWA tools” available to it.

    First and foremost, the agency has left in place the Bush administration’s regulatory change to the definition of “fill material,” which allows mining waste to be classified as “fill material,” the discharge of which the Army Corps of Engineers can authorize. EPA and the Corps should reverse this destructive rule in order to align the agencies’ Clean Water Act regulations with the fundamental purpose of the Act itself – stopping the use of the Nation’s waters as dumping grounds.

    In addition, if EPA is committed to using the full scope of its authority to curtail mining-related pollution, there are numerous administrative actions that it could undertake (though these are not a substitute for reversing the “fill rule”). As drafted, the strategy does not provide any detail about which, if any, of these tools it plans to employ. EPA should make clear which of these measures it intends to undertake, and by when. It is abundantly clear – as evidenced by the lawsuit that followed EPA’s announcement of guidance and scientific studies concerning conductivity levels affected by coal mining operations in Appalachia – that the mining industry will fight pollution regulation tooth-and-nail, so the agency needs to get these improvements underway so as to get them implemented as soon as possible. These additional measures include:
    • Rescind immediately the so-called “Regas Memo,” which directed that discharges of waste meeting the definition of “fill material” be exempt from applicable effluent limitations.
    • Strictly enforce the requirements of the 404(b)(1) guidelines to: ensure that functional analyses of proposed fills and proposed mitigation projects are conducted and are scientifically valid (or ensure the project is not allowed to proceed); prohibit proposed fills that cause or contribute to the violation of state water quality standards for such mining-related pollutants as selenium; and specify minimum requirements for cumulative impact analyses.
    • End the practice of allowing mining companies to impound natural waters and treat the impoundment as a “waste treatment system” which is not considered a “water of the United States” protected by the Clean Water Act. This practice is fundamentally inconsistent with the basic intent of the Act, and is also inconsistent with the agencies’ intent when the exclusion was promulgated.

    Where mining projects cannot meet Clean Water Act standards, EPA is charged with the responsibility under the Act to step in. This means objecting to improper state-issued NPDES permits for mining activities and/or using its section 404(c) veto authority under those circumstances where the discharge of dredged or fill material “will have an unacceptable adverse effect” on any one of a number of environmental values. We applaud the agency for being willing to use this authority with respect to the Spruce No. 1 mountaintop removal coal mine in Logan County, West Virginia.

    5. EPA should better explain how it will replicate the work in the Chesapeake Bay for other degraded waters.

    EPA indicates that it will use the Chesapeake as a model for improving TMDL plans and enhancing EPA oversight of progress on clean-up goals. Draft Strategy at 6.

    We agree that the Chesapeake restoration program could serve as an opportunity to prove that large-scale interstate watersheds with significant unregulated sources of pollutants like nutrients can be cleaned up. However, we caution that federal leadership will be critical in getting the Chesapeake and other similar watersheds restored, and that additional legal authority may help to ensure the reductions will be achieved. As EPA knows well, the Chesapeake Bay watershed will soon have a TMDL for nitrogen and phosphorus pollution and sediment; this will be established by EPA, and EPA has been steering the process, including laying out milestones for action, and providing guidance about the agency’s expectations for state action in keeping with federal requirements.

    Without this kind of leadership, failure seems likely. For instance, EPA has repeatedly stated that TMDLs that rely on reductions from nonpoint sources to achieve the overall load targets must provide “reasonable assurances” that the load allocation to nonpoint sources will be achieved. See, e.g., Memorandum from Robert Perciasepe, EPA Assistant Administrator for Water, to Regional Administrators & Regional Water Division Directors, New Policies for Establishing and Implementing Total Maximum Daily Loads (TMDLs), at 5 (Aug. 8, 1997). However, EPA needs to make sure that states’ claims and analyses that reductions will in fact occur are reasonable. Absent that, the political difficulty of achieving meaningful reductions from nonpoint sources like agricultural runoff could mean that the TMDL target – and thus the cleanup to water quality standards – will not be achieved.

    The Chesapeake Bay cleanup also arguably has a leg up on other restoration efforts – there is a statutory requirement specific to the Bay that requires EPA to “ensure that management plans are developed and implementation is begun by signatories to the Chesapeake Bay Agreement to achieve and maintain” several environmental values in the ecosystem. 33 U.S.C. § 1267(g)(1). Relying at least in part on this authority, EPA has been able to insist on detailed watershed plans and expect that the signatory states (MD, VA, PA & DC) will have reduction programs that are based on enforceable requirements, even as applied to non-point sources. Letter from William C. Early, EPA Region III Acting Regional Administrator, to L. Preston Bryant, Virginia Secretary of Natural Resources at 16, encl. B (Nov. 4, 2009). This suggests that EPA may benefit from having comparable legal requirements to enable it to adequately address similar pollution problems in other significant watersheds.

    Finally, if EPA intends to treat the Chesapeake restoration as a model for other similar efforts, the agency should not create piecemeal regulations aimed only at the Chesapeake, as it seems intent on doing with regard to CAFOs. Instead, EPA should promulgate nationwide improvements to its CAFO rule, as these comments discuss above.

    6. EPA’s plan to reduce pollution is mostly a laundry list of work underway.

    In describing the ways that EPA intends to “more fully utilize regulatory tools and enforcement to address a number of water quality challenges,” Draft Strategy at 7, EPA largely catalogs different initiatives currently being pursued, including a potential rulemaking concerning sanitary overflows, and regulations for discharges from developed areas. This is not to say these efforts are not worthwhile; to the contrary, NRDC strongly supports EPA developing strong regulations concerning these discharges. However, this section seems unduly focused on the near term, rather than describing a set of actions aimed at achieving specified clean water goals. As indicated above, those kinds of specific targets are crucial if EPA is to have a water strategy that actually guides its day-to-day work toward measureable indicators of cleaner water.

    That being said, NRDC does of course have views on several of EPA’s listed initiatives, which will not be repeated here. NRDC, along with American Rivers, filed comments on the public notice concerning permit requirements for sanitary sewer overflows and peak wet weather discharges from POTWs. See Letter from Katherine Baer, American Rivers & Lawrence Levine, NRDC, to Water Docket (Aug. 2, 2010). With regard to the rulemaking concerning stormwater pollution from developed areas, NRDC has filed comments both on the proposed information collection request, see Letter from Jon Devine et al., NRDC, to Water Docket (Dec. 29, 2009), and the agency’s request for stakeholder input on strengthening the regulations, see Letter from David Beckman et al., NRDC, to Water Docket (Feb. 26, 2010).

    NRDC commends EPA for recognizing in this section of the Draft Strategy that auditing the implementation of ongoing point source programs is critical to ensuring that they deliver needed pollution reductions. We do not believe it is necessary to limit such efforts to those programs “that have significant nutrient reduction potential,” as the strategy indicates. Rather, we believe that vigorous oversight of facility compliance and state pollution control practices will benefit multiple sectors, from municipal stormwater to mining to livestock. In that connection, we believe one particular area that warrants EPA’s attention is in the area of TMDL implementation. EPA should ensure that TMDLs, existing or drafted in the future, are then properly implemented through NPDES permits. In our experience, though TMDLs may be mentioned in the relevant permits, too often permitting authorities do not provide for effective enforcement or actual incorporation of the TMDL as a component of the permittee’s obligation, with the end result that even if a TMDL is adopted with appropriate limits, it may not get fully put into effect in actual practice.

    7. A program to enhance watershed resilency and revitalize communities is sorely needed, but the Draft Strategy is far too vague to advance such a program, and in some respects appears to undermine current requirements.

    The most disappointing part of the Draft Strategy is its final section. It is festooned with phrasing that sounds impressive, promising “multi-benefit solutions,” a “holistic and systemic approach,” to “break down traditionally stovepipe[d] divisions,” include “integrated water management approaches,” and to “better integrate traditionally siloed areas,” for example. However, the section is frustratingly devoid of detail about how these goals will be achieved.

    To take one example, how will carbon emissions and predicted impacts from climate change be integrated into infrastructure planning and operations? EPA promises to “better incorporate[e] adaptation and mitigation strategies” into infrastructure programs, but what regulatory authorities can EPA draw on to make those changes occur, and what administrative changes (if any) does EPA need to undertake to realize this integration? How specifically can and should funding programs under the Clean Water Act account for infrastructure projects that could be impacted by changed precipitation patterns in the future, or for projects that increase or decrease greenhouse gas pollution?

    Even worse, EPA’s treatment of green infrastructure in this section often makes it sound like a useful, but largely voluntary, strategy that the agency will “[p]romote” “[e]ncourage” or “consider[].” However, we know that using green infrastructure in urban/suburban/municipal settings is in many circumstances a cost-effective and reliable means of addressing stormwater pollution at its source, and, as a consequence, its use should be required through the Clean Water Act’s regulatory programs today. For example, in order to satisfy the Clean Water Act’s requirement that MS4 permits “shall require controls to reduce the discharge of pollutants to the maximum extent practicable,” 33 U.S.C. § 1342(p)(3)(B)(iii), such permits must contain performance standards for the implementation of green infrastructure that prevents the generation of stormwater.

    8. Conclusion

    Thank you for the agency’s commitment to improving the quality of the Nation’s waters and for the work that has gone into the “Coming Together for Clean Water” effort and drafting this document. We hope that the Draft Strategy can be significantly improved and made more detailed, and would be delighted to work with EPA on the strategy going forward.

  6. September 17, 2010

    On behalf of the Vermont Department of Environmental Conservation, I would like to offer the following comments on the draft Coming Together for Clean Water report.

    General comments:

    The first AND ONLY mention of “nonpoint source pollution” does not occur until page 6 of the document. The importance of nonpoint source pollution must be highlighted on page 1 and carried throughout the document. While it is true that point sources could always pollute less, we need to overcome the sense that making permits more stringent is the only way to ensure pollutions reductions. This approach is guaranteed to have the same, unacceptable results we have had to date.

    EPA identifies the need to “improve and adapt regulations, permitting and compliance/enforcement efforts as a key first step to change our current path.” Absent from this sentence – and generally downplayed throughout the document – is recognition of the financial resources needed to support these changes. Over the past 30 years direct federal support for clean water programs has been steadily reduced, and grant funding replaced with loans. It is no secret that the current financial picture for most states is bleak, at best. A federal financial commitment to clean water must be made part of this conversation.

    EPA needs to actively and directly engage in the heavy lifting that will be required to address our current water quality challenges, rather than the current role critiquing state efforts with little in the way of direct support. EPA has increasingly assumed the role of parent, as opposed to partner, in its relationship with the states. Where are the state partners in language like “EPA will bring violators into compliance”? Examples of places where EPA could make specific, meaningful commitments are as follows:

    As part of the “Key EPA Actions”, under the heading “Know What You’ve Got” add:
    • Take the lead in defining a standard, scientifically-robust suite of metrics that can be used to assess progress in addressing non-point source pollution

    As part of the “Key EPA Actions”, under the heading “Keep it Clean” add:
    • Task the Office of Research and Development with conducting the research/studies necessary to develop a comprehensive, integrated, national approach to identifying, measuring and reducing non-point sources of pollution.
    • Ensure coordinated federal action, through agencies including USDA, FHWA, USFS, USFWS, FEMA, and ACOE, to emphasize the protection of water resources in all aspects of federal government operation

    As part of the “Key EPA Actions,” under the heading “Build for the future” add:
    • Work with States to reformulate the CWSRF to better support clean water needs that extend well beyond traditional point sources.

    Thank you for the opportunity to review and comment.

    Justin Johnson, Commissioner
    Vermont Department of Environmental Conservation

  7. September 17, 2010

    The New York City Department of Environmental Protection (DEP) participated in the April 2010 “Coming Together for Clean Water” conference and appreciates the opportunity to comment on the U.S. Environmental Protection Agency’s (EPA) proposed strategy (“Clean Water Strategy” or “CWS”). DEP notes that the CWS is nearly contemporaneous with EPA’s overall strategic planning effort as well as proposed changes to Water Quality Standard regulations and Municipal Separately Sewered Stormwater System (MS4) regulations. DEP has recently submitted comments on those efforts and encourage the EPA to integrate its many ongoing efforts.

    By way of background, DEP is responsible for providing clean drinking water and wastewater services to over 9 million New Yorkers (8.4 million in the City and a million more in Putnam, Rockland, Ulster, and Westchester Counties). The City is currently in the midst of an unprecedented period of investment to improve water quality in New York Harbor; $6 billion of projects have been completed or are under way since 2002 alone, including wet weather expansion at our wastewater treatment plants, aggressive nutrient removal, billions of gallons of combined sewer overflow (CSO) capture, marshland restoration in Jamaica Bay, and hundreds of other projects. As a result of this work, New York Harbor is healthier than it has been at any time in the last 100 years and more of New York Harbor is available for recreation, and all of the other use goals set out in the Clean Water Act, than ever before.

    Our recent successes are significant milestones in the effort to continuously improve water quality, but they have come at a very substantial cost to New Yorkers. Since 2002 alone, water rates have increased by 124%, in large part to fund federally and state mandated projects. In the last four fiscal years, rates have had to increase by double digits every year—including during the last two years of national financial crisis when many New Yorkers have struggled to make ends meet. And while the Clean Water Act establishes as national policy that Federal financial assistance be provided to build public wastewater treatment infrastructure; of the $6.3 billion New York City has spent on water quality projects since 2002, only $41 million (0.64%) has been paid for with federal grants. This trend must be reversed if WQS regulations are to be changed in any way that would impose additional financial burdens on service providers and local residents. Regardless of fiscal impact, any proposed changes should be supported by rigorous scientific analysis, as well as analysis of the costs and benefits of potential changes based on the specific and unique circumstances of the localities like New York City. For too long, Clean Water Act obligations have been met almost exclusively by urban residents and publicly owned treatment works, while other sectors such as agriculture and exurban development remain almost completely unregulated despite their substantial discharges.

    In addition, the EPA should consider a full range of regulatory and non-regulatory approaches to water quality. It is critical for the EPA to support locally-generated, innovate, sustainable approaches to water quality such as Mayor Bloomberg’s PlaNYC. In the water quality sector, one lesson is that it is easier to recognize the value in green infrastructure that serves many purposes than infrastructure that serves a single-purpose. In the 21st century, the greatest environmental risk is from climate change, and the best low carbon solution that we have discovered are dense settlements and walkable cities. But we will only be able to make cities a better place to live if we link together many disciplines and mobilize civic engagement. The EPA should consider carefully the effect of its regulatory approaches and top-down mandates on innovation and morale, and should examine whether and how to revive other approaches, such as the Section 208 watershed planning program.

    With those observations in mind, DEP strongly supports many principles of the Clean Water Strategy. These include:

    • The adoption of a “sustainable approach to meet our economic needs and improve the quality of the nation’s water for generations to come.” (CWS at 1) and focus on “the most critical stressors, sources, and threats” (CWS at 2);
    • The use of green infrastructure to meet regulatory obligations (CWS at 8 and other places);
    • Developing locally-based partnerships and relying upon them to create and implement workable strategies (CWS at 2, 4, 9);
    • Recognizing the need to “explore opportunities to better integrate other sustainable practices into our policies and programs; for instance: energy-neutral wastewater treatment, water efficiency, energy efficiency, and water reuse.” (CWS at 3), which should be expanded to balance the tradeoffs between stringent effluent standards and energy use;
    • Exploring “bold, new, creative, more effective ways to implement [Clean Water Act] and other programs . . . [including] voluntary approaches and market-based incentives” (same); and
    • EPA’s commitment to make a “substantial shift in [] programmatic approaches to identify and implement multi-benefit solutions that will help communities plan and be more responsive to changing factors such as population growth, increased urbanization and climate change.” (CWS at 8).
    • EPA’s focus on watershed-based planning (CWS at 1 and throughout).
    As mentioned in comments on proposed changes to the Water Quality Standard regulation submitted today, DEP cannot endorse some elements of the Clean Water Strategy. These include:
    • The apparent endorsement of the “fishable/swimmable” subgoal in the Clean Water Act (CWS at 2) without recognition of the fact that Congress included a significant qualifier – that such uses be “attainable” – and that Congress also promoted other recreational uses such as boating that can be more compatible with urban waterways. In addition, the EPA should recognize the many causes of impairment that are separate from ongoing municipal discharges (i.e., historically contaminated sediments and shoreline alterations) and the many competing uses for urban waterways (i.e., shipping channels and maritime industries);
    • The CWS does not reflect the fact that water quality measures are more important to public health where receiving waters are ultimately used as a drinking water supply for downstream users, and that in other cities, including those that discharge to marine estuaries, there is much less of a risk to public health; and
    • The EPA’s suggestion that it will regulate based on the fact that “pollutants have been detected” in sediments without reference to harm to public health or the environment.

    DEP looks forward to working with the EPA over the coming year to translate these generally-worded principles into actions that can produce significant, cost-effective, and broad-ranging benefits to all citizens.

    Carter H. Strickland, Jr.
    Deputy Commissioner for Sustainability
    New York City Department of Environmental Protection

  8. September 17, 2010

    September 17, 2010

    Subject: Comments on “Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water” (Public Discussion Draft – August 2010)

    The National Association of Conservation Districts (NACD) represents 3,000 local conservation districts across the country and on the Pacific Islands. These districts are local units of government established under state law to carry out natural resource management programs at the local level. Seventeen-thousand officials committed to conservation serve on their governing boards. Conservation districts work with private landowners and local communities to carry out conservation programs, including some Clean Water Act programs administered by the Environmental Protection Agency (EPA).

    NACD is a strong supporter of the Clean Water Act (CWA), and believes in the importance of enhancing and protecting the integrity of our nation’s waters. Conservation districts across the country work to improve and protect this priceless resource through several CWA authorities, including Section 319 nonpoint source grants, stormwater permits and source water/drinking water protection. Districts work with state and local governments, agricultural producers, forest landowners, homeowners, and developers to address local water resource concerns and protect our streams, rivers, and lakes.

    As conservationists, we fully support the common goal of cleaner, healthier watersheds across the nation, including in the Chesapeake Bay.

    We support efforts to improve and protect the Chesapeake Bay watershed while maintaining the economic viability of farms, ranches and local communities. Producers have already implemented many environmental best management practices and will continue to do their fair share to protect and preserve the Bay. To encourage additional best management practices, these efforts should be voluntary, locally-led, and incentive-based. With 70 percent of the land in the U.S. in private hands, it’s vital that we encourage and incentivize private-land conservation to meet national clean water goals.

    Conservation districts are working diligently to help achieve restoration of the Chesapeake Bay. As an important part of the conservation delivery system, districts are committed to making a difference in the watershed. With 121 conservation districts covering the Chesapeake Bay watershed, our ability to work with landowners and local communities to implement conservation practices and address both rural and urban nonpoint source issues is unrivaled.

    However, we are concerned by the EPA’s top-down, regulatory approach, and oppose counter-productive regulatory restrictions that would not only limit opportunities for agriculture operations, but threaten to put many of them out of business. Further, it’s troubling that EPA plans to use the Chesapeake Bay watershed as “a model for watershed protection in other parts of the country.” This is not a strategy that should be applied nationwide. A one-size fits all approach is not the appropriate way to address watershed issues at the regional and local levels.

    It is important that EPA gives locally-led efforts an opportunity to succeed. EPA’s focus should be on providing the resources and tools — including financial and technical assistance– needed for state and local clean water efforts to succeed. We encourage EPA to work collaboratively with local communities and stakeholders to address local water quality concerns instead of solely relying on regulatory and enforcement tools.

    We are also concerned by language in the strategy that EPA “will support legislation and consider administrative action to restore the CWA protections to wetlands and headwater streams that provide clean water for human and ecological uses.”

    NACD opposes current legislative proposals seeking to change the wording of the CWA from “navigable waters” to “waters of the United States.” We are concerned by these attempts to eliminate the important leadership role currently played by states and local government in water management. NACD stands ready to assist landowners and state and local governments in addressing local water resource concerns.

    The most effective administration of the CWA rests with a strong federal-state partnership. All entities–local, state, federal, and private landowners–must be completely engaged if we are to succeed in the important mission of keeping our waters clean. States can most effectively accomplish this task by managing waters wholly within their borders.

    The EPA, through administrative action, should not expand the jurisdictional reach of the CWA, and NACD opposes any efforts to remove the term “navigable waters” from the CWA and replace it with “waters of the United States.”

    As a nation we need to be fully committed to providing the necessary tools and assistance to landowners and local communities to achieve clean water goals. This investment—along with appropriate conservation incentives—will provide for the implementation of conservation strategies and make the necessary changes to the landscape to accomplish these vital goals.
    NACD and districts look forward to continuing to work with landowners, state and local partners, and federal agencies to achieve the important public benefits of clean water and healthy watersheds.

    Steve Robinson
    President
    National Association of Conservation Districts

  9. September 17, 2010

    Comments regarding the EPA’s Strategy for Achieving Clean Water “Coming Together for Clean Water”.

    1) EPA VISION:
    The Clean Water Act (CWA) set a “vision” for all water of the United States be fishable and swimmable. While this is a “vision” a practical approach of prioritizing watershed issues needs to occur where performance, cost, and risks are balanced. It has already been proven that since 1972, the list has changed (mostly because of changing regulations) and the list of impaired waters has increased –not declined. While the “vision” is for “all water”, the reality is that lines will need to be drawn on what is physically and financially doable. Affordability is an issue. Also, with any vision, specific targets and achievable goals need to be set and a structure needs to be in place to measure the results in terms of performance (healthy waters), cost and risk.

    2) EPA ROLES:
    The 21st Century Water Challenges are very complex and the EPA is stretched in its roles as national strategist, permit issuer, compliance enforcer and now the group organizer (“It is up to the EPA to bring these groups together to more coordinate and harmonize our efforts…”). These roles, as important as they are, do seem contradictory and as a result the EPA will need to work extra hard and in a new collaborative way to win the trust and acceptance of the people. The EPA traditionally has not been able to effectively work at the grass-roots level. Deploying regulatory authorities and enforcement programs while expanding local partnerships requires common ground, vision, and the ability to communicate goals and document agreed upon plans and report measurable results on an ongoing basis.

    3) THE EPA REQUIREMENT TO DOCUMENT MEASURABLE RESULTS:
    The EPA should adopt a similar documentation and reporting methodology as exercised by many communities and utilities across the nation. Utilities in particular understand the issues of balancing priorities between performance, cost, and risk. The Aging Water Infrastructure (AWI) issue http://www.awwa.org/publications/AWWAJournalArticle.cfm?itemnumber=54277
    is a perfect example of how the water industry is developing a comprehensive game plan which includes condition assessment and asset management while monitoring local affordability concerns. The EPA needs to further engage a broad range of stakeholders from multiple disciples and provide the public with understandable and reliable information.
    The EPA’s public opinion report card concerning “clean water success” will be based on the effectiveness of their public outreach and communication efforts. The perspectives of the stakeholders are important in the development of any outreach program.

    4) ASSET-CENTRIC APPROACH.
    The EPA should adopt an “ASSET-CENTRIC” approach to the overall monitoring and reporting structure. Communities have the responsibility to maintain their infrastructure (waterways, property, wildlife, hard assets) in a cost-effective manner necessary to provide sustainable services to their citizens. The EPA already knows all about Asset Management programs that are defined as managing assets to minimize the total cost of owning, operating and maintaining the assets at acceptable levels of service.

    Under the “Coming Together for Clean Water” theme, an ENVIRONMENTAL ENTERPRISE ASSET MANAGEMENT (EEAM) strategy should be applied which encompasses and recognizes the interdependencies of maintenance, operations, compliance, permits, asset (watershed) performance, personnel productivity and life cycle costs. When a community accepts that all assets are central to its business purpose and realizes these assets require geographical location, graphical representation, interconnectivity, and proximity (what is around –above and below) data, the community becomes a GIS-CENTRIC organization. GIS is widely used and accepted by municipalities which makes it the obvious mission critical tool with its powerful geodatabase and becomes the best place for cataloging and maintaining an inventory of all environmental watershed assets.

    5) GIS IS THE ASSET REGISTRY.
    GIS can and should be the common element in a national strategy to include all stakeholders. The EPA should help communities further develop a GIS-Centric approach to create a common and new single regulatory source of all assets. GIS is not just for making maps, but the advanced data structure functionally proves critical as the asset data management master repository. Therefore, the best approach is to make GIS the Asset Registry. The Asset Registry is central to any asset management program or strategy.

    A National Watershed Asset Registry (NWAR) would include an environmental watershed kingdom of data layers including atmosphere, topography, hydrology, fauna, fowls, wild life, aquatic life, waters, soil, geology, and man-made infrastructure –ALL AS ASSETS.

    6) GIS-CENTRIC ENIVIRONMENTAL ASSET MANAGEMENT SYSTEM.
    The EPA defines EAM “Enterprise Asset Management” as the joining of two critical components; 1) a Computerized Maintenance Management System (CMMS) where the focus in on maintenance work orders and maintenance performance and 2) the Asset Registry where the focus is on an asset’s performance over its life cycle and on the aggregate performance of asset groups. Therefore, the logical next step is to have a shared and common CMMS with permitting, licensing, cost tracking, preventative and predictive maintenance and work history associated with any type of EVIRONMENTAL ASSET by watershed.

    The GIS-Centric approach allows for the condition of all environmental assets to be monitored and reported with work performed and costs. The combined GIS/CMMS functionality with a single asset registry creates both transparency and reliability without the duplication of other database efforts.

    7) COMMUNICATION AND COMMON REPORTING IS CRITICAL.
    A GIS-Centric Environmental Enterprise Asset Management strategy will offer the EPA and all levels of governments, special districts, green organizations, environmental groups, industries and utilities the ability to view and discuss achievable priorities while balancing performance (regulatory compliance), costs (affordability), and risks. Common reporting and further analysis can be accomplished with analytical tools. Reports on current and changing conditions by jurisdictions within watersheds can be communicated. The National Aquatic Resource Surveys providing the baseline condition of waters can be attached to assets and asset groups.

    This GIS-CENTRIC approach meets the EPA’s need to communicate and review with partners the strategic information based on Integrated Water Quality Monitoring and Assessment Reports. The new Healthy Watershed Initiative with a common set of comprehensive metrics to create a list of healthy watersheds by linking protection and species diversity can also be accomplished and communicated effectively. Priorities can be set and implemented and be understandable by local communities in this common format. Funding can be allocated based on priorities –not manipulated by politics, while balancing local affordability concerns.

    Water usage, conservation, reuse, smart grid, smart metering and monitoring, water quality inspections, water/sewer/storm/reuse, user and developer fees, land-use planning, storm drain run off, urban revitalization, protected districts, climate change, green infrastructure, energy requirements, carbon emissions, drought, all can be managed in a sustainable manner through a common GIS-Centric Environmental Enterprise Asset Management strategy.
    8) If the EPA promotes an Enterprise Asset Management approach for lowering future costs, justifying full cost pricing, improving operational efficiency and making better investment decisions for the utilities and other multi-sector areas such as transportation, then the EPA should leverage these programs, knowledge and themes into its own realm of accountability and responsibility for Clean Water as a key action item.

  10. September 17, 2010

    The National Association of Manufacturers (Manufacturers) welcomes the opportunity to comment on the Environmental Protection Agency’s (EPA’s) Strategy for Achieving Clean Water. Manufacturers are the largest industrial trade association in the United States, representing over 11,000 small, medium and large manufacturers in all 50 states. Manufacturers are the leading voice in Washington, DC for the manufacturing economy, which provides millions of high wage jobs in the United States and generates more than $1.6 trillion in GDP. In addition, two-thirds of our members are small businesses, which serve as the engine for job growth.

    The Manufacturers’ mission is to enhance the competitiveness of manufacturers and improve American living standards by shaping a legislative and regulatory environment conducive to U.S. economic growth. While we support environmental regulations designed to provide real net benefits to the environment and public health, we consistently oppose regulations that create adverse economic impacts and that are not in compliance with the underlying law.

    As context for these comments, it is important to consider that manufacturers are attempting to fully recover from the steepest economic downturn since the 1930s and bring back the 2.2 million high-wage jobs lost in recent years. At the same time, our member companies are confronting an avalanche of additional rules and regulations from EPA that contribute to a very high level of permitting uncertainty and stranded investment.

    As the EPA contemplates changes to the water quality standards, the Manufacturers urge federal policy makers to not stifle innovation and creativity which is necessary for the creation of jobs and technologies that will continue to improve the nation’s water quality.

    The Manufacturers offer the following comments on EPA’s water strategy:
    • Manufacturers have played an important role in improving the nation’s water quality. Many of our member companies implement Environmental Management Systems that reduce water consumption and remove pollutants from wastewater above and beyond what is required by federal law.

    • Manufacturers are strongly opposed to any legislative efforts to expand the Clean Water Act’s (CWA) regulatory reach to “all intrastate” and “intermittent” waters. It is contrary to the legislative intent of the CWA to permit EPA to regulate farm ponds, storm water retention basins, roadside ditches, streets and gutters.

    • Given the current economic climate, EPA should carefully analyze the potential costs and benefits associated with promulgating more stringent Total Maximum Daily Loads (TMDLs) for certain pollutants. Manufacturers urge effective management of nonpoint sources of water pollution through state and regionally developed programs, taking into account regional differences. The EPA should provide technical and funding assistance, but should not assume the role of developing a uniform federal nonpoint program.

    In closing, the Manufacturers support EPA’s efforts to draw national attention toward more sustainable water management practices that improve water quantity and quality, save energy and reduce carbon emissions. This should be done, however, in a manner that takes into account all economic and scientific factors to ensure a transparent and comprehensive process.

    The Manufacturers look forward to working with you further as you develop your water strategy.

    Keith W. McCoy
    Vice President, Energy & Resources Policy
    National Association of Manufacturers

  11. September 17, 2010

    The Clean Water America Alliance (Alliance) commends EPA’s commitment to working with all clean water stakeholders to develop a strategy for achieving clean water and for recognizing the need for a revitalized approach to get there. EPA’s effort to manage water quality issues on a watershed basis is a step in the right direction and the Alliance looks forward to working with EPA to advance many of the goals outlined in this report.

    As the agency knows, one of the biggest challenges to managing water quality on a watershed basis is that political boundaries and watersheds usually don’t coincide. EPA will have to play a big role in designing and enforcing agreements among jurisdictions. It is not only planning that will need to serve as the solution; EPA also needs to develop integrated monitoring, permitting and enforcement on a watershed basis.

    The Alliance applauds EPA moving towards integrating green infrastructure to help meet water quality standards. As the agency knows, green infrastructure not only helps improve water quality and reduce the economic and environmental costs of stormwater runoff – but helps improve communities and create healthier living environments. Green infrastructure does need a regulatory basis to provide certainty for those adopting its use. Since green infrastructure involves natural systems, such regulations need to take the inherent variability of such systems into account. The Alliance strongly recommends EPA move forward with its first action item on page eight – to develop new regulations that support green infrastructure, not hinder it.

    Although EPA’s effort to address non-point source pollution through local-state initiatives and partnerships is admirable – it is important for us as a nation to move forward towards a new national water policy that addresses both point and non-point source pollution. Although EPA commits to increased coordination with stakeholders to address the numerous clean water challenges identified in the report, no definition of who these groups are or how greater coordination will be achieved is explained. EPA should explain how it plans to better collaborate with stakeholder groups, including agriculture and energy interests. Only by working together with big water users will we be able to accurately address water quantity challenges that are affecting our national waters.

    Furthermore, in discussing the need for greater coordination among stakeholder groups – EPA does not go far enough in the importance of greater collaboration among the compartmentalized federal agencies with jurisdiction over water resources. Today, a myriad of often disparate state approaches as well as federal laws and regulations exist, many of which treat the same resource differently, and some of which are in conflict with each other. EPA should include in this report a strategy to addressing the silos so ingrained in our water resource management practices in order to address present and future water quality challenges.

    Finally, the Alliance believes that how water is valued has been overlooked in this report, both in terms of its cost and its intrinsic worth to human survival, economic growth, and ecosystem health. How water is valued serves as a basis upon which local communities, state governments, and this nation make water resource management decisions and investments. The Alliance believes we need a deliberate shift in how water is valued in this country as an artificially low price for water is frequently an impediment to understanding its full value and hence its wise use. This is a strategy the EPA should consider for long-term water quality improvements.

    Eli Weissman
    Executive Vice President, Operations
    Clean Water America Alliance

  12. September 17, 2010

    The Water and Wastewater Equipment Manufacturers Association (WWEMA) appreciates the opportunity to comment on the draft Clean Water Strategy and applauds EPA for taking a more holistic approach toward protecting our nation’s water resources. The following comments are brief summations of two of several position papers WWEMA has published that have relevance to the draft strategy. We would be happy to provide the agency with copies of these and other WWEMA position papers upon request, and stand ready to provide our technical expertise in the implementation of this strategy for achieving clean water.

    1. Technology Development (p. 9):

    We concur that introducing new technologies to the U.S. water and wastewater treatment market has always been challenging, with unclear requirements for permitting of new technologies at the state level, bidding restrictions that eliminate unproven technologies at the local level, and selection criteria based on lowest capital expenditure rather than life-cycle cost, thereby discriminating against advanced technologies that are often higher capex but lower life-cycle cost.

    EPA can play an important role in advancing technology first and foremost by promulgating performance-based standards – establishing the bar against which a technology’s performance can be evaluated – and enforcing compliance on a uniform basis, thus providing predictability in the marketplace needed by technology developers to make the necessary R&D investments.

    To provide the best return on EPA’s investment in funding university research on the application of advanced technologies, the private sector (technology developers) should be a partner in these initiatives and life-cycle cost assessments should be a component of any research project to ensure that research is focused on providing practical solutions in a realistic timeframe to solve the water quality problems the industry is facing. The same principle should apply to any demonstration projects that EPA and the states are engaged in.

    Where EPA-sponsored field demonstrations are completed, this should exempt or significantly minimize technologies from requiring further acceptance testing at the state level. EPA could also provide guidance to the states in the granting of SRF assistance to give favorable consideration to projects utilizing technologies that offer the lowest life-cycle costs. The SRF program has proven to be a highly-successful mechanism for providing affordable and reliable assistance to communities and should be funded to the maximum extent possible by EPA.

    2. Nutrient Control (p. 7):

    Nutrient pollution representing one of the most significant impairments to water quality, yet progress among the states to adopt numeric nutrient standards has been severely lacking (for a better term). This has led to a very fragmented and diverse spectrum of standards from the unaffordable, to the unachievable, to the immeasurable. Another area of concern is the apparent lack of balance in attention to point vs. non-point discharge.

    It is apparent that EPA must be involved at both the national and state level by establishing a base set of nutrient standards that all our waterways should be held to, and then focus on a more personalized approach to our most impaired waterways, applying limited resources where they are most needed and avoiding state bias for waterways encompassing several states. The question has to be asked: What is more beneficial, a 0.5 mg/l phosphorous level in the majority of the country at affordable prices, or a 0.1 or 0.05 mg/l level at unaffordable prices, across a state or region, with very little implementation and years of debate? Once some form of base level standards are agreed to and implemented, the consistency of measurement and the expectation of enforcement will give technology developers a baseline to innovate, and allow an increased speed to market with new and improved technologies. Ultimately these market forces will drive affordability, as mass production would come at a much quicker pace.

    WWEMA members are positioned to provide realistic advice and direction to the discussion of numeric nutrient standards for point and non-point source discharges. Our members are experts on the capabilities of technologies and on the measurement of the systems. WWEMA members working in conjunction with the EPA and the engineering community could deliver mechanical and biological expertise to help develop a set of numeric nutrient standards that are achievable, measurable, and fiscally reasonable.

    Thank you for this opportunity to offer our views.

    Dawn Kristof Champney
    President
    Water and Wastewater Equipment Manufacturers Association

  13. September 17, 2010

    The Association of California Water Agencies (ACWA) appreciates this opportunity to comment on the U.S. EPA’s Draft Clean Water Strategy which seeks to reinvigorate “EPA’s approaches to achieving clean water in America”. Our comments are provided recognizing that ACWA’s over 450 water providers continue to remain strongly committed to carrying out the mission of the Clean Water Act.

    Since the Clean Water Act was enacted in 1972, significant progress has been made in addressing water quality concerns in the United States. This progress is not fully recognized in the Draft Clean Water Strategy. In evaluating the Draft Strategy’s objectives, it is important to note ACWA members have and are continuing to spend hundreds of millions of dollars to ensure that their customers have safe, high quality water whether for human consumption, or business/agricultural use. Water managers in California are constantly designing their operations to reduce adverse impacts upon the environment. In some cases, the complexities associated with the water quality issues raised in the Draft Strategy exceed current scientific understanding and technological capabilities.

    It is crucial for USEPA to recognize, upfront, the magnitude of costs associated with achieving many of the recently adopted and proposed water quality standards. Many of those standards are at levels that, in the past were not even thought to be achievable, much less affordable. Today, many water quality standards are defined in parts per billion and in some cases, parts per trillion. In this context, we strongly encourage USEPA to re-focus the Draft Strategy on the promotion of incentive-based partnerships that encourage cooperation in terms of research, funding and implementation.

    As currently drafted, the Draft Strategy is too regulatory/enforcement centric and short on funding details. It states “EPA must improve and adapt regulations, permitting and compliance/enforcement efforts as a key first step to change our current path…increase the regulatory universe, and set performance standards through robust modifications to current regulations”. An overemphasis on expanding regulations raises the negative potential for California’s water community of broad and costly regulatory impacts, such as massive permitting delays, increased project costs, and arbitrary mitigation requirements. More careful consideration should be given throughout the Draft Strategy to helping increase the ability of the local water providers to provide essential services to their constituents- including drinking water and recycled water delivery and wastewater treatment without unnecessary obstacles.

    Unfortunately, the Strategy’s enforcement proposals will continue EPA’s current pattern of producing indiscriminate and scattered results. A better approach would be fixing 303d to move “results-driven” compliance to the forefront. EPA needs a more robust process that prioritizes watersheds and works the enforcement policies on the watersheds that fall to the bottom

    ACWA has formally adopted policy principles embracing environmental and economic sustainability as co-equal priorities for water management in California. ACWA suggests the Strategy be refined to embrace these co-equal goals that are now the basis of California water law. Unfortunately, the Strategy provides minimal focus on embracing economic sustainability as co-equal to the goal of environmental sustainability.

    A copy of the ACWA Sustainability principles is available here: http://www.acwa.com/sites/default/files/post/delta/2010/02/sustainability_principles.pdf

    ACWA is pleased that the Draft Strategy includes key messages similar to ACWA’s Sustainability and Water Conservation/Use-Efficiency principles. Proactive approaches that should be given more prominence in the Draft Strategy include: 1) provide incentives, such as conservation credit programs or pricing mechanisms, or model practices, that will be far more effective and permanent than those based on the enforcement of mandates; 2) create partnerships as opposed to adversaries; 3) is performance based as opposed to “top-down” operational constraints; (4) identifies real priorities based on opportunities for most significant gains; and (5) coordinates with other federal agencies (e.g. NRCS) to better leverage limited federal, state, local and private resources.

    A copy of the ACWA Water Conservation and Water Use Efficiency principles is available here: http://www.acwa.com/sites/default/files/post/conservation/2010/02/acwawaterconservationwuepolicyprinciples03-2009.pdf

    ACWA is concerned that EPA equates the Draft Strategy’s goals with legislative proposals to restore/expand CWA jurisdictions. ACWA is supportive of clearing up issues associated with the SWANCC and Rapanos cases but feels strongly EPA should not use the Draft Strategy to justify a regulatory approach to expand the scope of the CWA’s jurisdiction beyond the regulatory jurisdiction that existed prior to SWANCC and Rapanos.

    Lastly, the Draft Strategy needs to more clearly state EPA recognizes the needs of western water systems are very different from east coast ones. For example, while certain protection strategies may be appropriate for the Chesapeake Bay they should not be automatically assumed to be beneficial for California’s Bay Delta.

    Respectfully submitted,

    Mark Rentz
    Director of Regulatory Affairs
    Association of California Water Agencies

  14. September 17, 2010

    Comments regarding the EPA’s Strategy for Achieving Clean Water “Coming Together for Clean Water”.
    1) EPA VISION:
    The Clean Water Act (CWA) set a “vision” for all water of the United States be fishable and swimmable. While this is a “vision” a practical approach of prioritizing watershed issues needs to occur where performance, cost, and risks are balanced. It has already been proven that since 1972, the list has changed (mostly because of changing regulations) and the list of impaired waters has increased –not declined. While the “vision” is for “all water”, the reality is that lines will need to be drawn on what is physically and financially doable. Affordability is an issue. Also, with any vision, specific targets and achievable goals need to be set and a structure needs to be in place to measure the results in terms of performance (healthy waters), cost and risk.
    2) EPA ROLES:
    The 21st Century Water Challenges are very complex and the EPA is stretched in its roles as national strategist, permit issuer, compliance enforcer and now the group organizer (“It is up to the EPA to bring these groups together to more coordinate and harmonize our efforts…”). These roles, as important as they are, do seem contradictory and as a result the EPA will need to work extra hard and in a new collaborative way to win the trust and acceptance of the people. The EPA traditionally has not been able to effectively work at the grass-roots level. Deploying regulatory authorities and enforcement programs while expanding local partnerships requires common ground, vision, and the ability to communicate goals and document agreed upon plans and report measurable results on an ongoing basis.
    3) THE EPA REQUIREMENT TO DOCUMENT MEASURABLE RESULTS:
    The EPA should adopt a similar documentation and reporting methodology as exercised by many communities and utilities across the nation. Utilities in particular understand the issues of balancing priorities between performance, cost, and risk. The Aging Water Infrastructure (AWI) issue http://www.awwa.org/publications/AWWAJournalArticle.cfm?itemnumber=54277
    is a perfect example of how the water industry is developing a comprehensive game plan which includes condition assessment and asset management while monitoring local affordability concerns. The EPA needs to further engage a broad range of stakeholders from multiple disciples and provide the public with understandable and reliable information. The EPA’s public opinion report card concerning “clean water success” will be based on the effectiveness of their public outreach and communication efforts. The perspectives of the stakeholders are important in the development of any outreach program. http://katzandassociates.com/opinion-research.html

    4) ASSET-CENTRIC APPROACH.
    The EPA should adopt an “ASSET-CENTRIC” approach to the overall monitoring and reporting structure. Communities have the responsibility to maintain their infrastructure (waterways, property, wildlife, hard assets) in a cost-effective manner necessary to provide sustainable services to their citizens. The EPA already knows all about Asset Management programs that are defined as managing assets to minimize the total cost of owning, operating and maintaining the assets at acceptable levels of service.

    Under the “Coming Together for Clean Water” theme, an ENVIRONMENTAL ENTERPRISE ASSET MANAGEMENT (EEAM) strategy should be applied which encompasses and recognizes the interdependencies of maintenance, operations, compliance, permits, asset (watershed) performance, personnel productivity and life cycle costs. When a community accepts that all assets are central to its business purpose and realizes these assets require geographical location, graphical representation, interconnectivity, and proximity data (what is around –above and below) – the community becomes a GIS-CENTRIC organization.

    ESRI GIS is the most widely used and accepted GIS by municipalities which makes it the obvious mission critical tool with its powerful geodatabase and becomes the best place for cataloging and maintaining an inventory of all environmental watershed assets. http://www.cityworks.com/media/inprint/InPrintJuly10.pdf

    5) GIS IS THE ASSET REGISTRY.
    GIS can and should be the common element in a national strategy to include all stakeholders. The EPA should help communities further develop a GIS-Centric approach to create a common and new single regulatory source of all assets. GIS is not just for making maps, but the advanced data structure functionally proves critical as the asset data management master repository. Therefore, the best approach is to make GIS the Asset Registry. The Asset Registry is central to any asset management program or strategy.

    A National Watershed Asset Registry (NWAR) would include an environmental watershed kingdom of data layers including atmosphere, topography, hydrology, fauna, fowls, wild life, aquatic life, waters, soil, geology, and man-made infrastructure –ALL AS ASSETS.

    6) GIS-CENTRIC ENIVIRONMENTAL ASSET MANAGEMENT SYSTEM.
    The EPA defines EAM “Enterprise Asset Management” as the joining of two critical components; 1) a Computerized Maintenance Management System (CMMS) where the focus in on maintenance work orders and maintenance performance and 2) the Asset Registry where the focus is on an asset’s performance over its life cycle and on the aggregate performance of asset groups. Therefore, the logical next step is to have a shared and common CMMS with permitting, licensing, cost tracking, preventative and predictive maintenance and work history associated with any type of EVIRONMENTAL ASSET by watershed.

    The GIS-Centric approach allows for the condition of all environmental assets to be monitored and reported with work performed and costs. The combined GIS/CMMS functionality with a single asset registry creates both transparency and reliability without the duplication of other database efforts.

    7) COMMUNICATION AND COMMON REPORTING IS CRITICAL.
    A GIS-Centric Environmental Enterprise Asset Management strategy will offer the EPA and all levels of governments, special districts, green organizations, environmental groups, industries and utilities the ability to view and discuss achievable priorities while balancing performance (regulatory compliance), costs (affordability), and risks. Common reporting and further analysis can be accomplished with analytical tools. Reports on current and changing conditions by jurisdictions within watersheds can be communicated. The National Aquatic Resource Surveys providing the baseline condition of waters can be attached to assets and asset groups. This GIS-CENTRIC approach meets the EPA’s need to communicate and review with partners the strategic information based on Integrated Water Quality Monitoring and Assessment Reports. The new Healthy Watershed Initiative with a common set of comprehensive metrics to create a list of healthy watersheds by linking protection and species diversity can also be accomplished and communicated effectively. Priorities can be set and implemented and be understandable by local communities in this common format. Funding can be allocated based on priorities –not manipulated by politics, while balancing local affordability concerns.
    Water usage, conservation, reuse, smart grid, smart metering and monitoring, water quality inspections, water/sewer/storm/reuse, user and developer fees, land-use planning, storm drain run off, urban revitalization, protected districts, climate change, green infrastructure, energy requirements, carbon emissions, drought, all can be managed in a sustainable manner through a common GIS-Centric Environmental Enterprise Asset Management strategy.
    8) If the EPA promotes an Enterprise Asset Management approach for lowering future costs, justifying full cost pricing, improving operational efficiency and making better investment decisions for the utilities and other multi-sector areas such as transportation, then the EPA should leverage these programs, knowledge and themes into its own realm of accountability and responsibility for Clean Water as a key action item.

  15. September 17, 2010

    The Water Environment Federation (WEF) is pleased for the opportunity to submit comment on EPA’s Draft Clean Water Strategy. Formed in 1928, WEF is a not-for-profit technical and educational organization with 36,000 individual members and 75 affiliated Member Associations representing water quality professionals around the world. WEF and its Member Associations proudly work to achieve our mission of preserving and enhancing the global water environment.

    WEF fully supports the Administrator Jackson’s vision to “see a huge leap forward in water quality as we saw in the 1970’s” and many of the paths required to reach this goal. Several goals and proposed actions outlined in the Strategy are in agreement with current WEF policy and position statements, which are highlighted below. Strategy goals that are inconsistent with WEF positions are also listed below along with comments to explain differences and possible manners to bridge these gaps.

    General comments include:

    •WEF understands that this strategy works within the existing Clean Water Act (CWA) framework. However, in its current form, the Clean Water Act is unable to affect significant further advances, nationally, in water quality improvement. This is evidenced by a suite of recent assessments that indicate water quality improvement has plateaued in spite of the current level of public and private resources devoted to water quality and ongoing federal and state program delivery. WEF has called for the CWA to be modernized to include the new tools and policies necessary to assure water quality will improve in all US waters [see WEF CWA Modernization position statement at http://www.wef.org.

    •While the listing of principles and actions in the strategy are informative, more specific information on these points would be beneficial and could provide more insight into implementation of the overall strategy. Assigning a general timeline for each goal along with estimates of staffing and budget needs would provide context for realistically seeing this strategy through to completion.

    Specific comments are listed below:

    Item 1.

    Section Titled Strategies to Achieve Clean Water Goals – Page 4. “Systematically assess the nation’s waters to provide a baseline for transparently tracking progress”.

    WEF Comment: WEF supports this goal and EPA efforts to address water quality issues and concerns in the U.S. Also, WEF continues to support the USGS National Water Quality Assessment Program (NAWQA) including holding briefings on important water quality topics on Capitol Hill in an effort to disseminate important scientific information to Senate/House staff as well as raise the awareness of water quality impacts on the Nation’s water in a general sense. WEF encourages EPA to fully coordinate its assessment activities with USGS/NAWQA.

    Item 2.

    Section Titled Key Actions for Strengthening Water Protections – Page 4. “Use bold, new, creative, more effective ways to implement CWA and other programs, more strategically deploy existing regulatory authorities and enforcement programs, as well as voluntary approaches and market-based incentives”

    WEF Comment: As previously mentioned, WEF believes that the CWA is no longer effective at making major gains in water quality improvement across the Nation. The WEF position statement titled, Clean Water Act Modernization, states that “the Clean Water Act must be updated to incorporate the tools and policies to assure that necessary water quality improvements will occur in all US waters… the overarching principal for a revised Clean Water Act should be employment of a holistic approach to water quality management that integrates water quality and quantity and the benefits provided to the environment, community and economy”.

    Item 3.

    Section Titled Fix What’s Broken – Enhance EPA’s Ability to Restore Degraded Waters, Restore Ecosystems, and Take Action to Increase the Number of Restored Waterbodies – Page 6. Key EPA Actions: (first and second bullets) “Work with states to carry out…TMDL pollution reduction plans and watershed-based nonpoint source plans,” and, “Develop…assurance guidelines regarding non-point source reductions identified in TMDLs”

    WEF Comment: WEF supports the TMDL process to identify all sources of key pollutants within targeted watersheds. Towards this end, WEF will host a conference on Impaired Waters in early 2011 to provide a forum to exchange ideas and information on this topic to further the technical aspects of this field.

    Item 4.

    Section Titled Fix What’s Broken – Enhance EPA’s Ability to Restore Degraded Waters, Restore Ecosystems, and Take Action to Increase the Number of Restored Waterbodies – Page 6. Key EPA Actions: (fourth bullet) “Use trading offsets and other market-based tools where appropriate, to improve cost-effective clean up of impaired waters.”

    WEF Comment: WEF supports market-based solutions, such as water quality trading and offsets, to improve impacted waters and ecosystems in an economically efficient manner. This is especially important considering the current national economic environment.

    Item 5.

    Section Titled Keep it Clean – Reduce Pollution Entering Our Waters – Page 7. Key EPA Actions: (second bullet) “Develop requirements for POTWs to protect the public and the environment from the harmful effects of sanitary sewer overflows and the release of partially treated wastewater from treatment facilities.”

    WEF Comment: WEF has developed numerous publications on wet weather issues and has worked closely with EPA staff on these issues. WEF recently developed an updated position statement on this topic (see http://www.wef.org) and commented on recent rule-making efforts by EPA on SSOs and wet weather issues. Please see the position statement titled, “Management of Wet Weather Flows by Municipal Utilities” at http://www.wef.org for more detailed information on this.

    Item 6.

    Section Titled Keep it Clean – Reduce Pollution Entering Our Waters – Page 7. Key EPA Actions: (third bullet) “Expand municipal stormwater permitting coverage to currently unregulated areas and establish performance standards for stormwater discharges from newly developed and redeveloped sites that result in reduced discharge of pollutants, including through the use of green infrastructure techniques.”

    WEF Comment: While WEF believes that stormwater discharges should be treated and permitted consistent with current regulatory requirements, WEF cautions that expansions of permitting coverage should be done with financial sustainability in mind. The gap in funding to address the Nation’s aging water infrastructure has been well-documented. Additional regulatory demands to address water quality needs will further exacerbate this growing gap in funding. Increases in the State Revolving Fund (SRF) and other Federal funding sources are encouraged in order to meet this growing need to capture and treat stormwater runoff.

    Item 7.

    Section Titled Build for the Future – Enhance Watershed Resiliency and Revitalize Communities – Page 8. Key EPA Actions: (first bullet) “Promote green infrastructure more broadly.”

    WEF Comment: WEF fully supports the promotion of green infrastructure to address surface water quality and quantity issues. This growing technology is envisioned as a tool to address urban stormwater problems as well as reduce the number of CSO’s that occur across the Country. Other benefits include a reduction in the urban heat island effect and landscape aesthetics.

    Item 8.

    Section Titled Build for the Future – Enhance Watershed Resiliency and Revitalize Communities – Page 9. Key EPA Actions: (fourth bullet) “Develop policies that will facilitate greater collaboration and accelerate the commercialization of cutting-edge technologies that help deliver clean water such as energy self-sufficient wastewater treatment.”

    WEF Comment: WEF supports the promotion of sustainable water technologies. This support is expressed through the hosting of events and development of publication on topics such as co-digestion and combined heat/power wastewater plant operations.

    Item 9.

    Section Titled Build for the Future – Enhance Watershed Resiliency and Revitalize Communities – Page 9. Key EPA Actions: (fifth bullet) “Develop comprehensive approaches…to help transform previously degraded urban waters…”

    WEF Comment: WEF supports the enhancement of urban waters. This support is expressed by the work WEF has done with EPA’s Office of Water to develop the Cities of the Future Conference held in March of 2010. WEF has also been working to promote the EPA’s Urban Waters Initiative, which strives to improve water quality for urban waterbodies and enhance the urban water environment.

  16. September 17, 2010

    CropLife America (CLA) is pleased to offer these comments on the Environmental Protection Agency’s (EPA) “Strategy for Achieving Clean Water.” CLA and its member companies share EPA’s focus on healthy watersheds and sustainable communities, a key part of which includes the effective control of insect pests, disease vectors, plant diseases, destructive weeds, and invasive species with properly-used, EPA-regulated pest control products. CLA member companies produce essentially all of the pest control products used for crop production, forest protection, control of invasive species, protection of parks and gardens, and control of disease-carrying mosquitoes, ticks and other pests.

    Comment 1: “Changing Clean Water Challenges:” EPA’s Strategy highlights many of the stressors of water quality and aquatic habitat, and how these have changed since the Clean Water Act (CWA) was enacted in 1972. This was to be expected, for the US population grew by almost a third during that time, grew from 210 million to 310 million people (US Census). Now more than 80% of Americans live in cities and suburbs (Wikipedia). Many Americans also prefer to live near waterbodies, bringing their environmental impacts ever closer to rivers, lakes, bays, wetlands and oceans. During that same period of time, the number of farmers and farms in America dramatically declined. When the CWA was enacted, one farmer fed about 30 people; today one farmer feeds about 130 people (National Cattlemen’s Beef Association). While EPA’s strategy clearly identifies many of the ways urban life contributes to water quality degradation, it also identifies agriculture as a key contributor. Agriculture recognizes it faces a constant challenge to protect the environment while remaining highly efficient and productive in a globally competitive market. That’s why farmers are doing something about it — such as using precision plant nutrition and pest control practices and tools to produce more food with fewer inputs. Farmers also use conservation tillage on more than 100 million acres and reduced-tillage practices on another 72 million acres of farmland to reduce soil erosion; maintain over 1.3 million acres of grass waterways to allow water to flow naturally from crops without eroding soil; and utilize contour farming around hillsides on 26 million acres to limit erosion (American Farm Bureau Federation). During the past 12 years, nearly 1.3 million acres of wetlands have been restored across the US in the Wetlands Reserve Program (US Department of Agriculture – Natural Resource Conservation Service). While the numbers of farms and farmers continue to decline, agriculture still contributes to sustainable communities by employing 20 percent of America’s workforce, providing a paycheck to more than 21 million people (AFBF). The jobs responsible for producing tractors and other farming equipment, seed, feed, fertilizer, crop protection products, expert consulting, and other farming inputs are important to the economics of cities and towns across the country. CLA urges EPA to recognize agriculture as a powerful and essential ally in its Clean Water Strategy efforts to protect healthy watersheds and sustainable communities.

    Comment 2: “A New Path to Clean Water:” In the Strategy, EPA supports legislation and administrative actions to “restore CWA protections to wetlands and headwater streams.” This is problematic, for Congress and the Supreme Court twice have opined on the intended scope of the CWA. In an April 30, 2010 letter to Rep. James Oberstar, Administrator Jackson expressed strong support for his legislation, HR 5088, stating that the legislation would “restore the jurisdiction of the CWA to its historic scope.” We respectfully disagree. CLA is a member of the Waters Advocacy Coalition (WAC), which is convinced that HR 5088 would broaden the jurisdictional scope of the CWA far beyond the historic intent established by Congress in 1972. First, deletion of the term “navigable” from the statute would, for the first time, remove the historic tether of where federal jurisdiction ends and state jurisdiction begins. Second, when Congress enacted the CWA, it asserted its authority to regulate navigable waters based on the Commerce Clause. That is why the current regulations tie the scope of federal jurisdiction to waters that affect commerce. Because HR 5088 invokes the Treaty and Property Clauses, in addition to the Commerce Clause, it expands jurisdiction beyond the current and historic scope of the CWA. Third, unlike the existing CWA and implementing regulations, HR 5088 would expend CWA jurisdiction to cover “international waters” and “adjacent waters.” US law does not apply extraterritorially. Moreover, the current law regulates adjacent wetlands, not adjacent waters. Indeed, court cases have addressed this issue and have held that regulations implementing the CWA do not apply to waters based on their adjacency. Thus, defining “waters of the US” to include adjacent waters would be an expansion of current law.

    Comment 3: “Systematically Assess the Nation’s Waters:” EPA proposes to partner with state and regional monitoring and assessment programs to benchmark streams, lakes and coastal waters to better identify, classify, and track the status of our waters in coming years. EPA will develop tools to conduct ecological assessments, to classify and list healthy watersheds, and then, along with state partners, take action to protect them. EPA intends to develop comprehensive metrics to create a national list of healthy watersheds; use the latest state-of-the-art, peer-reviewed methods to conduct assessments to identify healthy watersheds; and help states set priorities for protection and conservation programs. CLA strongly supports the use of sound science and peer-reviewed methods, yet is concerned with the notion of developing “comprehensive metrics” for classification of “healthy” and “unhealthy” watersheds. If the metrics would also be intended to identify Section 303(d) “impaired” waters, then linkages to CWA Total Maximum Daily Loads and enforcement mechanisms would come into play. Surely, such metrics and their use could not be determined easily, and at the very least, warrant public involvement, notice, and comment.

    Comment 4: Develop Pesticide National Pollutant Discharge Elimination System (NPDES) Permit Requirements: One of EPA’s key actions includes the completion of its NPDES pesticide general permit (PGP) for pesticides discharged into or over, including near, waters of the US. CLA has previously commented on the proposed PGP. The PGP will add unnecessary performance, recordkeeping and reporting requirements to an estimated 1.5 million pesticide applications per year, affecting state agencies; city and county municipalities; parks and recreation managers; utility rights-of-way managers, railroads, roads and highway vegetation managers; mosquito control districts, water districts and managers of canals and other water conveyances; pesticide applicators; forest managers; scientists; and potentially farmers and ranchers. EPA’s pesticide registration process and product labeling requirements are based on sound science and peer-reviewed methods, while the new PGP requirements will create significant delays, costs, reporting burdens and legal risks from citizen suits for permit holders without enhancing the environmental protections provided by compliance with the federal product label requirements.

    Comment 5: Preventing the Spread of Invasive Species: CLA agrees with EPA that invasive plant and animal species are a significant threat to aquatic ecosystems. We urge EPA to align its efforts to address invasive species with the pesticide re-registration process, so as to make certain that water managers continue to have a wide range of effective tools available.

  17. September 17, 2010

    Re: Comments on Coming Together for Clean Water:
    EPA’s Strategy for Achieving Clean Water, Public Discussion Draft – August 2010

    I am a recently retired state water quality program manager who, during my 21 years in public service with the Arizona Department of Environmental Quality, was responsible for managing the water quality standards, water quality assessment, and surface water monitoring programs at the state level. I read the public discussion draft, Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water-August 2010 with great interest. In general, I found the public discussion draft document to be long on rhetoric, full of generalities and vague promises to focus on problems and take unspecified actions, work with partners, or utilize a range of unidentified tools to achieve the goals of the Clean Water Act. What I didn’t find was a real strategy when I read the draft document. A strategy is a plan, methods or a series of steps to be taken to achieve stated goals and objectives or to obtain a desired result. The public discussion draft does not contain a strategy because there are no plans. There are few specifics, timelines, or recommendations for clean water programs or water quality management program initiatives for achieve the goal of clean water.

    Know What You’ve Got –
    EPA’s Strategy for Systematic Assessment of the Nation’s Waters

    The draft strategy document states that EPA will “focus” on systematically assessing the Nation’s waters over the next several years. EPA’s primary focus in this section of the public discussion draft document appears to be on the completion of the National Aquatic Resource Surveys for streams, lakes and coastal waters. EPA asserts that it will complete the first set of National Aquatic Resource Surveys but is silent on how EPA plans to achieve the goal of systematic national assessments after the first set of nationwide statistical surveys is completed. Unfortunately, there’s no strategy here for achieving the stated objective of systematic assessment of the Nation’s waters. EPA’s “strategy” appears to consist of: 1) working with EPA’s existing partners, and 2) exploring opportunities to build on existing monitoring and assessment programs. “Focusing,” “working with partners” and “exploring opportunities” does not demonstrate strategic thinking on EPA’s part. It’s really nothing more than rhetoric that I’ve heard before in previous strategy documents . I don’t think EPA provides much strategic direction and, frankly, I don’t think anything will be accomplished by promises to partner and build on existing programs.

    If EPA’s strategic objective is to achieve systematic national assessments of the Nation’s waters, then EPA should state how it plans to achieve that goal in the document. If EPA’s focus is completion of national surveys like EPA’s National Coastal Assessment, Wadeable Streams Assessment, National Lakes Survey, or the yet to be completed rivers and wetlands assessments, then EPA should articulate a plan for completing the national surveys in a timely manner, both in the first and in future assessment cycles. EPA is well aware of the challenges and obstacles of completing the national surveys with federal / state / tribal partnerships. How does EPA intend to complete statistical surveys of the Nation’s waters with existing federal and state monitoring and assessment program resources? Who will design the statistical surveys? Who will obtain the data? Who will do the data analysis? Will EPA devote additional federal resources to the design and implementation of national statistical surveys? Will EPA partner with the U.S. Geological Survey or other federal agencies or will EPA continue to rely on the participation of state and tribal monitoring programs to implement the surveys? If the latter, how will EPA fund and build state and tribal capacity to do the necessary work? Many state monitoring and assessment programs are significantly under-resourced and they currently function with skeleton staffing levels and insufficient levels of funding to meet their current obligations under the Clean Water Act. If EPA’s only strategy is to work with its state and tribal partners and explore opportunities to build on existing monitoring & assessment programs, then it is unlikely that the goal of systematic national assessments of the nation’s waters will be achieved.

    Protect What You Have – Increased Focus on Protection of Healthy Waters

    The draft strategy document states that EPA will “utilize a range of tools” to protect healthy waters and their watersheds. The range of tools includes new ecological assessment tools to identify and classify healthy waters and watersheds, revisions to water quality standards regulations to strengthen and clarify antidegradation provisions for the protection of high quality waters, and a renewed focus on protecting waters threatened by coal and hard rock mining activities.

    EPA is considering the creation of a new national list of healthy watersheds. EPA says that it will develop ecological assessment tools and standardized metrics for identifying and classifying healthy watersheds which EPA then plans “to make available” to state and tribal partners. EPA hopes to provide these tools to States and Tribes so they can inventory healthy waters and watersheds within their borders, presumably to populate the new national list that EPA wants to create. One can always hope. I think I can speak for many state and tribal water quality program managers who work for and share EPA’s goals of maintaining and protecting healthy watersheds. Many managers may see the utility of identifying health watersheds and would even agree with the idea of creating a national list of healthy watersheds provided the purposes behind the creation of the national list are clearly understood and states and tribes are provided with the regulatory authority and additional resources to implement programs to conserve and protect the healthy watersheds that are identified. Thankfully, the draft public discussion document does not say that EPA plans to mandate that states and tribes conduct inventories of healthy watersheds within their jurisdictions. EPA should not create an unfunded (or underfunded) mandate on state or tribal water quality assessment programs that are already overburdened by current reporting requirements under §305(b) and §303(d) of the Clean Water Act. EPA says in the draft discussion document that it intends to use CWA §604(b), §319 and §106 funds for the healthy watershed initiative. Will EPA also seek corresponding increases in federal funding to state and tribal water quality management programs under these CWA provisions or will EPA simply re-allocate current funding to accomplish the proposed healthy watersheds initiative?

    EPA Support for Restoration of the Clean Water Act

    One of the key EPA actions “to protect what we have” is for EPA to “support legislation and consider administrative action” to restore Clean Water Act protections for the nation’s waters. Clean water activists around the country are familiar with and support recent Congressional efforts to restore the Clean Water Act and to undo the damage caused by recent U.S. Supreme Court decisions (SWANNC & Rapanos cases) . These Supreme Court decisions have weakened the Clean Water Act by unnecessarily restricting the historically broad scope of Clean Water Act protections. There is no discussion in the document of EPA’s legislative strategy to restore the traditional scope of protections afforded by the Clean Water Act other than to say EPA “supports” such legislation. This element of the final strategy document should be strengthened and EPA needs to take a much more assertive role on Capitol Hill with regard to Clean Water Act Restoration. If EPA truly supports legislation to restore the traditional scope of the Clean Water Act, then EPA should take a strong position in support of America’s Commitment to the Clean Water Act legislation introduced in Congress in April 2010 and lobby for its passage this year.

    The draft strategy document further states that EPA will “consider” administrative action to restore Clean Water Act protections but doesn’t explain what those administrative actions are. In other words, EPA’s strategy is: “We’ll think about it.” Future consideration of administrative action to restore Clean Water Act protections isn’t a strategy. What administrative action is EPA considering? Is EPA considering changes to the definition of “waters of the United States” at 40 CFR §122.2 to further clarify CWA jurisdictional issues? Promulgating new guidance? Just saying that EPA will “consider” administrative action to restore Clean Water Act protections doesn’t say much of anything.

    Destruction and Degradation of High Quality Waters by Mining Activities

    EPA includes a bullet in the “protecting what we have” section of the draft discussion document which is intended to address the issue of destruction of the nation’s waters from mining activities. The entirety of the EPA strategy is contained in a single sentence stating that EPA will “[u]se the full suite of CWA tools to protect high-quality streams from destruction and degradation caused by mining activities.” This vague, one-sentence statement of strategy is essentially meaningless. Instead of vague generalities about using the “full suite of CWA tools” it would be better if EPA outlined a real strategy for addressing the destruction of streams and watersheds from specific coal or hard rock mining activities.

    For example, it would be preferable for EPA to outline a strategy for stopping the destruction of streams in Appalachia by prohibiting mountaintop removal and valley fills associated with coal mining. As EPA is well aware, mountaintop removal mining in Appalachia destroys headwater streams and watersheds, causes severe water pollution and flooding, and has the potential for causing serious, adverse human health effects. There is general consensus that current attempts to regulate water pollution from mountaintop removal mining operations are inadequate and that stronger federal regulations are needed immediately to prevent further destruction and to protect water quality. Mountaintop removal mining and valley fills are destroying mountain streams in Appalachia. EPA should devise a strategy that has as its ultimate goal a prohibition on the dumping of mine wastes in streams. As an interim step, EPA should consider re-instituting the moratorium imposed by the Obama administration on the issuance of new mountaintop removal mining permits until EPA can promulgate more stringent, more protective federal regulations to protect public health and the environment. EPA should not issue new NPDES or §404 permits for mountaintop mining operations until permittees provide peer-reviewed scientific evidence demonstrating that it is possible to prevent the stream destruction and to reduce and minimize public health and environmental risks that are occurring with current mining practices. As part an overall strategy, EPA also should develop plans for more robust enforcement of NPDES and §404 permit requirements for existing mountaintop removal mining operations and find the resources for adequate inspections and effective enforcement action against violators of permit conditions.
    EPA also should develop a strategy for effective regulation of hard rock mining activities to protect clean water. As part of the strategy, EPA should support major reform of the General Mining Law of 1872, the archaic law that governs hard rock mining in the United States now. The General Mining Law of 1872 allows hard rock mining to wreak havoc on Western watersheds, wildlife and landscapes because it does not contain environmental protections. According to EPA’s own estimates, mining has polluted 40 percent of the headwaters of Western watersheds. To address the issues of environmental degradation and water pollution caused by hard rock mining, House Natural Resources Committee Chairman Nick Rahall (D-WV) and Subcommittee on Energy and Mineral Resources Chairman Costa (D-CA) introduced the Hardrock Mining and Reclamation Act of 2007, HR 2262. This 2007 legislation was intended to protect special places from irresponsible mining practices and to establish environmental standards specifically for hardrock mining.
    The Hardrock Mining and Reclamation Act of 2007 would have increased the acreage of public lands that are “off limits” to mineral exploration and development, including wilderness study area, lands recommended for wilderness designation, areas of critical environmental concern, and waters included or recommended for inclusion in the national Wild & Scenic River system. HR 2262 also would have established new environmental standards specifically for hard rock mining, including requirements for adequate mine reclamation, fish and wildlife protection, re-vegetation, surface and ground water protections, and specific requirements that hard rock mining operations meet water quality standards after mining operations cease. The legislation would have created a dedicated federal funding source to address the problem of abandoned mines and money to clean up them up and reclaim the public lands. Finally the Hardrock Mining and Reclamation Act of 2007 would have substantially strengthened enforcement authorities with penalties of up to $50,000 / day for violations and citizen suit authority to enforce the requirements of the Act. As part of a real strategy, EPA should support legislation similar to HR 2262 and re-energize efforts to reform the General Mining Law of 1872.
    EPA could accelerate the rate of clean-up of watersheds affected by abandoned hard rock mines by pursuing full funding for the Inderdepartmental Abandoned Mine Lands Watershed Initiative described in the Clean Water Action Plan: Restoring and Protecting America’s Waters, published in 1998 during the Clinton administration. There are other steps that EPA could take in a more comprehensive strategy to prevent the destruction and degradation of high quality waters from mining activities. Saying only that EPA will use the “full suite of CWA tools” to address the significant environmental degradation caused by hard rock mining activities doesn’t say much at all and can’t be considered a serious attempt at developing an effective strategy to address the problem.
    Antidegradation Implementation

    In the “Protect What You Have” section of public discussion document, EPA lists two key EPA actions relating to antidegradation that EPA says it will take to focus on the protection of healthy waters. The first key action states that EPA will propose amendments to the federal Water Quality Standards to clarify and strengthen antidegradation protections for high quality waters (i.e., Tier 2 waters). Second, EPA says it will take steps to ensure that EPA and delegated states apply antidegradation requirements effectively in the NPDES permit program.

    Clarification of requirements for antidegradation implementation procedures, either in the federal Water Quality Standards Regulation or in EPA guidance, is needed and long overdue. State environmental protection departments have been the laboratories for the development of antidegradation implementation procedures. Most states have developed antidegradation policies that mimic or closely parallel the three-tiered antidegradation regulation prescribed in 40 CFR §131.12 and they have adopted those policies in their state-adopted water quality standards regulations. By contrast, there is little federal guidance on antidegradation implementation procedures or how states and tribes are to determine, on a case-by-case basis, whether and to what extent water quality may be lowered. State antidegradation implementation policies and procedures are subject to review by EPA, but the scope of EPA review is limited to reviewing state-adopted policies to determine whether the basic elements of the federal antidegradation policy at 40 CFR §131.12 are addressed. EPA review of state-adopted implementation procedures is limited to ensuring that procedures are included that describe how the state will implement the required elements of an antidegradation review. EPA may disapprove and federally promulgate all or part of an implementation procedures if, in EPA’s judgment, the implementation procedures “can be implemented in such a way as to circumvent the intent and purpose of the antidegradation policy.” This standard for EPA review is far too broad and does not give states and tribes who are doing the hard work of coming up with antidegradation implementation procedures enough guidance as to what may be approved or disapproved by EPA. There is a real need for better EPA guidance on a host of antidegradation issues: economic tests, significance tests, the limits of temporary changes of water quality in Tier 3 waters, how to conduct an antidegradation review in NPDES permits on a pollutant-by-pollutant basis, etc. Better and more practical guidance from EPA Headquarters on antidegradation would be a big help to states and tribes that are struggling to understand and develop EPA-approvable antidegradation implementation procedures.

    Fix What’s Broken – Enhance EPA’s Ability to Restore Degraded Waters and Ecosystems and Take Action to Increase the Number of Restored Waterbodies

    EPA proposes to use the Chesapeake Bay as the model for the way forward to “fix what’s broken,” with the Clean Water Act, to restore degraded waters and to make better progress through the TMDL program. Again, the key EPA actions in this section are platitudes that consist, for the most part, of aspirational goal statements. (e.g., “work with states to carry out more strategic and implementation of TMDL…and watershed-based nonpoint source plans.”) or non-specific, conditional promises to implement existing programs more effectively (e.g., “coordinate funding opportunities with USDA…”; “develop and implement reasonable assurance guidelines….”; “use trading offsets and other market-based tools where appropriate…”; “implement federal land management practices…”; “ implement current regulations for concentrated animal feeding operations…”; implement improvements to the current stormwater program…” I suppose it’s a strategy to say we can fix what’s broken by doing a better job with our existing programs, but I don’t think that approach will produce much in the way of water quality progress.

    EPA faces a number of difficult challenges to achieve more effective implementation of the TMDL program, especially in the nonpoint source arena. To improve the TMDL program, to move beyond what often becomes a “bean-counting” exercise, and to achieve real improvements in water quality, EPA must conduct a top to bottom re-evaluation of the TMDL program and develop a strategy to improve it.. I recommend that EPA seriously consider the analyses and recommendations made in two fairly recent evaluations of the TMDL program. The first evaluation report was conducted by EPA Office of Inspector General and is titled “Total Maximum Daily Load Program Needs Better Data and Measures to Demonstrate Environmental Results, Report No. 2007-P-00036 (September 19, 2007). The second is a report from the National Research Council, titled Assessing the TMDL Approach to Water Quality Management,.” Committee to Assess the Scientific Basis of the Total Maximum Daily Load Approach to Water Pollution Reduction, Water Science and Technology Board, Division of Earth and Life Studies, National Research Council, National Academy Press, 2001. In the latter report, the authors made two recommendations: 1) EPA should act (via administrative rule) to incorporate elements of adaptive implementation into TMDL guidelines and regulations, and 2) If Congress and EPA want to improve the scienfific basis of the TMDL program, then the policy barriers that currently inhibit adoption of an adaptive implementation approach to the TMDL program should be addressed.

    I would add a third recommendation to any EPA strategy to ‘to fix what’s broken” and to restore impaired water bodies. Most of the water quality problems in the nation’s waters are attributable to nonpoint sources of pollution. If EPA wants to address these NPS problems, then EPA must move beyond the current non-regulatory approach contained in the Clean Water Act. I agree with Charles Logue’s comments re: fundamentally re-structuring the approach to addressing nonpoint source pollution in the Clean Water Act. The voluntary use of best management practices and the continued use of carrots will only get us so far in addressing nopoint source of pollution.. EPA needs to figure out some sticks to address agricultural and urban runoff to make progress in the future.

  18. September 17, 2010

    I represent the Elko County Association of Realtor’s based out of Elko, Nevada. We are an organization 92 members strong who work with buyers and sellers of Real Estate who are effected by the EPA actions of EPA dealing enforcement of the Clean Water Act (CWA). We are certainly concerned with keeping our waters clean and as unpolluted as possible and practical.

    We understand this Strategy “COMING TOGETHER FOR CLEAN WATER: EPA’S STRATEGY FOR ACHIEVING CLEAN WATER” pertains to the Clean Water Restoration Act and other similar legislative efforts and we are supportive of clearing up issues associated with the SWANCC and Rapanos cases, but EPA should not use this proposed Strategy to expand CWA controls beyond what states have traditionally considered waters of the United States subject to CWA controls. Nevada in particular has little water that runs out of our state and in particular into Navigable rivers or their tributaries. Most domestic water for our towns and cities is pumped from underground aquifers rather than taken from rivers and streams although Las Vegas and Reno do use some surface water for domestic purposes. We feel that the draft strategy is too vague, and contains many undefined words such as “holistic,” “synergistic” and “green infrastructure” which reflects a broad concept but fails to provide clear actions to form a strategy. When Waters of the United States is used we would like it to be more defined. We don’t expect that you are talking about most of the waters we deal with in Nevada as they are certainly not considered to be waters under the control of the Federal government but rather the State of Nevada. We are also concerned that EPA’s future actions are likely to result in significant additional costs for struggling industries, states, and municipalities who are already in financial trouble.

    We are concerned about others comments that would change the definition of “fill” to exclude mining. Nevada’s mines are strictly monitored to make sure they are not dumping contaminants into streams and water systems and unlike the Eastern States we don’t have much rain and surface water which would make it harder to contain the contaminants. Please don’t make changes that effect all mines when our local enviornment is very different when you look at regions of the United States.

    We feel it is important for any future actions of EPA to enforce the CWA considers:

    -that any future action is based on defensible science that is not being debated among scientists

    -that the strategy is cost effective and economically attainable.

    -that the strategy doesn’t replace a responsibility that a State EPA’s department is already involved with and is responsible for.

    -that recognizes water quality conditions vary widely among the states, and states require flexibility in addressing those problems they find most pressing. Strategies also must be flexible to address states’ unique concerns in a realistic and predictable manner.

    Thank you for the opportunity to comment on this document .

  19. September 17, 2010

    Comments from The Nature Conservancy on
    “Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water”
    September 17, 2010

    The Nature Conservancy (TNC) welcomes the opportunity to comment on “Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water.” The Conservancy supports the goals and comprehensive approach set forth in the strategy. We applaud the Agency’s initiative to “catalyze a leap forward in water quality improvement nationally.” Such a strategic planning exercise is timely and necessary, given the sobering statistics on the continued decline of aquatic ecosystems.

    We are glad to see EPA’s focus on healthy watersheds. This focus on protecting healthy watersheds and restoring those which are impaired brings a much needed multi-discipline and multi-objective approach to watershed and water management. The recognition that the quality of our waters, our fish and wildlife, our communities and our economy depend not just on the quality of the water, but how we live on and use the land and water is an important step to achieving our national, state and local goals.

    TNC generally supports the five strategies set forth by EPA. We view the many actions as broad statements of what EPA would like to do, though noting that the each action will require the resolution of many challenging issues. In this sense, we see the document as a statement of programmatic goals, as opposed to a more detailed strategic action plan.

    The Nature Conservancy would like to offer the following comments on the draft strategy document.

    (1) Our shared goals will only be achieved if we focus on a systems-based approach to the use and management of our freshwater and coastal systems. We have learned that focusing on water quality alone will not achieve our goals for “fishable and swimmable waters” and for ensuring the “chemical, physical, and biological integrity of the nation’s waters.” The Clean Water Strategy should be the first step toward to a more holistic and outcome-based management of water resources.

    Across TNC, we are finding there are at least three key elements to implementing a systems-based approach. The first is a focus on maintaining key physical and ecological processes. These key processes include:

    A. Hydrologic regimes
    B. Geomorphic processes
    C. Sediment and nutrient regimes
    D. Floodplain and river corridor processes
    E. Lateral and longitudinal connectivity
    F. Biotic interactions and other ecological processes
    G. Sequestration of carbon

    Freshwater and coastal systems are dynamic and they depend on this range of natural conditions to sustain and renew themselves. The move to focus on maintaining and restoring key physical and ecological processes will be advanced when these processes become key metrics for defining desired outcomes, assessing current conditions, and are the focus of our management and protection efforts. For coastal and freshwater systems this will mean focusing on maintaining key processes within some part of their natural range while we also meet human needs.

    The second key element for a systems-based approach is the need to focus on defining the ecological and social outcomes we hope to achieve. By focusing on maintaining these physical and ecological processes, in addition to water quality, we will help define appropriate and attainable ecological outcomes and help inform compatible human uses. With so many different federal, state and local programs focused on different aspects of our freshwater and coastal systems, it is often difficult for people to understand what we are trying to achieve and how close or far we are from achieving it.

    Specific, quantifiable ecological outcomes would help everyone to visual what success looks like and how we can best achieve these outcomes. Several states, including Ohio and Maine, are leading the way in developing biological criteria and defining biological and ecological goals that are helpful in defining success. In addition, on the Upper Mississippi River, the Army Corps of Engineers, EPA and other stakeholders are working to create bio-indicators that will meld data for various sources to come up with the best measure of successful outcomes.

    A third essential element is the development of tools and metrics to guide sustainable use of aquatic resources so that communities can grow and thrive with confidence that they are using these resources in a sustainable manner. For example, Michigan has recently implemented a web-based groundwater management system that helps people and business locate water uses in appropriate locations.

    TNC recommends that EPA’s Clean Water Strategy highlight these three elements (restoring and maintaining key processes, defining the ecological outcomes, and providing tools that allow compatible uses of the lands and waters). This whole system approach will help create shared goals across agencies, among communities, and within watersheds. It will foster the cooperation of the many jurisdictions and many people and entities that need to help ensure we have healthy watersheds, in support of EPA’s goal to “come together for clean water.”

    (2) While the inclusion of a healthy watersheds component is good and necessary, the strategy should not characterize the effort as merely a resource inventory and assessment (as valuable as that is). There is a growing recognition in government and the NGO community that there needs to be better program and funding balance between protection of clean water resources and remediation of impaired waters – that a “leap forward” in clean water must be less reactive to impairments as they arise and more proactive in defining strategies to sustain water resources for generations to come.

    TNC therefore recommends that the healthy watersheds approach be incorporated as an overarching priority in other parts of the EPA strategy, particularly with regard to achieving sustainable water resource management in large aquatic ecosystems like the Chesapeake Bay, the upper Mississippi River basin, the Great Lakes, and the Gulf of Mexico.

    (3) We applaud EPA’s acknowledgment of hydrologic alteration as a major stressor, but recommend that the clean water strategy place greater emphasis on actions to address hydrologic flow issues. Flow regime is widely recognized as the “master variable” controlling water quality, energy regime, physical habitat, biotic interactions, and ultimately, freshwater ecosystem health and integrity (Bunn and Arthington 2002, Karr 1991, Poff et al. 1997). Systematic assessment of the nation’s waters necessarily includes assessment of hydrologic alteration — quantifying the changes in water flows and levels that have occurred as a result of landscape and water resource development. The National Aquatic Resource Surveys, as valuable as they may be, do not provide a “complete picture” of water body conditions. Without addressing the extent to which water flows and levels have been altered from their natural condition, it is impossible to identify truly healthy watersheds and to set targets for full restoration of impaired watersheds.

    TNC recommends that hydrologic alteration be addressed in several places in the Clean Water Strategy.

    Hydrologic modeling has advanced to the point that flow alteration can be quantified. Potential collaborators such as the U.S. Geological Survey (USGS) and many state water management agencies and universities have the technical capacity to create such models. We believe that an essential tool to assess watershed health is the Ecological Limits of Hydrologic Alteration (ELOHA) framework (Poff et al. 2010), a scientific methodology for setting flow and water-level targets based on ecological responses to hydrologic alteration. This approach can readily account for relationships between water quality and quantity, as well. Importantly, ELOHA is designed to assess all water bodies within a large region such as a state or large watershed, providing a rapid, cost-effective alternative to site-specific assessments. Funding and support from EPA for this work should be an integral part of the Clean Water Strategy. Partnering with other Federal agencies such as USGS will help to leverage limited resources to assess flow alteration and quantify the water flows and levels needed to maintain or restore healthy watersheds. Furthermore, relevant databases of the various Federal agencies should be linked and mutually accessible.

    TNC also recommends that the “key EPA actions” for the Chesapeake Bay should address hydrologic alteration. In this vital watershed, the Susquehanna River Basin Commission, the Interstate Commission on the Potomac River Basin, and the State of Virginia are currently quantifying hydrologic alteration and the water flows and levels needed to maintain healthy watersheds. EPA should coordinate and extend these independent efforts to the entire Chesapeake Bay watershed, and thereby demonstrate robust integrated watershed management for the entire aquatic ecosystem.

    With regard to pollutant loadings, we caution EPA to discourage states and localities from artificially increasing flows to reduce pollutant concentrations, because the resulting flow alteration adversely impacts ecosystem health. EPA’s “key actions” for pollution reduction should therefore address the assessment and reduction of flow alteration. For example, performance standards for stormwater discharge should seek to reduce not only pollution, but also unnatural streamflow “flashiness” caused by discharging stormwater directly into surface waters without first infiltrating into soils and aquifers. Key actions should also include support for green infrastructure solutions that increase infiltration of stormwater runoff and thereby reduce hydrologic alteration.

    The Great Lakes Restoration Initiative sets an excellent precedent for EPA supporting the development of hydrologic modeling needed to assess and manage hydrologic alteration. Several Great Lakes states plan to use GLRI-funded USGS models for the implementation and enforcement of scientifically robust, biologically-based flow standards to protect their rivers and streams from excessive water withdrawals. Michigan’s recently established water withdrawal assessment program, the prototype for applying these models, has already won three national awards for innovative state management programs. TNC urges the Agency to maintain full funding for this important work.

    (4) We support EPA’s intent to capitalize on green infrastructure, water/energy synergies and integrated water management, and note that all of these benefit water quantity as well as water quality. Therefore, we encourage close coordination with other local, state, and federal agencies, particularly the Army Corps of Engineers and Bureau of Reclamation at the federal level.

    (5) We applaud the emphasis on bringing together government agencies at all levels to advance breakthrough clean water strategies. However, we also believe that there should be a stronger reference in the document to the need for partnerships with NGOS and corporate players as well, even as the Agency acts to enhance regulatory standards for business and industry. A “leap forward” in clean water requires innovative problem-solving by all relevant players, not just the regulators.
    ___________

    Bob Benson, Senior Advisor for Environmental Protection for The Nature Conservancy, will continue to be the point person for our joint work with EPA on the Healthy Watersheds Initiative. Please contact him with any questions about these comments. He can be reached at rbenson@tnc.org or 703-841-8789.

    Robert Bendick,
    Director of U.S. Government Relations,
    The Nature Conservancy
    (rbendick@tnc.org; 703-841-4582)

  20. September 17, 2010

    Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water

    Minnesota Center for Environmental Advocacy Comments – August 2010

    The Minnesota Center for Environmental Advocacy (“MCEA”) is a Minnesota-based non-profit environmental organization whose mission is to use law, science, and research to preserve and protect Minnesota’s natural resources, wildlife, and the health of its people. Much of MCEA’s work focuses on improving polluted waters and protecting Minnesota’s pristine water resources.

    MCEA appreciates the EPA’s commitment to enhancing the effectiveness of the Clean Water Act (“CWA”) by improving and adapting regulations, permitting, and compliance and enforcement efforts to improve water quality in the United States. The Clean Water Act and implementing regulations provide the foundation for ensuring that our wetlands, lakes, streams, and aquatic ecosystems are protected and restored.

    Using the CWA to “protect high-quality streams from destruction and degradation caused by mining activities” is a critical component of any effort by the EPA to protect and restore impacted waters. To ensure that streams and other waters and wetlands are protected against mining activities, the EPA must close two regulatory loopholes in the Clean Water Act that allow large mines to dump their tailings and other wastes directly into the country’s rivers, lakes, and wetlands without meeting the water quality standards required by the CWA. The practice of using rivers, lakes and wetlands as waste dumps by mining activities must be stopped.

    The first loophole is the result of the 2002 revision of the CWA regulations defining “fill.” Under the current definition, EPA and the Corps treat the discharge of tailings from hard rock mines and overburden as fill material subject to Section 404 rather than regulating these discharges as the disposal of industrial wastes. For hard rock mining, the practical implication of this regulatory change is that toxic mining wastes discharged into waters are no longer governed by the CWA program designed to regulate these discharges and are not subject to the strict pollution standards adopted by EPA in 1982. MCEA urges EPA and the Corps to revise their regulatory definitions of fill to exclude waste disposal.

    The second CWA loophole is found in EPA and Corps regulations that exclude “waste treatment systems” from the definition of “waters of the United States.” Mine developers, relying upon the waste treatment system exclusion, have obtained Section 404 permits authorizing them to build dams across the mouths of valleys. The mining company is then allowed to dump its wastes into the rivers, lakes, and wetlands behind the dam because they are considered part of a “waste treatment system” rather than “waters of the United States.” The use of this exclusion by mine developers has resulted in the wholesale destruction of these ecosystems and harmed the people, fish, and wildlife that depend upon them. EPA expressly limited the exclusion to manmade bodies of water in 1980. MCEA strongly encourages EPA and the Corps to close this loophole and bring consistency and clarity to the waste treatment system exclusion by revising their regulations to restore EPA’s 1980 clarification that the waste treatment system exclusion applies only to manmade bodies of water which were not created in waters of the United States or impoundments of these waters.

    To make full use of CWA tools to protect the health of the country’s waters, the EPA must ensure that hardrock mining activities are adequately regulated under the CWA and that the country’s waters will not continue to be burdened with a toxic legacy as a result of these mining activities.

  21. September 17, 2010

    Sierra Club is pleased to submit these comments on EPA’s August, 2010, “Coming Together for Clean Water” public discussion draft. Thank you for creating this draft strategy and for the opportunity to comment. Sierra Club strongly supports this opportunity to assess and discuss how we can work together to achieve clean water. The Sierra Club generally supports the draft EPA’s strategy but believes that it is not necessary to re-invent the wheel. The Clean Water Act has been the law of the land since 1972, and we are convinced that much of the lack of progress toward all of the goals of the CWA is a failure of implementation – not a failure of the law.

    This distinction between the clear vesting of authority and responsibility with the tools found in the law contrasted with the decades of failure to actually use the tools and authorities to meet the responsibilities has been recently described in some detail in the National Academy of Sciences report, “Mississippi River Water Quality and the Clean Water Act: Progress, Challenges and Opportunities.”

    Our comments highlight aspects of the draft strategy that we strongly support, identify aspects of the draft strategy that we think can be improved upon, and identify a few aspects of this draft – primarily omissions – that concern us.

    EPA should recommit to the original goals of the Clean Water Act – We have two related introductory concerns: the use of the term “vision” instead of the term actually used in the CWA – “goals” and the complete failure to affirm the Congressional goal of “zero discharge” of pollutants into the nation’s waters. .

    Nowhere does the draft strategy affirm the Congressional goal to eliminate the discharge of pollutants into the nation’s waters. Nowhere does the draft strategy reaffirm one of the basic CWA strategies of constantly improving effluent limits – the “technology forcing” aspects that were clearly part of the legislative history and the language of the CWA. We are also concerned that EPA appears to concede that water pollution will increase (see “EPA seeks to …by … preparing for substantial predicted increases associated with development…” on p. 7)

    By ignoring the language and the meaning of the law Congress enacted, the strategy could be interpreted as a weakening of EPA’s commitment important clean water goals. To avoid conveying that impression, we urge EPA to recommit to the Clean Water Act’s original goals

    Assess the nation’s waters to provide a baseline for progress –
    The Sierra Club strongly supports the investment to gather reliable water quality and water quantity data – from public sources, private sources and non-profit sources. Sierra Club’s volunteer water monitoring program, the Water Sentinels, contributes to our knowledge of water quality in many locations.

    We support the need to compile an identification of healthy watersheds to complement the existing listing of impaired waters, with the caveat discussed below under antidegradation that we often find water segments that are healthy in one or more respects but impaired in another respect.

    We believe that the CWA already provides authority for a new source of water quality data in the NPDES permitting process, as part of the antidegradation analysis and for CAFOs, stormwater construction permit holders, and entities seeking coverage under general permits.

    Restore Clean Water Act protections to wetlands and headwater streams –
    Sierra Club endorses EPA’s suggested action to support legislation and consider administrative action to restore Clean Water Act protections.

    Small streams and wetlands provide a host of essential ecological services, including natural flood control, groundwater recharge, trapping sediments and pollution from fertilizers, nutrient recycling, creating and maintaining biological diversity, and sustaining the biological productivity of downstream waters. In addition, about 117 million people get some or all of their drinking water from public water systems that depend at least in part on the health of headwater, intermittent or ephemeral streams.

    Unfortunately, the way in which the EPA and the Army Corps of Engineers have implemented Supreme Court’s SWANCC and Rapanos decisions could put an estimated 20 million acres of wetlands in the continental U.S. and as much as 59% of the nation’s streams at risk of losing Clean Water Act protections. In addition, as EPA documents show, the confusion created by the court decisions and guidance has hampered enforcement of the Clean Water Act, affecting more than 500 enforcement cases between July 2006 and December 2007. The EPA has also noted that sorting out jurisdiction saps the agency’s resources.

    The best solution to correct this confusion and prevent the loss of these vital resources would be for Congress to restore Clean Water Act jurisdiction to what it was prior to the SWANCC decision. We urge the EPA to continue to provide additional information to inform Congressional efforts to restore Clean Water Act protections. However, since Congress has so far failed to address this problem, EPA should take administrative action to restore historic Clean Water Act protections to the greatest extent allowed under the law.

    Clarify and strengthen antidegradation regulations –
    The Sierra Club strongly endorses this aspect of the draft strategy that would make the CWA antidegradation protection provisions clearer and stronger and make sure that these provisions are properly implemented. We were pleased with aspects of the antidegradation provisions in the Great Lakes Water Quality Initiative over a decade ago and welcome this new focus on antidegradation. We believe that the CWA will not succeed in achieving clean water until and unless this aspect of CWA implementation is addressed – and fixed.

    From our experience, states use three approaches to avoid proper implementation of the CWA antidegradation requirements:
    –Use of the “designational” approach to eliminate the essence of the 40 CFR 131.12 requirement (the Tier 2 alternatives analysis and the assurance of the use of the highest level of treatment);
    — Use of the “de minimis” exemption from such analysis; and,
    — Use of categorical exemptions from such analysis (such as Kentucky’s use of the Transportation Cabinet’s “Six Year Road Plan” as compliance with 40 CFR 131.12 for all road projects).

    We urge EPA to make clear that the CWA antidegradation protection requirement shall be implemented on a parameter-by-parameter basis – and that the “designational” or “waterbody” approach will no longer be accepted because in practice it has been shown to underprotect water segments entitled to antidegradation Tier 2 protection.

    We urge EPA to make clear the CWA antidegradation analysis called for at 40 CFR 131.12 should not be implemented in a way that increases the monitoring burden on the states. The in-stream water quality monitoring that must be part of a proper antidegradation analysis should be done by the entity that seeks a new or increased discharge of pollutants into our waters.

    Protect Water Quality From Mining and Drilling –
    We appreciate the steps that the EPA has taken to protect water quality from mining, particularly the most destructive form of mining, mountaintop mining. The enhanced environmental review process and the guidance that EPA issued in April to ensure Clean Water Act compliance are positive steps to reduce the damage from mountaintop removal.

    However, Sierra Club urges the EPA to make more fundamental and more permanent changes to protect water quality from mining by changing the definition of fill material. In 2002, contrary to the goals of the Clean Water Act, the Bush administration changed clean water rules to allow mining and other solid or semi-solid waste to be used as fill material. Not only have coal mining companies in Appalachia taken advantage of this rule change to dispose of their waste, burying an estimated 2,000 miles of streams, but a mining company in Alaska was permitted to fill a small lake with mining waste.

    The EPA should initiate a rulemaking to reverse the action taken during the Bush administration and make clear that EPA and the Corps of Engineers cannot issue permits under Section 404 to place waste in waters as fill material.

    A related concern is the exclusion in EPA and Corps rules of “waste treatment systems” from “waters of the U.S.” These rules effectively enable mining companies to create a dam in natural waters and dump their wastes. These waters are no longer considered “waters of the U.S.” This loophole has resulted in the destruction of streams and other natural waters. Sierra Club urges EPA and the Corps to clarify that the waste treatment exclusion applies only to man-made bodies of water that were not created out of waters of the U.S. or impoundments of waters of the U.S.

    We also support action to prevent pollution from natural gas drilling. The study of fracking, which is now underway, and EPA’s recent initiatives to find out what chemicals are used in fracking are good steps, While natural gas may offer a cleaner alternative to coal as an energy source, EPA and Congress should take action to prevent unacceptable water pollution problems and drinking water threats caused by drilling.

    Make TMDL provisions more effective –
    Sierra Club supports the EPA draft strategy provisions to make the CWA TMDL provisions more effective, including tracking and reporting on TMDL pollution reduction commitments and accomplishments.

    We fully support the emphasis on cleaning up the Chesapeake Bay but want to see equal emphasis on cleaning up the Great Lakes, the Mississippi River and the other important and impaired waterbodies across the nation.

    The Sierra Club opposes pollutant trading as a tool to comply with point source requirements. We have found few if any examples where this concept has improved water quality and we remain concerned that this concept is simply a distraction allowing discharge permit holders to postpone compliance with the CWA. We are particularly skeptical of proposals for trading between non-point and point sources of pollution and urge EPA not to promote such schemes. Although the concept of trading may appeal to economists, water quality results from such trading remain unproven.

    Improve regulation of CAFOs –
    We support full implementation of existing regulations and development of new and more effective regulations for CAFOs. The need for better regulation is not limited to the Chesapeake Bay. It must apply nationwide to prevent the CAFOs in Maryland and Delaware from simply moving to North Carolina or the Midwest.

    We support the recent (May 28, 2010) EPA guidance for CAFOs to help assess the probability that a CAFO will discharge as a step in the right direction, but not enough to solve the water quality problems of CAFOs. In addition, we urge EPA to make clear that wherever phosphorus is land-applied at rates that exceed crop needs for phosphorus, the agricultural stormwater exception (from the definition of a point source} does not apply, and that such facility is presumed to be a discharger into the waters of the United States.

    We urge EPA to adopt a presumptive approach so that number of animal units alone will establish the presumption of a discharge, as suggested in the Waterkeeper opinion.

    EPA must address nutrient pollution more effectively –
    Excessive nutrients are one of the nation’s most serious water pollution problems. Continued reliance upon narrative water quality standards to address nutrient pollution is not working. EPA first asked states to put numeric nutrient standards in place more than a decade ago. Few states have done so. Since the use of narrative standards has failed to stem nutrient pollution, EPA must use every available mechanism to compel states to establish numeric standards.

    We are disappointed that the draft strategy does not acknowledge the need to modernize the definition of Secondary Treatment to, among other things, limit the discharge of nutrients.

    Promote green infrastructure –
    We agree that increased use of green infrastructure techniques can help communities improve stormwater management by reducing polluted runoff and decreasing flows into overloaded wastewater systems. As climate change increases the frequency of heavy precipitation events, water quality will benefit from providing more natural infiltration opportunities. As outlined in its draft strategy, EPA should use a broad range of policies to both require and encourage greater use of green infrastructure.

    The Sierra Club supports the new emphasis on energy efficiency, carbon emissions, and the long overdue recognition of the need to address development and land use issues as a water quality and water quantity concern.

    Thank you for the opportunity to comment.
    Hank Graddy and Ed Hopkins

  22. September 17, 2010

    September 17, 2010

    The Honorable Pete Silva
    Assistant Administrator of Water
    United States Environmental Protection Agency
    Washington D.C.

    Re: CWN Comments on COMING TOGETHER FOR CLEAN WATER: EPA’s STRATEGY FOR ACHIEVING CLEAN WATER Public Discussion Draft – August 2010

    Dear Assistant Administrator Silva:

    On behalf of the Clean Water Network (CWN), the largest national coalition working to protect our nation’s waters, I am submitting comments on “Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water”, released August 2010. Numerous CWN members participated in the one-day EPA sponsored Summit the Agency held on April 15, 2010 to discuss the enormous challenges our country faces to ensure our rivers, streams, lakes, bays, coastal areas and wetlands are free from pollution.

    CWN appreciated the opportunity to participate in the April 15th dialogue and to send public comments on the written draft strategy. We applaud EPA Administrator Jackson and Assistant Administrator Pete Silva’s efforts on one of the most critical environmental issues facing us, clean water. The summit and the public release of the strategy is a step in the right direction.

    As is made clear in the strategy, clean water is critical for our nation’s human, ecological and economic health. We cannot live or prosper without it. With the global population estimated to reach 9 billion by 2050, and global warming a very real and imminent threat, the world’s supply of water – and of clean water, in particular — is seriously threatened. Many parts of the world already experience dire shortages of clean water. Clean water is a premium commodity, the new blue gold , yet in both policy and practice it is not treated as such.
    The 1972 Clean Water Act (CWA) established a structure to restore and protect our nation’s rivers, lakes, and coastal waters. Great strides have been made since its passage. But the original goals of the CWA – to make the nation’s waters “fishable and swimmable” by 1983 and to eliminate the discharge of pollutants into waters by 1985 – have not been met. In fact while there has been significant improvement in some areas, specifically industrial point source pollution, the reality is that over the past ten years we have seen a roll back in protections nationwide.
    Today, an overwhelming majority of Americans live within 10 miles of a polluted lake, river, stream or coastal area. More than forty percent of all United States waters are not fishable or swimmable.
    The following are just a few of the critical challenges facing our nation’s waters :
     More than 235,000 river miles in the United States have been channelized.
     More than 600,000 river miles are impounded behind dams.
     More than 25,000 river miles have been dredged for navigation.
     More than 50% of wetlands have been lost or destroyed nationwide in the past century, and more are threatened by continued development.
     Thirty percent of the native freshwater fish species in North America are threatened, endangered, or of special concern.
     Nationally, 62 percent of all major industrial and municipal facilities discharged more pollution into US waterways than their permits allowed at least once during a 18 month study period in 2006/07. Of these, the average industrial facility discharged pollution in excess of its permit limit by more than 275 percent, or almost four times the legal limit.
     The United States has over 330 million acres of agricultural land. According to the most recent National Water Quality Inventory (cite) reports, agricultural nonpoint source (NPS) pollution is the leading source of water quality impacts to surveyed rivers and lakes, the third largest source of impairments to surveyed estuaries, and also a major contributor to ground water contamination and wetlands degradation.
     Throughout the country, numerous cases have been documented of incidents involving accidental spills of chemicals, sediments, or waste in to surface waters and the uncontrollable subsurface movement of fracturing chemicals or waste. While drilling technology and the use of sophisticated hydraulic fracturing processes to exact natural gas from sources have advanced greatly over the past decade, the knowledge of how this extraction might affect water resources has not kept pace.

    As highlighted in the Agency’s strategy, one of the most serious clean water challenges continues to be nonpoint source pollution originating from more diverse sources including agriculture, stormwater runoff, habitat, hydrology and landscape modifications, municipal wastewater, and air deposition agriculture and stormwater run-off. One of the areas EPA must clearly put renewed energies into is addressing nonpoint source pollution. Voluntary programs have limited impact and are not the solution. The last three + decades are testament that partnership programs with no regulatory backbone are clearly not doing the job. EPA must beef up its regulatory nonpoint source program otherwise we will not just be treading water, things will get worse.
    The release of this draft strategy from EPA’s Office of Water is timely because we are at a crossroads on how best to reinvigorate our nation’s water quality and quantity protection
    efforts. It is time to take stock, regroup and evaluate where the country stands with current CWA protections so we can move forward to meet the complex challenges of the 21st century.
    CWN agrees with the U.S. Environmental Protection Agency that to succeed in the water pollution fight we must join in a collective effort. Working together with a wide range of stakeholders will improve our odds of success tremendously. We also agree there is no “silver bullet” that will get us to where we all want to be — clean water for everyone. It is imperative that an integrated menu of measures be explored, developed, and implemented. Among other things, to be successful the country needs to adopt a truly integrated approach that solves clean water programs by using a multi-media and watershed/place-based lens. One critical step to developing a much more comprehensive and effective approach, is for EPA to actively work with its federal agency partners that also have responsibility for keeping our nation’s waterways and drinking water supplies safe and clean.
    This effort, as outlined in the draft strategy, requires serious support on the part of senior officials at EPA and throughout the Administration. Putting words on paper in a strategy is one thing; making them a reality is another altogether. It takes guts and a major commitment to make sure our nation’s waters are clean and safe. This draft strategy needs to outline an aggressive action agenda that the Administration takes to heart and follows through on. There are too many similar documents from the past that now serve as bookends on EPA shelves. It is not enough to talk the talk, we need to walk the walk.
    Thank you for this opportunity to comment on EPA’s Draft Clean Water Strategy.

    Sincerely,

    Natalie U. Roy
    Executive Director
    Clean Water Network

    Specific Comments and Recommendations on how to improve the Strategy:
    The CWN supports EPA’s stated commitment to “improve and adapt regulations, permitting and compliance/enforcement efforts as a key first step to change our current path.” [Draft Strategy on page 3.] As EPA notes, to meet the clean water challenges we now face requires building on the strong foundation of existing Clean Water Act programs as well as implementing new opportunities under the Clean Water Act and other authorities. [Draft Strategy on page 2.] However, it is essential that existing protective permitting requirements not be weakened in any way.

    CWN agrees that part of building on our strong clean water foundation is to “Protect What You Have” and “Focus on Protection of Healthy Waters.” We strongly support EPA’s strategy to “utilize a range of tools to ensure that healthy waters are sufficiently protected and to prevent further pollution of lakes, rivers and streams.” [Draft Strategy on page 5]. Toward that end, we strongly support and urge increased strategic emphasis on strengthening CWA tools in the following respects:

    Restore CWA protection for our wetlands, lakes, streams, and aquatic ecosystems
    The very cornerstone of the Clean Water Act is its broad scope of protections for all of the “Waters of the United States;” not just those recognized as traditionally “navigable.” That is why CWN strongly supports EPA’s commitment “to support legislation and consider administrative action to restore the CWA protections to wetlands and headwater streams that provide clean water for human and ecological uses.” [Draft Strategy on pages 3, 6 (Key EPA Action)].
    As EPA has recognized, congressional action is necessary to restore full CWA protections to our nation’s streams, wetlands, rivers, lakes and other important waters — protections that have been placed in doubt as a result of the Supreme Court’s SWANCC (2001) and Rapanos (2006) decisions. However, despite broad support for legislative action, including EPA and Army Corps of Engineers support, the House of Representatives has inexplicably failed to advance this important legislation this Congress.
    In the absence of congressional action, EPA must act to bolster this cornerstone of the Clean Water Act through a formal rulemaking regarding the definition of “waters of the United States” under the CWA that provides much greater certainty regarding protection of currently at-risk waters. Presently, due to agency informal interpretations of SWANCC and Rapanos, approximately 60 percent of stream miles in the lower 48 states and at least 20 million acres of wetlands either are no longer being protected or at risk of not being protected. Additionally, the status quo is mired in immense confusion, inconsistency, delay and drastic enforcement rollbacks. These problems could be significantly alleviated by an EPA-led rulemaking. Given the fact that a legislative fix may be long in coming, we urge EPA to move expeditiously to clarify and restore protections to the Nation’s at-risk waters through a “Waters of the United States” rulemaking.
    Incorporate Climate Science, Modeling, and Adaptation Factors in CWA Permit Review
    The CWN urges EPA to place greater emphasis in its strategy on strengthening CWA permit review to ensure consideration of climate change-induced water quality and water quantity impacts and to protect and restore wetlands and other water resources for climate adaptation and carbon sequestration purposes.

    EPA has acknowledged in its National Water Program Climate Strategy that climate change will cause several threats to water quality such as shorelines moving as a result of sea level rise, changes to ocean chemistry that alter aquatic habitat and fisheries, warming water temperatures that change contaminant concentrations in water and alter aquatic system uses, new patterns of rainfall and snowfall that alter water supply for drinking and other uses and lead to changes in pollution levels in aquatic systems; and more intense storms that threaten water infrastructure and increase polluted stormwater runoff. EPA has also found that more extreme water-related events, such as increased and more intense storms, will have negative water quality impacts by causing more intense flooding and other events that result in high flows, increased sediment and erosion, and a resulting increase in nutrients, pathogens, and toxins entering waterbodies. Temperature increases will also change aquatic biology, disrupting aquatic system health and often resulting in the establishment of invasives and non-indigenous species in certain waters at the expense of existing species.
    According to EPA’s National Water Program Climate Strategy, climate change will also displace shore lines, change flow rates in streams and lakes, change the size of streams and wetlands, and result in other disruptions relating to the flow, quantity, and presence of water in many of our waters.
    CWA permit review by EPA, the Corps, and the States should be strengthened to require consideration of currently occurring and predicted future climate change-induced changes, including changes in precipitation and their effect on the magnitude and timing of runoff, increasing pollutant loads flushed into waters from failing or overwhelmed waste management systems, altered water temperature, altered flow regimes, and altered water levels, including sea-level rise. CWA permit review should also account for the increased importance of maintaining wetlands and headwater streams for their important climate adaptation and sequestration functions. These considerations must be accounted for in the issuance of both NPDES and 404 permits, and in the approval of TMDLs and nonpoint source cleanup programs, such as grants under Section 319 of the CWA.
    Avoid Draining, Dredging, and Filling of Wetlands, Rivers, Streams, Lakes, & Coastal Waters
    Clean Water Act section 404 and the EPA and Corps section 404 permitting regulations, the “404(b)(1) Guidelines,” are among the best tools EPA has to preserve and restore aquatic ecosystems.. EPA is responsible for ensuring that the Corps’ 404 permitting decisions comply with the 404(b)(1) Guidelines. Key among the Guidelines’ permitting standards is the emphasis on avoiding impacts to aquatic ecosystems and the prohibition against dredge and fill discharges in wetlands and other waters of the U.S where there is an environmentally preferable practical alternative. The Guidelines presume that practicable alternatives exist, particularly for non-water dependent activities.

    A reinvigorated emphasis on aquatic impact avoidance is essential to achieving EPA’s laudable strategy to “Protect What You Have” and “Focus on Protection of Healthy Waters.” EPA must not allow the Corps to continue ignoring the first and most important step in the sequencing standard (i.e., avoidance of aquatic impacts first; minimization of impacts second; and compensatory mitigation as a third and last resort available only for those impacts that have been demonstrated to be unavoidable).

    This renewed emphasis on avoidance is one CWA tool that must not be compromised in the name of “partnerships,” “market-based incentives,” “mitigation” or even “restoration” where the underlying projects being promoted are, at base, altering natural habitats for development purposes. Non-water-dependent development has no place in nearshore coastal waters, rivers, lakes, wetlands and floodplains. The added
    threats and challenges of climate change only underscore this common sense principle. EPA should work with the Corps to reinvigorate the emphasis on avoidance
    and practicable alternatives in 404 permit review, and EPA should use its 404(c) “veto” authority as necessary to enforce this aspect of the 404(b)(1) Guidelines.

    Close CWA Loopholes that Allow Mining and Other Waste Dumps in Rivers, Lakes, & Wetlands
    CWN strongly supports EPA’s strategy to “use the full suite of CWA tools to protect high-quality streams from destruction and degradation caused by mining activities.” [Draft Strategy on page 6 (Key EPA Action)]. In particular, we urge EPA to move expeditiously to close two regulatory loopholes in the Clean Water Act that allow large mines to dump their tailings and other wastes directly into the nation’s rivers, lakes, and wetlands without meeting the Act’s water quality standards. These loopholes fly in the face of a main purpose of the Clean Water Act – to stop using waters as waste dumps.

    The first loophole is the result of the 2002 revision of the CWA regulations defining “fill.” Under the current definition, EPA and the Corps treat the discharge of tailings from hard rock mines and overburden from surface coal mines as fill material subject to Section 404 rather than regulate these discharges as the disposal of industrial wastes. For hard rock mining, the practical implication of this regulatory change is that toxic mining wastes discharged into waters are no longer governed by the CWA program designed to regulate these discharges and are not subject to the strict pollution standards adopted by EPA in 1982. For coal mining, the consequence of this loophole is equally alarming. Coal companies across Appalachia have relied upon the loophole to justify burying approximately 2,000 miles of mountain streams with overburden from surface coal mines. CWN urges EPA and the Corps to revise their regulatory definitions of fill to exclude waste disposal.
    The second CWA loophole is found in EPA and Corps regulations that exclude “waste treatment systems” from the definition of “waters of the United States.” Mine developers, relying upon the waste treatment system exclusion, have obtained Section 404 permits authorizing them to build dams across the mouths of valleys. The mining company is then allowed to dump its wastes into the rivers, lakes, and wetlands behind the dam because they are considered part of a “waste treatment system” rather than “waters of the United States.” The use of this exclusion by mine developers has resulted in the wholesale destruction of these ecosystems and harmed the people, fish, and wildlife that depend upon them. EPA expressly limited the exclusion to manmade bodies of water in 1980. To make full use of CWA tools to protect healthy watersheds, CWN strongly encourages EPA and the Corps to close this loophole and bring consistency and clarity to the waste treatment system exclusion by revising their regulations to restore EPA’s 1980 clarification that the waste treatment system exclusion applies only to manmade bodies of water which were not created in waters of the United States or impoundments of these waters.
    Increase Protection of Healthy Watersheds
    CWN strongly supports EPA’s strategy to work with the States to increase protections for healthy watersheds and the following strategy statement on page 5:

    Healthy watersheds provide our communities with drinking water, recreational
    opportunities, environmental benefits and services, including clean water for healthy aquatic ecosystems, habitat for fish and wildlife, and better resilience against storms and floods, climate change and future land-use changes.

    We also strongly agree with EPA’s pragmatic recognition that protecting healthy watersheds is “a far more cost effective approach than cleaning up a waterbody after it has been polluted.” [Draft Strategy on pages 3, 5.] Healthy watersheds protection also provides the foundation for successful long-term water quality restoration.

    There is a need for EPA leadership to work across federal and state agencies to protect aquatic ecosystems holistically as they function in nature, rather than through a piecemeal approach. This healthy watershed approach needs to be based on a systems-approach that uses current state-of-the-science and practice in protecting watersheds as systems: biota, habitat, and processes (e.g., in-stream flow). Green infrastructure must be implemented in suitable locations (e.g., on uplands rather than in waters) to protect watersheds as systems for both aquatic ecosystem protection and source water protection. This holistic approach must not be manipulated to allow otherwise impermissible impacts to occur in one area of the watershed based on the often unsubstantiated claim that mitigation or restoration elsewhere in the watershed will achieve net water quality benefits overall.

    Toward this end, CWN supports EPA’s key action to develop a common set of comprehensive metrics and the latest state-of-the-science, peer-reviewed methods to identify and assess healthy watersheds across states, working in conjunction with other Federal agencies. We further support the use of these assessments to help States set priorities and implement watershed protection programs. Draft Strategy on pages 5-6 (Key EPA Action). Full EPA enforcement of the Clean Water Act should not be delayed, however, while such assessments are under way.

    EPA should support Section 208 with renewed grant funding and require that existing Section 208 plans be updated, as required in the Clean Water Act, to include both point and non-point sources of pollution in a watershed that will result in total water management plans.
    The EPA should reinvest in comprehensive watershed management planning and foster collaborative partnerships between utilities and all other stakeholder groups in the watershed as initially envisioned in Section 208. Non-profit citizen watershed groups in partnerships with utilities have demonstrated great potential to leverage dollars from a multitude of sources and use the watershed planning process as a means to develop consensus within communities. The implementation of these plans will result in healthier watershed and lower costs for water and wastewater utilities over the long term.
    In a nutshell, we need to get back to the grassroots. There is a huge disconnect between the EPA at the regional level and numerous local citizen groups working on the ground. Using statewide watershed groups can be a bridge between local groups and all the information the EPA has stored on shelves not being used.
    Putting much more emphasis back on Section 208 of the CWA is a great way to engage local stakeholders. Section 208 provisions envisioned real collaboration but fell short back in the 70’s and 80’s due to the lack of citizen groups. Now that there is a proliferation of citizens groups it is unfortunate that EPA doesn’t do more to support it. Strengthening section 208 will help EPA leverage existing resources to build true collaborations. Section 208 water quality management plans were a source of water quality assessment information for the preparation of 305(b) reports (national water quality inventory reports). They also provided data, information and recommendations used for stream classifications, TMDL’s, waste load allocation studies, and permitting requirements necessary for regulatory decisions in the water quality management process.
    EPA must put in place stronger measures & programs (regulatory and incentive based) to address agriculture nonpoint source & urban stormwater pollution
    While agriculture is an essential cornerstone of our economy, run-off from farm operations is one of the biggest contributors to U.S. water pollution. According to the EPA, the most recent National Water Quality Inventory (cite) reports that agricultural nonpoint source (NPS) pollution is the leading source of water quality impacts to surveyed rivers and lakes, the third largest source of impairments to surveyed estuaries, and also a major contributor to ground water contamination and wetlands degradation. Agriculture has met a host of challenges over the years. The challenge today for farmers is to continue producing safe nutritious food in a way that does not impact the environment.

    Nitrogen and phosphorus pollution resulting from agricultural run-off causes low dissolved oxygen level, which are harmful to marine and fresh water bodies and the species living in these waters. According to the EPA, excess levels of nitrogen and phosphorus are responsible for creating a huge dead zone in the Gulf of Mexico that threatens numerous human and ecological communities as well as the basic health of the Gulf. Agricultural run-off also impairs fresh water systems in the Mississippi River Basin, the Great Lakes, the Chesapeake Bay and numerous other watersheds across the country and in nearly every state.
    Excess nitrogen and phosphorus also lead to high levels of algae in the water. Before such water is suitable for drinking it must be treated, and some treatment processes produce cancer-causing trihalomethanes as an unwanted side effect. Nitrogen and phosphorus pollution also affect human health by stimulating the growth of cyanobacteria (blue-green algae) that produce toxic substances. Exposure of humans to these toxic substances through contact, inhalation of water spray, or oral ingestion can cause debilitating illness and even death (cite needed). Recreational activities such as swimming and water skiing can result in exposure to contaminated water, as can being on the water, for instance, during recreational or commercial fishing. To date, agricultural non-point source run-off into our nation’s rivers, streams and lakes are essentially exempted from federal environmental laws. Various voluntary programs have attempted to monitor non-point source water pollution, but with limited success.
    The lack of strong regulatory oversight over agricultural operations including Concentrated Animal feed Operations (CAFOs), which are considered point sources, has resulted in the agricultural sector having the dubious honor of being the main source of the country’s nutrient and sediment pollution as well as habitat loss that the Strategy identifies as among the most serious water quality challenges. EPA, with or without new Congressional authority, must act to do more to address agricultural pollution. Further, numeric nutrient standards must be developed immediately nationwide since nutrient impairment is such a pervasive problem across the country. Beyond that, EPA and Congress should create incentives for states to do more to control nonpoint pollution sources across the board.

    EPA should exercise greater oversight over state CWA programs.
    The final Strategy for Clean Water should acknowledge that despite the efforts of many dedicated state officials, many states are failing to implement federal CWA requirements. Further, EPA should consider how it will effectively address shortcomings in state programs and correct them. This should include expedited procedures for correcting state programs under 40 CFR § 123 and developing ways for EPA to take over state functions quickly to protect water quality when necessary.

    EPA should promote Green Infrastructure approaches to water management from the local to the national level.
    The nation’s water infrastructure is aging, overused, underfunded and threatened by the impacts of a changing climate. Green infrastructure offers a 21st century alternative to conventional water infrastructure that has both the flexibility and economic viability to address today’s challenges of polluted runoff, flooding, and sewer overflows.

    EPA should not promote big-pipe, centralized infrastructure for water, stormwater, and wastewater services. These systems should only be used where there are no other
    feasible alternatives, because they are generally not sustainable over the long-term. Many municipal systems consume too much water, disrupt ecosystems, and use considerable energy to move water and wastewater. Growing populations, increasing land development, and climate change will only make these problems worse.
    Sustainable water systems in the future will use, treat, store, and reuse water efficiently on a smaller scale and will blend designs into restorative water hydrologies.

    Controlling post-construction stormwater runoff (page 7 of Strategy) is much-needed to achieve clean water and we applaud EPA for addressing this issue through the stormwater rulemaking and by emphasizing green infrastructure approaches. As part of this rulemaking, we urge the agency to implement strong standards for development and redevelopment to ensure that urban communities have equal access to clean water as suburban communities.

    EPA should also dedicate adequate funding for research and demonstration projects and funding for water use efficiency programs including programs such as EPA’s WaterSense. Other initiatives and efforts EPA should promote and support that should be highlighted in the agency’s clean water strategy include:

    • Clean tech venture capital funding; tax incentives for builders and homeowners;
    • Development of national standards for water-efficiency and reuse;
    • Incorporation of water-efficiency and reuse standards in federal funding for Clean Water and Drinking Water State Revolving Funds;
    • Support for utilities that implement sustainable designs;
    • Requirements for integrated water, energy, and resource management;
    • Federal facility use of sustainable water systems;
    • Funding for local governmental entities to prepare long term integrated water resource management plans that prioritize federal funding and cross-agency
    implementation as well as meet minimum criteria including analysis of all of the following;
    • Investing in planning, development, and implementation of community-based green infrastructure projects; and
    • Establishing a green infrastructure program within the Environmental Protection Agency’s Office of Water to promote the use of green infrastructure and provide technical assistance to states, local governments, and the private sector.

    Propose changes to the federal water quality standard regulations that would clarify and strengthen antidegradation regulations to protect high-quality waters (p.6 of Strategy)
    Tier 3 waters represent a key part of the Clean Water Act’s goal to ‘protect’ our nation’s waters, but one that is sorely underused. This is illustrated by the fact that currently only 27 states have waters designated as Tier 3, and of those, some states only have one or two waters designated. Federal policy in this area remains too vague and must be improved to provide impetus for states to designate and protect Tier 3 waters. CWN supports EPA’s efforts to improve Tier 3 regulations and recommends that EPA ensure that certain waters, such as Wild and Scenic Rivers, streams and rivers on federally protected land, and ecologically significant waters, are protected using Tier 3.

    Sanitary Sewer Overflows
    The draft strategy needs to strongly promote a strong and comprehensive Sanitary Sewer Overflows (SSOs) rule that protects public health and clean water, improves public notification and monitoring, makes clear that sanitary sewer overflows are illegal, and ensures that systems are planning for the future by investing in innovative, smart, clean and green sustainable infrastructure.

    Clean Water Network strongly supports modifying the National Pollutant Discharge Elimination System (NPDES) regulations as they apply to municipal sanitary sewer collection systems and SSOs. EPA action is needed in order to better protect the environment and public health from the harmful effects of sanitary sewer overflows and basement backups. SSOs cause infection, disease, and nitrification of drinking water. They can also cross contaminate drinking water delivery pipes as well as contaminate drinking water sources. EPA estimates there are 1.8 to 3.5 million cases

    of illness annually from swimming in waters contaminated by SSOs. These overflows also cause fish killing algal blooms, create dead zones and contribute to groundwater contamination.

    In addition to massive public health concerns, there are economic consequences including loss of recreation and tourism revenue opportunities, lost-work days, decrease in fisheries, raw sewage in basements and parks requiring clean up, roads caving in causing traffic tie ups, and injury and death from dangerous sink holes. In addition, by not knowing the rate of failure for their sewer pipe collection system (almost exclusively big pipe systems in the first place without considering non-
    structural alternatives) communities have not targeted dollars efficiently to repair, replace or augment with green infrastructure their aging, burgeoning pipes. Because of this, municipal sewer rates are skyrocketing and many municipalities have a fix or replacement schedule of 100 years or more.

  23. September 17, 2010

    September 17, 2010

    On behalf of the National Association of Flood and Stormwater Management Agencies, I want to thank you for inviting us to participate in the Clean Water Forum held on April 15, 2010, and for providing the opportunity to comment on this draft of EPA’s proposed strategy for achieving clean water. NAFSMA is a 32-year old organization representing local, regional and state agencies addressing flood and stormwater management issues.

    In order to have both healthy watersheds and sustainable communities, it is important to recognize that any national strategy on clean water issues needs to be flexible in its approach so that different hydrologic conditions that exist throughout the country can be addressed, and it needs to be both technologically and economically feasible. It is also important to recognize that although many of our member communities are utilizing and very supportive of green infrastructure approaches and low impact design technologies to address water quality issues, the decision as to what type of approach is suitable for an individual community is one that is best made at the local level. These approaches need to be viewed as one of a number of local, regional, state and federal tools in the toolbox to address water quality issues.
    In general, NAFSMA is very supportive of the draft strategy’s call to rely on robust science and cutting-edge technologies, particularly in emerging areas of concern such as climate adaptation, ecosystem services, integrated watershed approaches, and emerging pollutants of concern. On behalf of our membership we would urge you to include a scientific look at the successes that have been achieved to date and carry out an assessment of the approaches that have been used to address urban runoff issues across the country as part of this research effort.

    As part of this overall clean water strategy, NAFSMA strongly urges the pursuit of a national stormwater strategic initiative that would involve engineers, scientists, regulators, MS4 administrators, and stormwater practitioners to evaluate the status of the stormwater sciences. The summit should evaluate what we now know about stormwater, what we yet need to know, and how we can use the information we have to define an effective and economically sustainable stormwater strategy for the foreseeable future.
    This strategic initiative should include an EPA funded “NURP” type process that would be charged with the task of (1) determining the state of knowledge of stormwater management science and practices, (2) identifying the known effective and sustainable technologies which can improve MS4 permit program performance, (3) identifying a research and development agenda for the future, and (4) evaluating the costs and benefits of effective and economically sustainable technologies.

    We would welcome the opportunity to discuss these issues with you in greater detail and urge you to contact me at 202-289-8625 to discuss these issues.

    Sincerely,
    Susan Gilson
    Executive Director

  24. September 17, 2010

    The Trust for Public Land (TPL), New Forests and Evergreen Conservation Finance appreciate this opportunity to comment on the Public Discussion Draft dated August 2010 of the EPA’s Strategy for Achieving Clean Water. We support the plan of action offered by EPA in this draft Strategy, but we suggest that the Clean Water State Revolving Fund system deserves a closer look as a key tool in implementing that strategy. TPL is leading a project (financed by the Doris Duke Charitable Foundation) to investigate mechanisms through which the CWSRF system could devote more resources to nonpoint source pollution prevention and abatement through watershed conservation.

    The Clean Water State Revolving Fund system is a key financing vehicle for water quality improvement projects nationally: the system currently has net assets totaling $35.5 billion and has made $74 billion in low-interest loans for water quality improvement since 1988. In recent years it has financed approximately $5 billion in water projects per year. While the CWSRF system has historically been an important tool for financing the construction and improvement of municipal wastewater treatment plants, the system also has the authority to fund nonpoint source pollution reduction projects – but only 4% of lending to date has targeted nonpoint source pollution. As your draft strategy notes, the main national sources of water degradation today are primarily nonpoint sources – agriculture, stormwater runoff, habitat, hydrology and landscape modifications. The CWSRF system is therefore a program with enormous resources that is fighting yesterday’s battle, not today’s.

    We suggest that, with certain changes, the CWSRF system could be a key tool in protecting healthy watersheds and in reducing the amount of nonpoint source pollution entering U.S. waters. While our upcoming public report will provide more detail, we would summarize a few recommendations here for unlocking the NPS pollution reduction and watershed conservation potential of the CWSRF system:

    1. Encourage more states to adopt systems (based on Ohio’s) where point source borrowers sponsor NPS projects and gain preferentialce borrowing terms as a result.

    2. Encourage states to list watershed protection projects on their IUPs and prioritize projects for assistance that deliver the most pollution reduction per dollar of financial assistance. NPS pollution reduction projects can often reduce pollution more cheaply than improvements to ‘bricks and mortar’ point sources.

    3. Encourage a set aside by each state for NPS pollution reduction projects as a part of the Green Project Reserve.

    4. Encourage all states to permit governmental, private for-profit and non-profit entities to borrow for NPS pollution reduction projects.

    5. Allow point sources, sewer and utility districts to comply with CWA requirements in their NPDES and MS4 permits by meeting a portion of their pollution abatement through sponsoring NPS projects financed by CWSRF funds, with loan repayment by the point source or ratepayers in the sewer/utility district.

    These innovations – some of which have already been adopted by CWSRF programs in different states – would help create a significant source of financing for NPS pollution reduction projects nationwide. A 10% allocation of annual CWSRF lending would generate approximately $500 million for nonpoint source pollution reduction – a non-trivial figure in today’s fiscal climate.

    Thank you for considering our comments; we would be happy to forward a copy of our final report on the potential of the CWSRF system for NPS pollution reduction and watershed conservation should you be interested.

    Matthew Zieper, Trust for Public Land
    Brian Shillinglaw, New Forests
    Daniel Patrick O’Connell, Evergreen Conservation Finance

  25. September 17, 2010

    Green For All is pleased to offer these comments on the Environmental Protection Agency’s (EPA) draft strategy for public discussion, “Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water.”

    Green For All commends and supports the overall intent to modernize the Clean Water Act to address 21st century needs. The EPA has taken a good first step in calling for stronger regulations and standards, greater enforcement, and more local involvement. There are three points made in the drafty strategy we would like to highlight and expand upon.

    1. Engagement of local stakeholders and non-governmental organizations (NGOs) is critical. The principle of coordination is noted in several areas throughout the document. We support the call for local governments, state governments, and tribes to work together with federal agencies. Additionally, the EPA’s strategy for more tailored approaches to address the particular needs of a community to optimize results complements this call for broader engagement well.

    It is also worth noting that non-governmental organizations (NGOs), academic research institutions and private sector leaders also need to play a critical role in increasing greater public outreach on the need for water efficiency and conservation; informing policy makers about local innovations and best practices; and, generating support for appropriation of public funds that can help close the $543 billion gap between current investments in our nation’s water infrastructure and projected needs over the next 20 years.

    2. Green infrastructure can yield multiple benefits and should be promoted more broadly to meet CWA requirements. More sustainable water management practices that mimic natural systems – such as planting trees, green roofs or rain gardens –can promote a green economic model that creates green jobs in our communities; decrease urban sprawl; double as open spaces and parks, particularly important for low income communities without sufficient recreational space; cool the environment; and, all around improve quality of life in our communities.

    We encourage EPA to solicit best practices from local community stakeholders to identify successful green water strategies. This process can lay the foundation for a toolkit made available to local communities to help meet the mandated requirement to use at least 20 percent of FY 2010 appropriated Clean Water State Revolving Funds for green projects, such as green storm water infrastructure, water efficiency projects, energy efficiency projects, and other innovative environmental projects.

    3. Invest in communities – especially disadvantaged communities – to access, restore and benefit from their waters and surrounding land. The EPA’s Urban Waters Initiative is just the right model that demonstrates this principle and we look forward to seeing the EPA roll out this program.

    The original intent of the Clean Water Act was to address traditional point sources of pollution that threatened our nation’s surface waters. Forty years later, climate change, development and urbanization jeopardize our water supply in that water pollution is no longer limited to traditional point sources but nonpoint sources as well – putting both our surface waters and drinking water at risk. As EPA looks to modernize the CWA to address 21st century concerns around water scarcity, water pollution and threats to public health, we look forward to a similar examination of the Safe Drinking Water Act.

  26. September 17, 2010

    The U.S. Environmental Protection Agency (EPA) is exploring opportunities to reinvigorate approaches towards achieving clean water in America. As part of the effort, EPA has developed a public discussion draft outlining proposed strategies to reach that goal. The City and County of Denver (CCoD) appreciates the opportunity to submit comments on the draft Strategy for Achieving Clean Water and is submitting the following comments for consideration

    Specific Comments

    The second paragraph in the section on Clean Water Challenges (page 1) states that the rate at which waters are being listed for impairments exceeds the rate at which they are being removed. It’s not clear that this is an accurate indicator of the magnitude of the problem. Contrary to the statement, data collected by the City and County of Denver, as well as many other entities, indicates that water quality is significantly improved over data collected in the 1960s, 70s, 80s, and 90s. The fact that more waters are being listed than removed, could be considered an artifact of the steps in the 303(d) listing process. That process includes increasingly restrictive instream standards, collection of increasing amounts of data, and the inability of States to develop and implement TMDLs in a timely manner.

    In the second full paragraph on page 3 of the document, EPA introduces the concept of identifying and protecting waters that are healthy. CCoD believes this approach to be a much more cost effective approach to protecting water quality than current attempts to address water quality after it is impaired and encourages EPA to move forward with this proposal.

    In the Key Actions Section (page 4), EPA presents a series of principles, in bullet form, to which it is committed. The first bullet proposes developing new ways to implement the Clean Water Act. CCoD suggests that EPA evaluate the effectiveness of rules already on the books before promulgating new rules which may result in new problems. In order to fix existing water quality problems, EPA needs to understand why the existing rules have not been effective. One issue may be the result of many States having experienced several years of budget shortfalls which have resulted in staffing cuts. As a result, States are not currently able to adequately enforce existing rules. Rather than focus on developing new enforcement approaches that States cannot afford to implement, EPA would be well advised to build capacity at the State level to more effectively enforce existing rules.

    In the section entitled Know What You’ve Got (pages 4 to 5), EPA discusses systematically assessing the nation’s waters to provide a baseline against which to measure progress. EPA should consider partnering with local governments, watershed organizations, and volunteer monitoring programs on the efforts described in this section. Many of those organizations have long-term monitoring records for the waterbodies that they are interested in and have a better understanding of the water quality issues that impact those waterbodies.

    The section on Fixing What’s Broken (page 6) proposes to use the Chesapeake Bay as a model for watershed protection in other parts of the country. There are many who think the Chesapeake Bay is a poor model for implementation of watershed protection and restoration programs for the rest of the country. Lessons learned in the Chesapeake Bay may not translate well to other parts of the country, such as the intermountain west, which are drier and have no coastal waters. Many of these areas also have water quantity and water rights issues that are not adequately reflected in the discussion of restoration of the Chesapeake Bay watershed. We strongly suggest that EPA consider other watersheds as models for implementation of such programs.

    The bulleted list on page 7 lists many ways that EPA is proposing to tighten regulation of point sources. In the past, most efforts intended to improve water quality have focused on point sources. Although it is likely that there will always be unpermitted discharges that need to be addressed, EPA must recognize that a greater, unaddressed impact to water quality exists; non-point sources. CCoD encourages EPA to obtain the authority to regulate non-point source pollution more comprehensively and to develop more substantive programs to address non-point source pollution. CCoD also encourages EPA to consider the law of diminishing returns as it applies to regulation of point sources; enforcement against point sources and iterative adoption of increasingly stringent water quality regulations that apply to point sources will eventually result in a situation where the expense associated with improving effluent water quality will not justify the resulting human health and environmental benefits. It is not sustainable for point sources to meet standards that do not have a net benefit.

    In the first bullet on page 9, EPA proposes to encourage States to use the CWSRF for projects that are consistent with EPA’s energy policy. Elsewhere in the Clean Water Strategy document, EPA suggests that it will increase the focus on water quality in urban areas. In some States, such as Colorado, there may be a discrepancy between EPA’s intent and the reality of how the State determines which projects are eligible for CWSRF funding. In Colorado, the CWSRF uses an economic needs formula to determine which communities have the greatest financial need. As a result, the priority for CWRSF funding is projects in smaller communities that are not capable of implementing those projects without additional sources of funding. Consequently, encouraging Colorado to use the CWSRF for projects that are consistent with EPA’s energy policy may not result in increased CWSRF funding for projects in urban areas. If EPA chooses to move forward with this concept, it will be necessary to address the discrepancy between its intent and the reality of how States determine which projects are eligible for CWSRF funding in order to realize meaningful improvements in water quality in urban areas.

    The first bullet on page 9 also opens the use of CWSRF to energy efficiency projects. In 2009, the State of Colorado’s intended use plans listed $1.9 billion in projects eligible for funding from the drinking water revolving loan fund and $2.5 billion in projects eligible for funding from the water pollution revolving loan fund; at that time, each fund contained $56 million. Given the existing needs for improvements in water infrastructure and the lack of funding it seems foolish to divert limited resources for clean water projects to energy efficiency and “other innovative environmental projects” unless energy improvements are specifically related to addressing clean water needs.

  27. September 17, 2010

    COMMENTS ON COMING TOGETHER FOR CLEAN WATER
    PREPARED BY THE ENVIRONMENTAL WORKING GROUP

    The Environmental Working group is pleased to provide these comments regarding the Coming Together for Clean Water report. The report is very encouraging in its recognition of the central role agriculture must play in achieving the goals the goals of the Clean Water Act—fishable and swimmable waters. We couldn’t agree more that “over the last 30 years, stressors have shifted, as demonstrated by EPA’s National Aquatic Resource Surveys” and that the “main national sources of water degradation are: agriculture, stormwater runoff, habitat, hydrology and landscape modifications municipal wastewater, and air deposition.” Agriculture, in addition to its direct contributions to water polluted through pervasive polluted runoff, also is a dominant factor in degradation of habitat, and damaging changes in hydrology and landscape modifications.

    It is clear that if we don’t find far more effective means to improve agricultural practice we will not achieve the fishable and swimmable goals for the Nation’s waters.

    Voluntary Programs

    We applaud your proposed key action to “Coordinate funding opportunities with USDA to accelerate nutrient and sediment reductions and tackle key agriculture challenges through an integrated approach using 319 program, Clean Water State Revolving Fund (CWSRF), CWA section 117, STAR grants and USDA conservation programs.” Better coordination of multiple federal and state programs will be helpful, but fundamental changes in the way voluntary programs are implemented must be made if those programs are to make a significant contribution to preventing degradation of and restoring damaged waters.

    Scientific research and practical experience clearly indicates that poor farm production practices applied to environmentally sensitive land produce a disproportionately large share of the pollution from agricultural operations. Where surface runoff is the primary source of agricultural pollution it is not uncommon to find that 20 percent of the agricultural land is produced 80 percent of the loadings of nutrients, sediment, bacteria and other agricultural pollutants. If voluntary programs are to provide any significant reduction in agricultural pollution, they must be focused into priority watersheds and targeted directly at the most damaging practices on environmentally sensitive land.

    However, we think it is time to admit that voluntary programs alone have no chance of acheving the reductions in agricultural pollution needed to meet Clean Water Act goals. Voluntary programs suffer from inherent weaknesses as tools for achieving pollution reductions. First, farmers must be willing to volunteer and often the farmers who do volunteer are not farming the land that is causing much of the damage. Second, farmers’ priorities often dominate particularly if they are picking up part of the cost of the practice implementation. Finally “equity”—defined as making sure every farmers has a chance to access voluntary conservation program dollars—dominates the decision regarding allocation of funds and selection of participants in voluntary conservation programs.
    The result is too often random acts of conservation rather than the highly focused and targeted approach that is needed to get meaningful results. These inherent weaknesses can be overcome, but it requires heroic effort and our track record is sobering.

    Moreover, the funding promises made in farm bills for USDA voluntary conservation programs have been broken every year since 2002. One can ask how much commitment there really is to the voluntary approach and the wisdom of continuing to push hard for increases in such funding, only to watch those increases disappear year-after-year.

    We think voluntary programs must be buttressed by effective regulatory measures specifically designed to work in agricultural watersheds.

    Accountability Framework

    We are intrigued by the statement in Coming Together for Clean Water that EPA will work together with states to better manage excess nutrient enrichment in surface water and “promote accountability frameworks that include publicly-available, science-based state nutrient reduction implementation activities that are watershed-based and have locally-binding mechanisms to achieve the reductions.

    We think such accountability frameworks could be particularly effective in reducing pollution from agricultural land if (1) the accountability framework covers a full suite of agricultural pollutants, particularly sediment and bacteria and (2) if the accountability framework includes locally-binding mechanisms to reduce pollution from agricultural operations.

    We think there are two promising ways to create such locally-binding mechanisms as essential components of an effective accountability framework: (1) state-based regulations that restrict the use of the most damaging practices on the most environmentally sensitive agricultural land and (2) full enforcement by USDA of the farm bill conservation compliance provisions that require farmers to undertake a some soil conservation measures and protect wetlands on their operations in order to maintain eligibility for a long list of income, production, marketing, and conservation subsidies.

    Precision Regulation

    States must identify the specific agricultural production practices that cause a disproportionately large share of nutrient pollution and develop enforceable mechanisms to ban or restrict the use of those practices. The identified practices must include nutrient pollution from surface runoff and surface and sub-surface drainage systems. States must clearly delineate which practices will be subject to enforceable mechanisms and must demonstrate that it has the means to effectively enforce those regulations. The covered practices will vary from state to state depending on the types of agricultural operations and watershed characteristics in each state. Such enforceable mechanisms in the Upper Mississippi River Basin should include, for example, some or all of the following: (1) restricting unmanaged access of livestock to streams and lakes, (2) treat or prevent ephemeral gullies with direct connections to stream networks, (3) mandatory permanent vegetative buffers of 50 feet between row crop fields and streams and surface intakes in tile drainage systems, (4) restricting fall application of nitrogen fertilizers, (5) banning application of liquid and solid manure to snow-covered or frozen ground and (6) restricting application of phosphorus to soils that exceed levels of phosphorus saturation that facilitates loss of soluble phosphorus.

    The goal of precision regulation should be to affect the smallest number of agricultural operations to produce the largest pollution reductions and to provide a socially acceptable answer to how the cost of pollution reduction should be shared between taxpayers, landowner, and farm operators.

    Conservation Compliance

    The conservation compliance provisions of the 1985 farm bill require farmers to reduce soil erosion on highly erodible land and protect wetlands in order to remain eligible for a wide range of subsidies provided through USDA commodity, disaster, marketing, conservation, and loan programs. These two provisions are credited in a USDA Economic Research Service study with reducing erosion on highly erodible cropland by at least 40 percent. The same ERS study concluded that compliance provisions could be am effective means to improve water quality if the provisions were broadened to cover more land and additional practices.

    The Natural Resources Inventory, conducted by NRCS indicates that little further progress in reducing soil erosion has been accomplished since the highly erodible land provisions were fully implemented by 1997. Moreover, two reports have raised serious concerns about the lack of effective enforcement of the compliance provisions in recent years. Those reports suggest we are at risk of losing much of the soil conservation benefits we achieved through conservation compliance.

    Offering carrots with stringsrequiring recipients of federal and state subsidies and benefits to meet certain criteria in return for getting those subsidies and benefitsis a widespread and largely accepted feature of federal and state policy. It seems more than fair to ask farmers to undertake a measure of soil conservation and pollution prevention on their operations in return for what can be very large subsidies.

    We urge you to take full advantage of the law that is already on the books and ensure full and effective implementation of the conservation compliance provisions of the 1985 farm bill.

    NRCS has to intensify its annual inspections to determine whether producers are controlling erosion and runoff from their lands and FSA must make full use of its authority to impose graduated penalties on farmers who refuse to get back into compliance. During the reauthorization of the farm bill in 2012, the Administration should develop and support an initiative to increase the actions required to meet conservation compliance requirements to include practices with a greater impact on preventing water pollution from agricultural land.

    CAFO Regulation

    Finally, we applaud your proposed key action to “Audit point source programs (CAFOs, stormwater, water quality based permits) that have significant nutrient reduction potential to assure full CWA tools implementation.” We urge EPA to review all state CAFO permit programs to assure that all livestock facilities that require NPDES permit are covered by state permit programs. Moreover we urge EPA to undertake a review of state inspection and enforcement programs to determine if the programs provide effective oversight of all livestock operations in the state.

    Again, I am pleased to submit these comments for the Environmental Working Group and applaud you for your call for a renewed commitment to achieving the goals. We stand ready to help in any way we can.

    Craig Cox
    Senior Vice President
    The Environmental Working Group

  28. September 17, 2010

    The Texas Commission on Environmental Quality (TCEQ) is concerned that this document is another “strategy” document leading to more and more federal control and a “one size fits all” approach to water quality protection. To be successful, we feel that EPA must partner with states in a meaningful way with the real expectation that states may design strategies that best fit their state’s needs.

    Federal approaches to deal with CAFOs are not as effective as state management of its livestock and poultry industries. EPA has already set overarching national standards that the states’ should be allowed to implement without additional federal rulemaking. States have been caught up in a cycle of all too frequent court cases and rulemaking and have not been able to get the rules established long enough to get their general permits issued. EPA and several states have just recently (early 2009) been able to get the general permit issued to respond to the 2003 changes in the CAFO rule. These changes should be monitored and evaluated prior to any new federal rule.

    Most of the ideas in the Strategy for Achieving Clean Water will require funds that are currently in short supply and will remain so into the near future. This essentially means that these ideas will not be fully implemented for an extended time period. It may be more useful to determine the most practical water quality standards that reflect the realities of developed or highly used watersheds. Goals that are reachable may garner more support and effort from the affected stakeholders.

    It would be beneficial to allow MS4s continued flexibility in choosing their BMPs. Recognizing green infrastructure is an option, but not a requirement, will make it easier for CWA 319 funds to be used to fund these types of BMPs.

    TCEQ concurs with the effort to better utilize information from the states’ integrated water quality monitoring and assessment reports. The National Aquatic Resource surveys have been useful for broad assessments of water quality, but they also require additional resources at both the federal and state level that affect other water quality monitoring programs. In particular, the statistical random sampling approach that’s used for these surveys severely limits the applicability of this data for the states’ historic monitoring efforts to assess individual water bodies. For the long term, TCEQ encourages EPA to further coordinate with states to consider stratified random station selection and other approaches that better utilize existing monitoring sites and resources.

    Any proposed rule changes to antidegradation or 316(b) regulations should only be accomplished through a very active and early stakeholder process with states and all other involved stakeholders. The stormwater permitting coverage should not be expanded to cover new unregulated areas until the results of the current round of regulations have been monitored and evaluated to determine if further regulation is necessary.

    Auditing point source programs for nutrient reduction might seem a worthy goal. However, most states are just now developing numeric nutrient criteria. An audit of narrative nutrient criteria will be subjective and will not lead to worthwhile information. It would be better to wait till states have numeric criteria in place.

    It is unnecessary to expand the authority of the Clean Water Act beyond the limits described in the SWANCC and Rapanos cases.

  29. September 17, 2010

    Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water

    National Wildlife Federation Comments on Public Discussion Draft, August 2010

    NWF strongly supports EPA’s stated commitment to “improve and adapt regulations, permitting and compliance/enforcement efforts as a key first step to change our current path.” Draft Strategy at 3. As EPA notes, to meet present clean water challenges requires building on the strong foundation of existing Clean Water Act programs as well as implementing new opportunities under the Clean Water Act and other authorities. Draft Strategy at 2.

    NWF agrees that part of building on our strong clean water foundation is to “Protect What You Have” and “Focus on Protection of Healthy Waters.” We strongly support EPA’s strategy to “utilize a range of tools to ensure that healthy waters are sufficiently protected and to prevent further pollution of lakes, rivers and streams.” Draft Strategy at 5. Toward that end, we strongly support and urge increased strategic emphasis on strengthening CWA tools in the following respects:

    • Restore CWA protection for our wetlands, lakes, streams, and aquatic ecosystems

    The very cornerstone of the Clean Water Act is its broad scope of protections for all of the “Waters of the United States”; not just those recognized as traditionally “navigable.” For this reason NWF strongly supports EPA’s commitment “to support legislation and consider administrative action to restore the CWA protections to wetlands and headwater streams that provide clean water for human and ecological uses.” Draft Strategy at 3, 6 (Key EPA Action).

    As EPA has recognized, congressional action is essential to restore full CWA protections to our nation’s streams, wetlands, rivers, lakes and other important waters — protections that have been placed in doubt as a result of the Supreme Court’s SWANCC (2001) and Rapanos (2006) decisions. However, despite broad support for legislative action, including support from EPA and Army Corps of Engineers, the House of Representatives has failed to advance this important legislation this Congress.

    Until Congress develops a long-term statutory solution, EPA must act to bolster this cornerstone of the Clean Water Act through a formal rulemaking regarding the definition of “waters of the United States” under the CWA that provides much greater certainty regarding protection of currently at-risk waters. Presently, due to agency informal interpretations of SWANCC and Rapanos, approximately 60 percent of stream miles in the lower 48 states and at least 20 million acres of wetlands are either no longer being protected or at risk of not being protected. Additionally, the status quo is mired in immense confusion, inconsistency, delay and drastic enforcement rollbacks. These problems could be significantly alleviated by an EPA-led rulemaking. Given the fact that a legislative fix may be long in coming, we urge EPA to move expeditiously to clarify and restore protections to the Nation’s at-risk waters through a “Waters of the United States” rulemaking.

    • Incorporate Climate Science, Modeling, and Adaptation Factors in CWA Permit Review

    NWF urges EPA to place greater emphasis in its strategy on strengthening CWA permit review to ensure consideration of climate change-induced water quality and water quantity impacts. Additionally, the permit review process should take into account the need to protect and restore wetlands and other water resources for climate adaptation and carbon sequestration purposes.

    EPA acknowledged in its National Water Program Climate Strategy that climate change will cause several threats to water quality such as changes to ocean chemistry that alter aquatic habitat and fisheries, warming water temperatures that change contaminant concentrations and alter aquatic system uses, new patterns of rainfall and snowfall that alter water supply for drinking and other uses and lead to changes in pollution levels in aquatic systems, and more intense storms that threaten water infrastructure and increase polluted stormwater runoff. Climate Strategy at ii.

    In addition, EPA found that more extreme water-related events — such as more frequent and more intense storms — will have negative water quality impacts by causing more intense flooding and other events that result in high flows, increased sediment and erosion, and a resulting increase in nutrients, pathogens, and toxins entering waterbodies. Id. Temperature increases will also change aquatic biology, disrupting aquatic system health and in certain waters will create conditions suitable for the establishment of invasives and non-indigenous species at the expense of existing species. Id. at ii-iii. EPA has found that climate change will: displace shore lines, change flow rates in streams and lakes; change the size of streams and wetlands; and result in other disruptions relating to the flow, quantity, and presence of water in many of our waters.

    CWA permit review by EPA, the Corps, and the States should be strengthened to require consideration of:
    o current and predicted future climate change-induced alterations
    o changes in precipitation and their effect on the magnitude and timing of runoff
    o increased pollutant loads flushed into waters from failing or overwhelmed waste management systems
    o altered water temperature
    o altered flow regimes
    o altered water levels including sea-level rise

    CWA permit review should also account for the increased importance of maintaining wetlands and headwater streams for their critical climate adaptation and sequestration functions. These considerations must be accounted for in the issuance of both NPDES and 404 permits, and in the approval of TMDLs and nonpoint source cleanup programs, such as grants under Section 319 of the CWA.

    • Avoid Draining, Dredging, and Filling of Wetlands, Lakes, and Streams

    Clean Water Act section 404 and the EPA and Corps section 404 permitting regulations, the “404(b)(1) Guidelines,” are among the best tools EPA has to preserve and restore healthy watersheds. EPA is responsible for ensuring that the Corps’ 404 permitting decisions comply with the 404(b)(1) Guidelines. Key among the Guidelines’ permitting standards is the emphasis on wetland impact avoidance and the prohibition against dredge and fill discharges in wetlands and other waters of the U.S. where there is an environmentally preferable practicable alternative. The Guidelines presume that practicable alternatives exist, particularly for non-water dependent activities.

    A reinvigorated emphasis on wetland impact avoidance is essential to achieving EPA’s laudable key action to “Protect What You Have – Increased Focus on Protection of Healthy Waters.” This renewed emphasis on avoidance is one CWA tool that must not be compromised in the name of “partnerships,” “market-based incentives,” “mitigation” or even “restoration” where the underlying projects being promoted are, at base, altering natural habitats for development purposes. Non-water-dependent development has no place in nearshore coastal waters, rivers, lakes, wetlands and floodplains. Given the threat that development poses to healthy waters, a renewed emphasis on practicable alternatives to dredging and filling wetlands and other waters should be explicitly addressed in the Clean Water strategy. The added threats and challenges of climate change only underscore this common sense principle. EPA should work with the Corps to reinvigorate the emphasis on avoidance and practicable alternatives in 404 permit review, and EPA should use its 404(c) “veto” authority as necessary to enforce this aspect of the 404(b)(1) Guidelines.

    • Close CWA Loopholes that Allow Mining and Other Waste Dumps in Rivers, Lakes, and Wetlands

    NWF strongly supports EPA’s strategy to “use the full suite of CWA tools to protect high-quality streams from destruction and degradation caused by mining activities.” Draft Strategy at 6 (Key EPA Action). In particular, we urge EPA to move expeditiously to close two regulatory loopholes in the Clean Water Act that allow large mines to dump their tailings and other wastes directly into the nation’s rivers, lakes, and wetlands without meeting the Act’s water quality standards. These loopholes undermine a main purpose of the Clean Water Act – to stop using waters as waste dumps.

    The first loophole is the result of the 2002 revision of the CWA regulations defining “fill.” Under the current definition, EPA and the Corps treat the discharge of tailings from hard rock mines and overburden from surface coal mines as fill material subject to Section 404 rather than regulating these discharges as the disposal of industrial wastes. For hard rock mining, the practical implication of this regulatory change is that toxic mining wastes discharged into waters are no longer governed by the CWA program designed to regulate these discharges and are not subject to the strict pollution standards adopted by EPA in 1982. For coal mining, the consequence of this loophole is equally alarming. Coal companies across Appalachia have relied on the loophole to justify burying approximately 2,000 miles of mountain streams with overburden from surface coal mines. NWF urges EPA and the Corps to revise their regulatory definitions of fill to exclude waste disposal.

    The second CWA loophole is found in EPA and Corps regulations that exclude “waste treatment systems” from the definition of “waters of the United States.” Mine developers, relying upon the waste treatment system exclusion, have obtained Section 404 permits authorizing them to build dams across the mouths of valleys. The mining company is then allowed to dump its wastes into the rivers, lakes, and wetlands behind the dam because they are considered part of a “waste treatment system” rather than “waters of the United States.” The use of this exclusion by mine developers has resulted in the wholesale destruction of these ecosystems and harmed the people, fish, and wildlife that depend upon them. EPA expressly limited the exclusion to manmade bodies of water in 1980. To make full use of CWA tools to protect healthy watersheds, NWF strongly encourages EPA and the Corps to close this loophole and bring consistency and clarity to the waste treatment system exclusion by revising their regulations to restore EPA’s 1980 clarification that the waste treatment system exclusion applies only to manmade bodies of water which were not created in waters of the United States or impoundments of these waters.

    • Increase Protection of Healthy Watersheds

    NWF strongly supports EPA’s strategy to work with States to increase protections for healthy watersheds and the following strategy statement at 5:

    Healthy watersheds provide our communities with drinking water, recreational opportunities, environmental benefits and services, including clean water for healthy aquatic ecosystems, habitat for fish and wildlife, and better resilience against storms and floods, climate change and future land-use changes.

    We also strongly agree with EPA’s pragmatic recognition that protecting healthy watersheds is “a far more cost effective approach than cleaning up a waterbody after it has been polluted.” Draft Strategy at 3, 5. Healthy watersheds protection also provides the foundation for successful long-term water quality restoration.

    We urge EPA to take the strategy a step further and work across federal and state agencies. This will ensure that aquatic ecosystems are protected holistically as they function in nature, rather than through a piecemeal approach. This healthy watershed approach needs to be based on a systems-approach that uses current state-of-the-science and practice in protecting watersheds as systems: biota, habitat, and processes (e.g., in-stream flow). For example, green infrastructure must be implemented to protect watersheds as systems for both aquatic ecosystem protection and source water protection. This holistic approach must not be manipulated to allow otherwise impermissible impacts to occur in one area of the watershed based on the often unsubstantiated claim that mitigation or restoration elsewhere in the watershed will achieve net water quality benefits overall.

    Toward this end, NWF supports EPA’s key action to develop a common set of comprehensive metrics and the latest state-of-the-science, peer-reviewed methods to identify and assess healthy watersheds across states, working in conjunction with other Federal agencies. We further support the use of these assessments to help States set priorities and implement watershed protection programs. Draft Strategy at 5-6 (Key EPA Action).

  30. September 17, 2010

    WaterLegacy is a non-profit organization formed to protect Minnesota water resources and the communities who rely on them. We appreciate the EPA’s efforts to develop a “Coming Together for Clean Water” Strategy to protect and restore our nation’s lakes, streams and coastal waters and commend EPA Administrator Lisa P. Jackson for placing a priority of protecting America’s waters.

    We would request that WaterLegacy be placed on an electronic contact list for future work on this Strategy. We have several brief comments on issues we would like to see in the Clean Water Strategy:

    1) Define discharge of overburden, waste rock and tailings from hard rock sulfide metals mines as disposal of industrial wastes. There is ample scientific evidence that these materials increase sulfuric acid in receiving waters, leach metals with high aquatic toxicity such as copper, nickel and zinc, release metals such as arsenic which may have adverse impacts on human health and increase mercury in fish both due to direct releases and impacts of sulfates on mercury methylation. Definition of these mining materials as “wastes” would permit analysis of appropriate methods of waste disposal as well as evaluation of pollution impacts of discharge.

    2) Clarify and narrow the exclusion of “waste treatment systems” from the definition of “waters of the United States.” Mine developers have claimed that rivers, lakes and wetlands impounded behind a dam are excluded from regulation, potentially laying waste entire ecosystems. Pit lakes and other manmade bodies of water including constructed “treatment” wetlands resulting from mine development should also be considered “waters of the United States,” particularly if they are hydrologically connected to wetlands, streams and rivers that are navigable waters.

    3) Reflect explicitly in rules that NPDES permits are required for discharge to groundwater that is hydrologically connected to surface water. Where hard rock mining is concerned, require sufficient and objective hydrological examination of mine pit, waste rock and tailings locations so that impacts to surface water cannot be minimized through disingenuous claims that groundwater is unconnected to surface water.

    4) Make it an EPA priority to identify aquatic resources of national importance (ARNI) in and around areas targeted for hard rock mining. Evaluate functional values of wetlands, vegetated shallows and other special aquatic resources, impacts on habitats, municipal water, flood control and fisheries as well as the importance of waters in tribal, state, and federal codes and regulations and in international treaties. Designation of ARNI should require a higher level of scrutiny both within the EPA and at the Army Corps of Engineers when any project is proposed that could adversely impact an important aquatic resource.

    5) Explicitly recognize that that hard rock mining, particularly in water-rich environments, poses a unique and substantial risk to wetlands and freshwater resources. As with mountaintop coal mining, there may be hard rock mining projects where wetland and watershed degradation require EPA exercise of jurisdiction under Section 404(c) to veto issuance of dredge and fill permits by the Army Corps of Engineers. This authority is particularly critical in light of the EPA’s proposed increased strategic focus on “protection of healthy waters.”

    6) If water quality trading offsets are contemplated to improve clean-up of impaired watersheds, the EPA should explicitly state that no offset programs shall allow any exceedances of standards for toxic, bioaccumulating, or regulated substances or any localized degradation of streams, wetlands, rivers, watersheds, or receiving bodies of water and sediment.

    Once again, WaterLegacy appreciates the EPA’s initiative to develop the Coming Together for Clean Water Strategy and the opportunity to comment. We would appreciate if our counsel submitting this comment, Paula Maccabee, could be placed on an electronic notification list for future actions in connection with this Strategy.

  31. September 17, 2010

    The Gulf Restoration Network (GRN) is vitally concerned with the level of nitrogen (N) and phosphorus (P) pollution which is affecting the Mississippi River, its tributaries, the Gulf of Mexico, and fresh and coastal waters of Louisiana, Mississippi, Alabama, Florida, and Texas.

    For this reason, we are extremely interested in further developing the portion of the draft Strategy that calls for EPA to “work in partnership with states to better manage excess nutrient pollution in surface waters and promote state accountability frameworks that include publicly-available, science-based, state nutrient reduction implementation activities that are watershed-based and have locally-binding mechanisms to achieve the reductions.” (p. 3) GRN believes that such an accountability framework should include at least the following:

    A clear statement that all 50 states should have numeric N and P criteria within a reasonable time; we suggest no later than December 31, 2015; and a statement that EPA will begin work in early 2013 on developing N and P standards for any state that has not developed approvable N and P standards for itself unless the state is taking alternative effective actions to control N and P.
    The alternative effective actions should include:
    + Writing water quality based effluent limits into its NPDES permits using state narrative standards (e.g. “waters of the state shall be free from nuisance algal growth”),
    + listing waters as impaired under Section 303(d) by nitrogen and phosphorus using narrative standards, and developing TMDLs for nitrogen and phosphorus with implementation plans,
    + Putting technology based limits in NPDES permits for sewage treatment plants, urban stormwater runoff and other point sources to the extent possible,
    + Using antidegradation rules to prevent unnecessary new or increased discharges of N or P,
    + State controls on lawn fertilizer and automatic dishwasher detergent with P,
    + Developing, issuing, and enforcing MS4 and stormwater construction permits with numeric nutrient limits, and
    + Effective state programs to control nonpoint pollution, including that from CAFOS, AFOs and row crops which should include targeted programs to reduce pollution from farm fields and provisions that prohibit the worst practices contributing substantial nitrogen and phosphorus pollution.

    Thank you for the opportunity to comment on the draft Strategy.

  32. September 17, 2010

    September 17, 2010

    To Whom It May Concern:

    Thank you for the opportunity to comment on “Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water,” released for public comment on August 20, 2010. The Wyoming Department of Environmental Quality, Water Quality Division (WQD) and the Environmental Protection Agency (EPA) have the common goal of wanting to protect and restore water quality within the state of Wyoming. The WQD agrees that water quality restoration and protection will need to be a collaborative effort between the federal, state, and local levels. The following are specific and general comments from the WQD regarding the proposed strategy.

    1. Page 5 “Protect What You Have—Increased Focus on Protection of Healthy Waters”

    The WQD agrees that protection of high quality waters is important and can be significantly more cost-effective than restoring a waterbody after it has been degraded. However, state programs should have the ability to expend funds appropriated to them by Congress under the CWA (Section 319, 106, 604(b)) in the manner they determine is most appropriate for protecting and restoring water quality within each state. The Wyoming Nonpoint Source Program has put significant resources towards developing the required planning documents (TMDLs and watershed-based plans) that will allow us to expend Section 319 funds on much needed, high quality restoration projects. While water quality protection is also important, it needs to be the state’s discretion to balance protection with restoration depending on what is of highest priority within each state. In addition, state programs can best determine the most appropriate watershed scale for a watershed protection initiative. Watershed projects in western states typically operate on a much larger scale (i.e. HUC8) than states in the eastern portion of the nation. Imposing a “one size fits all” scale for this initiative would be inefficient.

    2. Page 6—“Fix What’s Broken”

    This section states that the “…EPA will use the Chesapeake Bay as a demonstration for strengthening total maximum daily load (TMDL) pollution reduction plans and improved monitoring of restoration progress. Success in cleaning up the Chesapeake Bay watershed will be a model for watershed protection in other parts of the country.”

    While the WQD recognizes that water quality pollution in the Chesapeake Bay is an issue of national importance, the WQD remains concerned that activities appropriate for the Chesapeake Bay will be used to determine activities in other parts of the nation where such approaches are not appropriate due to different physical, hydrological, and socioeconomic conditions. The characteristics of the Chesapeake Bay region are significantly different than those of Wyoming. Again, the WQD does not believe that a “one size fits all” approach is appropriate to managing water quality, and consequently does not believe that actions used to regulate and/or guide restoration activities in the Bay area should be applied to other parts of the nation without the opportunity for serious consideration and approval by state management agencies. Forcing regulations and guidance that are not appropriate has the potential to strain relationships that the WQD has worked hard to build with other management agencies and local watershed groups.

    Again, we believe that our goals are the same. The water quality goals contained in the Wyoming Environmental Quality Act are not dissimilar from those of the Clean Water Act. However, the WQD expresses its concern that broad, overly general policies, guidance, and regulations have the potential to limit the state’s ability to preserve and protect its water quality resources in the manner most appropriate to conditions of that state. Furthermore, such strategies should not be proposed without a clear understanding of available financial resources to implement them or without a clear understanding of how success will be measured. Creating yet another unfunded mandate will be detrimental rather than beneficial to protection and restoration efforts.

    State, local, and federal agencies as well as non-profit organizations, local watershed groups, and private individuals and businesses have worked hard to improve water quality within Wyoming. We look forward to a continued relationship with EPA in our efforts to protect and restore water quality. We look forward to receiving your responses to these comments.

    Respectfully Submitted,

    Jennifer Zygmunt
    Nonpoint Source Program
    Wyoming DEQ-Water Quality

  33. September 17, 2010

    These comments are being submitted on behalf of the Southern Environmental Law Center. SELC focuses all of our time and energy on protecting the natural resources of Virginia, Tennessee, Georgia, Alabama, and the Carolinas. As to the Environmental Protection Agency’s Strategy for Achieving Clean Water, we are in close agreement with the comments that have been prepared by the National Wildlife Federation. Rather than provide the EPA with more pages to sift through, we simply highlight some of the NWF comments and provide a little southern perspective in the process.
    Other than Alaska, the South is home to more wetlands than any other part of the country. At the same time, the South will undoubtedly continue to grow. As development pressures threaten the South’s natural resources, wetlands will become increasingly vulnerable. It is imperative that EPA hold true to its stated commitment in the Draft Strategy to “improve and adapt regulations, permitting and compliance/enforcement efforts as key first step to change our current path.” Draft Strategy at 2. In the absence of a statutory change, it is critical that EPA work with the Army Corps of Engineers to draft a regulation that clearly sets forth the bounds of CWA jurisdiction and “restore[s] the CWA protections to wetlands and headwater streams that provide clean water for human and ecological uses.” Draft Strategy at 6.
    In addition, to improving federal wetlands protections, the Draft Strategy also states how EPA aims to “expand on existing partnerships.” Draft Strategy, p. 4. This could be particularly beneficial to southern wetlands. Currently, many of southern states either lack wetlands programs altogether or need more resources to operate the ones that they have. Regardless of how far the EPA and the Corps might be able to go in developing a rule that is protective of wetlands, some wetlands will always be vulnerable. It is on those wetlands that the states need to focus their attention. By developing better partnerships with the states, better state wetlands programs can be developed, especially if EPA is willing to commit to providing financial resources .
    Since five of the six states that SELC covers have coast lines, sea level rise is always a concern. It is for this reason we are very supportive of EPA measures that will further develop science, modeling, and adaptive measures to cope with future changes along the coast. Some estimates provide that the Georgia coast contains a third of the salt marsh on the Eastern Seaboard. At some point these marshes are going to become inundated. Only a small portion of these marshes are going to be able to retreat to higher ground. It is important that EPA work with states such as Georgia to anticipate climate changes problems such as this one and develop plans to address them.
    SELC has also been working in the mountains of Virginia, Tennessee, and Alabama on mining issues. Like NWF, we urge EPA to refine the term “fill material” and clarify the “waste treatment system” exclusion. Because of these loopholes, the landscape in these mountainous regions is being totally and permanently altered and the streams and rivers are suffering chemical, physical, and biological abuses.
    Finally, SELC strongly supports EPA’s commitment to support the use of Green Infrastructure. Unless more rain water is captured and cleaned in rain gardens, roof tops, and artificial swales, we will never be able to effectively address our post-construction storm water problems.
    Thank you for providing us the opportunity to comment on this Draft Strategy.

  34. September 17, 2010

    I am wondering and concerned how EPA intends to integrate On-Site and decentralized wastewater solutions into the wateshed agenda. There is a lot discussed in the Draft EPA Strategy on Clean Water but no mention of the important On-Site sector. This On-Site sector accounts for 25% OF ALL WASTEWATER TODAY AND 30% OF OUR FUTURE NEEDS and is essentially Green and speaks directly to our small and rural community needs. While On-Site is not directly mentioned in the Clean Water Act, the effects of the use of On-site on the local ecology, environment and economies make it a strong watershed participant. Simple adjustments to the CWA (with no new monies) by furthering the capacity development of using appropiate scale On-Site Solutions and Alternatives could energize and renew local watersheds and communities. On-Site Regulators and their Association- SORA have worked well with EPA over the past 11 years but time is now for strenghtening partnerships and bringing On-Site to the Watershed Agenda’s table. I am asking how EPA intends to do this in a measured and progressive way?

  35. September 17, 2010

    I am Gerald Iwan Director of the National Environmental Services Center (NESC) at West Virginia University and Executive Director for the State Onsite Regulators Alliance (SORA). NESC has been providing technical assistance,training and educational materials to small communities nationally on drinking water and wastewater issues and problems for over 30 years. It has also been hosting and providing support for SORA for over 12 years. SORA is a national association of state regulators that have the oversite and state regulatory responsibility for decentralized wastewater systems,technology and services in their respective states. It has state members from all states, tribal representation and representation from Canada.It has board members for each of EPA’s 10 regions. It is a current member and original signatory partner in EPA’s MOU Partnership for Decentralized Wastewater Programs and has for the past 12 years hosted a national annual conference(SORA/COI) where State regulators, members of the decentralized industry and EPA HQ and regional staff meet to exchange information, formulate positions and provide guidance to the USEPA. Our members are intimately familiar with all aspects of contempory wastewater issues and serve as a bridge with their local communities on these issues.
    On behalf of the SORA Board of Directors Iam offering the following comments:

    1. The strategy appears to be comprehensive and ambitious. In light of the fact that many of the items being highlighted have been problematic since the implementation of the CWA, we advise EPA to focus on prioritization and concentrate its efforts on those items that will produce results that are quantifiable.

    2. We note the absence of any focus on the decentralized area. Given that as many as 25% of households in the US are dependent on individual septic for wastewater disposal and that a great number of commercial establishments are also dependent on this technology, it seems inappropriate to not include decentralized system issues in EPA’s strategy. This area of public service accounts for a significant portion of infrastructure and economic development support in many small communities and the suburbs of many large cities. Unfortunately it is sorely under funded and only minimally supported by the USEPA. We suggest that EPA give serious consideration to recognizing and supporting state programs in decentralized wastewater management in the final strategy, especially in facilitating ARRA funding for decentralized projects.

    3. We are pleased to note the recognition of the integration philosophy in EPA stretegic plan. This is especially important, as EPA recognizes, in the efforts to protect our watersheds and support efforts at maintaining high quality drinking water sources.We also note the appropriate focus on green technology, energy savings and climate change issues and point out that decentralized technology is compatible with these concepts.

    4. We would like to see EPA recognize the efforts of technical service providers and associations such as SORA and NESC as critical to assisting EPA in implementing it’s mission. Increasing the availability of competitive funding for programs such as SORA and NESC would help the Agency in engaging the general public on important CWA issues highlighted in the proposed strategy.

    Thank you for this opportunity to comment. Our membership stands ready to assist EPA in implementing its strategy and requests that the Agency take advantage of our expertise,experience and the avenue for state and private sector contact that we afford.

    Gerald R. Iwan Ph.D. Executive Director, SORA and NESC

  36. September 17, 2010

    Thank you for the opportunity to comment on EPA’s draft strategy “Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water.” The South Dakota Department of Environment and Natural Resources is the agency delegated the authority by EPA to carry out the Clean Water Act in South Dakota. We offer the following comments:

    The strategy says Adminstrator Jackson hopes “to see a huge leap forward in water quality as we saw in the 1970s after the passage of the Clean Water Act.” EPA needs to remember the key component in those early successes was federal grant dollars, which are not available this time around. The Construction Grants program provided grants for up 85% of the cost for wastewater systems built in the 1970s and 1980s. Many of South Dakota’s smaller communities could not have undertaken the construction projects necessary for compliance with the Clean Water Act without this assistance. Many of these same communities can not afford to upgrade the systems they have now. Enforcement of EPA’s new strategy will not magically make new resources available to these small communities to build new systems or improve their existing systems.
    EPA states that the Chesapeake Bay TMDL will be a model for watershed protection in other parts of the country. While the goals in this TMDL are important and commendable, half of the states involved in this TMDL have stated the goals will be difficult if not impossible to meet. EPA developed this TMDL and has mandated the states comply. This hardly represents a model of partnership and success.
    The strategy says EPA is proposing to use the CWA SRF program (among other sources) to tackle key agriculture pollution challenges. The SRF program has certainly been an effective and successful program for funding important water quality improvements. However, important work remains to be done under the SRF program. Many communities are faced with aging infrastucture and need to continue to access low-interest loans to complete this work. If EPA directs existing SRF funding to agricultural projects, that will make our jobs even more difficult in finding solutions to upgrading aging publicly owned wastewater treatment systems.
    Without more detail from EPA on how these things will be implemented, South Dakota has concerns about the following statements:
    Clarifying the regulatory requirements for satellite systems – This could be termendously challenging to regulate for state NPDES programs, depending on the level of regulation of small systems such as housing developments and bedroom communities.
    Expanding municipal storm water permitting coverage to currently unregulated areas and establish performance standards for storm water discharges from newly developed and redeveloped sites – This sounds similar to the post construction regulations EPA is attempting to force states to regulate through construction permits. An example of this would be using the storm water construction permit to regulate runoff from a parking lot at a mall.
    Develop and implement guidance to assist permitting authorities in establishing protective limits for point sources based on narrative water quality standards for nutrients – EPA is attempting to regulate nutrients by requiring states to include nutrient limits in permits with or without numeric water quality standards in place.
    Strengthen the National Pollutant Discharge Elimination System (NPDES) to significantly reduce pollution entering our waters; for instance, propose a national rule which will streamline the regulatory authority to designate an animal feeding operating (AFO) as a concentrated animal feeding operation (CAFO) – Designation is already allowed by the current rule. Why is this needed? If EPA is going to make changes to the current CAFO rule, we recommend they fix implementation problems caused by the 2008 rule first before attempting other modifications to the federal program. Many states, including South Dakota, already have very strong CAFO regulatory programs. Every time EPA attempts to “fix” the national program, those attempts affect our programs and many times weaken them.
    Audit point source programs (CAFOs, stormwater, water quality based permits) that have significant nutrient reduction potential to assure full CWA tools implementation – Since EPA’s current CAFO rule allows livestock producers to give manure away to circumvent the rule’s requirements, auditing of CAFO programs should not occur until this loophole is addressed.
    The Strategy lacks details on how these new strategies will be implemented which makes it very difficult for states to respond with meaningful comments. However, it appears this new clean water strategy will allow EPA to expand its regulatory authorities and oversight requirements on state programs, which will place unnecessary and unfunded burdens to state delegated programs that already have existing resources stretched thin. Because simply imposing more federal regulatory authorities and oversight is not going to produce any positive results on its own, South Dakota suggests EPA take a wider view and redraft the strategy by incorporating the positive contributions that other entities, to include the states, can bring to the table in pursuit of “Achieving Cleaner Water.”
    Again, thank you for the opportunity to comment.

  37. September 17, 2010

    September 17, 2010

    Re: EPA’s Strategy for Achieving Clean Water

    Dear Assistant Administrator Silva:

    The New England Interstate Water Pollution Control Commission (NEIWPCC), on behalf of the New England states and New York State (the States), respectfully submits the following comments on the public discussion draft of EPA’s Strategy for Achieving Clean Water. These comments were developed using a workgroup process to ensure they represent NEIWPCC’s compact member states’ views and opinions. NEIWPCC’s role is to coordinate and assist the efforts of our compact states to improve and maintain water quality.

    Overall, the States support EPA’s efforts regarding the Coming Together for Clean Water Forum held in April of this year. We must express however, an overarching concern that there is little recognition of the critical role that state and interstate partners play as co-regulators in implementing the Clean Water Act. For the most part, it is the state agencies that are implementing the federal Clean Water Act and that co-regulator status deserves more recognition than is given in this draft. The document leaves the average reader with the impression that EPA is the sole player. With this key point in mind, the collective and individual needs of the states are of particular concern to the Commission and we would like to make the following points about the Strategy.

    Mercury
    One of the key priorities that NEIWPCC has been working on for the last several years is water quality impairments and fish consumption advisories that result from the atmospheric deposition of mercury. NEIWPCC has worked with its member states on the Northeast Regional Mercury TMDL (EPA approved – December 2007) and the CWA Section 319(g) Conference which followed. Evident in these efforts is the fact that there is not nearly enough coordination that goes on at the state or federal level on cross media problems. EPA’s draft strategy stresses the inclusion of more integrated problem solving. This integration must be multi-media in nature and should take into consideration impacts of the Clean Air Act on Clean Water Act initiatives for dealing with airborne pollutants such as mercury.

    Monitoring
    NEIWPCC’s compact member states concur with EPA that effective water resource management requires reliable information and an informed public. EPA’s Strategy references the National Aquatic Resource Surveys (NARS) as providing the baseline condition of water across the nation and indicates that utilization of NARS will continue for all waterbody types. The States view the current design of NARS as insufficient to meet the strategy’s goal of fixing what’s broken. The information provided by the NARS paints a generic assessment of national water quality which does not convey usable information to states to make management decisions needed to protect and restore water quality. EPA has agreed with the States and Interstates that the NARS should be improved so that the information is usable by states and we think that should be clearly conveyed in the Strategy. In a letter to you dated July 16, 2010 we described NEIWPCC’s work on the biological condition gradient (BCG) approach and our Tiered Aquatic Life Use Manager’s Pilot Project. As noted in that correspondence we remain firm in our convictions that while state water programs are currently built around many of the requirements of the Clean Water Act, often, there is insufficient focus on the biological requirements. The BCG approach has the added benefit of providing managers with a more efficient and comprehensive overall framework for managing the water resources within their state and region while still complying with the CWA goal of restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters. We encourage EPA to continue to support the implementation of BCG in existing state water quality standards.

    Stormwater
    EPA has identified stormwater as a main national source of water degradation. We agree and support the concept that municipal stormwater permits must have more expansive coverage and that green infrastructure techniques ought to be used to reduce the discharge of pollutants. Stormwater is made up of a diffuse system of pollutants that are running off the land, yet despite this nonpoint source characteristic the statutes and regulations that apply are point source driven. In response to the challenge of using CWA §402 to manage stormwater, the States have used innovative tools, such as impervious cover TMDLs. While the States have risen to the occasion to address this problem, we submit that states and EPA nationally should embark on a dialogue on a more appropriate way, to regulate stormwater and further recognize that this may result in the need for a statutory amendment. In the meantime, we need EPA’s continued support and flexibility so that these tools, coupled with a focus on low impact development technologies can be continued to be used.

    In addition, in New England, there are a unique set of circumstances that will require more detailed attention from EPA moving forward. Namely, residually designated permit approaches have been invoked through litigation or prerogative in Vermont, Maine, and Massachusetts. This process has evolved differently in each of those states, yet leaves all of the Northeast states with a whole new set of questions related to antidegradation, stormwater permits and TMDLs. Here, consistent with EPA’s strategy, we ask that careful consideration be given to the integration of these efforts as we all move forward on this complex issue.

    Watershed Management
    It makes sense to use the Chesapeake Bay, a watershed impacted by point and nonpoint sources, upstream contributions, atmospheric deposition, and increasing nutrient and sediment problems as a demonstration for strengthening TMDL implementation plans. However, the Chesapeake Bay is a politically charged watershed and has received significant funding resources along with a Presidential Executive Order that will help to ensure its success. The Northeast states support use of new or non-traditional funding sources to help with targeted nutrient reduction strategies. We respectfully remind EPA that there very important watersheds in the Northeast that could also benefit from this kind of innovation, for example Long Island Sound and Lake Champlain are large complex, multi-jurisdictional watersheds that need to focus more on nonpoint sources of nutrients. Market-based tools like trading are fully supported for the Chesapeake, Long Island Sound and other appropriate areas. EPA must also begin to recognize that in highly-populated watersheds which are common in the Northeast, there must be a better connection between watershed management goals as related to meeting designated uses and attainability of those goals. In addition to irretrievable changes in land cover, climate change forces have further altered the definition of ecosystem integrity and designated use definition as conditions shift towards a new normal. That being said, we must be mindful of smaller intrastate watersheds that are just as valuable and share equally complex problems related to nutrients and on a global scale, we also recognize that watershed management has to evolve to prepare for the impacts related to climate change.

    Funding
    A documented growing need to restore and upgrade the nation’s wastewater and drinking water infrastructure continues to exist. In March 2009, EPA released its most recent Drinking Water Infrastructure Needs Survey and Assessment. The EPA projected that the total nationwide drinking water infrastructure need is $334.8 billion over 20 years (2007-2027). This follows a January 2008 report showing the documented, not just projected, publically owned wastewater infrastructure need of $202.5 billion over a 20 year period, an 8.6 percent increase from the previous estimate.

    Federal fiscal year 2010 saw improvement in the level of funding for the State Revolving Fund (SRF) for both Drinking Water and Wastewater, over that of several prior fiscal years. Included for the Drinking Water SRF was $1.387 billion and $2.1 billion for the Clean Water SRF. This federal funding capitalizes state clean water and drinking water loan programs which in turn fund water quality protection projects for wastewater treatment, nonpoint source pollution control, and watershed and estuary management, as well as funding public water system infrastructure improvement projects. This funding is critical to helping communities continue upgrading their water infrastructure to meet Clean Water Act and Safe Drinking Water Act requirements with resorting to high user fee increases.

    In addition to improving environmental quality and public health, these funds help put people to work. It is a testament to the need for infrastructure improvements and the efficiency of the program that EPA and the states were able to issue contracts for the $6 billion in SRF funding provided under the Recovery Act within a year on enactment. The Federal government now provides 3% of the funding for wastewater treatment infrastructure down from 78 % in 1978. States and localities are taking on huge burdens to replace aging infrastructure even as further Federal mandates have been placed on the States. There has been tremendous progress made improving the nation’s waters. Reinvestment in wastewater infrastructure must be made before backsliding begins. The Northeast is no exception to these needs. We recommend that EPA work to educate Congress that $5 billion annually should be appropriated for the Clean Water State Revolving Fund for wastewater infrastructure.

    We applaud the Office of Water and its efforts to come up with a comprehensive strategy for achieving Clean Water in the United States. Thank you for the opportunity to offer feedback and congratulations on the direction in which EPA is leading state and local governments as well as the general public. Please do not hesitate to contact me with any questions or concerns.

    Sincerely,

    Ronald F. Poltak
    Executive Director, NEIWPCC

  38. September 17, 2010

    Dear Mr. Silva:

    These comments are submitted on behalf of American Rivers, a national river conservation organization that works to protect and restore America’s rivers for the benefit of people, wildlife, and nature. We believe that this strategy is moving in a positive direction and especially important given the additional stresses placed on our rivers by a changing climate. We urge EPA to focus resources on implementation and enforcement, where appropriate, of these targeted solutions. These comments detail our specific recommendations.

    Protection

    Small stream protection – We commend the agency for supporting this initiative, which is critical to restoring clean water protections under the Clean Water Act (p.6). Given that over 200,000 miles of ephemeral, intermittent, and headwater streams provide water for drinking water supply intakes for 117 million Americans, this recognition is vitally important for protecting public health and the economy, as well as healthy ecosystems. Protecting small streams from development and destruction yield unsurpassed benefits in nutrient and sediment load reductions downstream, and are critical in the face of a changing climate where headwater streams help buffer downstream communities from increased flooding. Legislation or administrative action is necessary to clarify the broad protection of small streams and wetlands under the Clean Water Act.

    Protecting high quality waters – Tier 3 waters represent a key part of the Clean Water Act’s goal to ‘protect’ our nation’s waters, but one that is sorely underused. This is illustrated by the fact that currently only 27 states have waters designated as Tier 3, and of those, some states only have one or two waters designated. Federal policy in this area remains too vague and must be improved to provide impetus for states to designate and protect Tier 3 waters. We support EPA’s efforts to improve Tier 3 regulations (p.6) and recommend that EPA ensure that certain waters, such as Wild and Scenic Rivers, streams and rivers on federally protected land, and ecologically significant waters, are protected using Tier 3.

    Water quality-quantity connection – Healthy flows are essential to healthy watershed and sustainable communities. Reduced flows in rivers (such as when flows are at or below 7Q10 or other low flow parameters used for setting permit limits) whether they are caused by drought, dam operations or development have the effect of concentrating pollutants and presenting increased risks to aquatic life, primary and secondary recreation, drinking water, and industrial and agricultural water use. Flow is fundamental to achieving the goals of the Clean Water Act to protect and restore the chemical, physical and biological integrity of our nation’s waters. American Rivers encourages EPA to examine and, where needed, implement new flow criteria as part of EPA’s Clean Water Strategy. As part of this, we encourage cross-collaboration with the USGS because of their experience and extensive network of gauges throughout the U.S. Doing so could lead to the creation of statistically sound water flow standards for meeting water quality standards.

    Avoidance and minimization – A reinvigorated emphasis on aquatic impact avoidance is essential to achieving EPA’s laudable strategy to protect healthy waters. EPA must not allow the Corps to continue ignoring the first and most important step in the sequencing standard. Avoidance of aquatic impacts must be emphasized and required, followed by minimization. Compensatory mitigation should be used as a third and last resort available only for those impacts that have been demonstrated to be unavoidable.

    EPA Region 4 recently adopted new guidance on Water Efficiency Measures for Water Supply Projects in the Southeast (6-21-10) to be applied in the Clean Water Act §404 permitting process. Recognizing that reservoirs have negative impacts on water quality and the river system as a whole, these guidelines were created “to eliminate or minimize the need for additional capacity before consideration of a water supply reservoir project on a stream or river.” The guidelines outline water efficiency programs and policies that must be implemented prior to or during the permitting of a reservoir. We encourage EPA to adopt these guidelines across all regions to ensure that the least environmentally damaging practicable alternative, most often water efficiency, is implemented.

    Restore Degraded Waters

    Limited use of offsets (p.6) – While we strongly support restoring our impaired waterways, use of trading must be done cautiously to ensure that improvements are actually achieved and not merely taking place on paper. No trading of nutrients should take place unless a state has numeric nutrient criteria in place, providing baseline protection against hotspots.

    Keep it Clean

    Reducing sewer overflows (p.7) – We support EPA’s efforts to increase the use of green infrastructure as part of sewer overflow control plans, and believe that this method of reducing stormwater will cost-effectively reduce sewer overflows in many areas. Public notification is also a key part of keeping waters clean and people healthy – public notification should be required for sewer overflows with the potential to affect public health.

    Reducing post construction stormwater runoff (p.7) – Controlling post-construction stormwater runoff is much-needed to achieve clean water and we applaud EPA for addressing this issue through the stormwater rulemaking and by emphasizing green infrastructure approaches. As part of this rulemaking, we urge the agency to implement strong standards for development and redevelopment to ensure that urban communities have equal access to clean water as suburban communities.

    Drinking water connections (p.8) – We applaud this strategy and recognize the current disconnect between water quality and drinking water supplies. We believe that this outreach process should include information pertaining to the reduction of nutrients entering drinking water supplies using forests as part of a multiple barrier approach to protecting source water. Connecting tap water to local streams is a key challenge to improving water quality.

    Enhance Watershed Resiliency

    Increase green infrastructure (p.8) – American Rivers strongly supports EPA’s plans to promote green infrastructure solutions to stormwater management by including these practices into MS4 permits, CSO long-term control plans, and in enforcement orders and consent decrees. We urge EPA to make these policies clear and consistent across EPA regions. From the neighborhood scale rain garden to the preservation and restoration of natural landscapes such as forests and wetlands, green infrastructure solutions offer communities a wide range of benefits from reduced sewer overflows and energy costs to increased green space and groundwater recharge. Beyond the environmental benefits, green infrastructure approaches can save communities money. For instance, the city of Portland, Oregon spent $8 million to subsidize downspout disconnection for homeowners, saving the city $250 million in hard infrastructure fixes that would have otherwise been necessary. Often more effective and less expensive than traditional stormwater controls, this 21st century approach to stormwater management should be an integral part of EPA’s strategy to enhance watershed resiliency and revitalize communities.

    Smart use of clean water funding (p.9) – We support EPA’s efforts to encourage states to use their CWSRF in a manner consistent with the agency’s sustainability policy that will advance integrated water management. American Rivers is particularly supportive of the continuation of the 20% set-aside under the CWSRF known as the Green Project Reserve (GPR). The combination of green infrastructure, water efficiency, and environmentally innovative projects funded under the GPR provided communities the opportunity to implement alternatives to traditional stormwater management practices. In Douglasville, Georgia, a $300,000 rebate program for homeowners to replace their older toilets with more water efficient models was developed using GPR funding, and the city of Seattle, Washington received $1.54 million for the Ballard Green Streets project to install bio-swales that will manage runoff from 2.6 acres of impervious surface. Funding should be directed to similar projects.

    This type of dedicated funding for green infrastructure, water efficiency, and environmentally innovative projects is critical to providing communities with cost-effective alternatives to managing stormwater runoff and protecting their clean water supplies. EPA should help improve the use of these funds by providing additional technical assistance to states and by having EPA SRF and stormwater staff collaborate on outreach and project review. Further, EPA must revise their GPR guidance to ensure that CWSRF money for energy efficiency is only spent on projects with clean water benefits and make clear that green infrastructure projects are eligible for additional subsidization.

    Climate change and clean water programs – Finally, in line with American Rivers’ comments on EPA’s National Water Program Strategy: Response to Climate Change, we recommend that climate science and data is factored into all permitting and modeling efforts. For instance, it is our understanding that EPA did not model the uncertainties associated with climate when developing nutrient allocations under the Baywide Total Maximum Daily Load (TMDL). Given the predictions of warming waters, the load allocations may well need to be more stringent to meet water quality standards under these conditions.

    Climate impacts have to be integrated into every decision – infrastructure and restoration investments, regulations, and enforcement – because each of these decisions will influence the ability of communities and ecosystems to withstand floods, droughts, water pollution and other climate impacts. Effective adaptation efforts will be of limited value if other important decisions are not made with a mind toward the increasing vulnerabilities brought about through climate change. Scientific uncertainty is a challenge, but rather than waiting for absolute certainty, EPA must act today by adopting the most flexible, scalable and cost effective solutions. In most cases, this means favoring non-structural water management strategies that protect, restore and replicate the natural infrastructure that provides clean water, flood control and many other benefits, many of which are featured as part of this Draft Strategy. All EPA water funding and policies should integrate planning for climate, whether for protection, restoration or clean water infrastructure.

    Thank you for your consideration of these comments.

    Sincerely

    Katherine Baer
    Senior Director Clean Water Program
    American Rivers

  39. September 17, 2010

    It should be a high-priority to support the development of innovative designs and approaches.
    A statement of recommendations from The Water Alliance is as follows:

    Restoring the Water Commons: A National Agenda

    Water is currently managed unsustainably through siloed, big-pipe and linear solutions in water and wastewater infrastructure in cities and towns, in flood control, and in agriculture. Federal subsidies and mandates have reinforced, if not outright locked-in, this approach.

    National leadership is needed to transition water management to a new paradigm of designs and institutions that mimic and work with nature’s design principles: integrated systems, efficiency and closed loops, and adaptation to local context.

    Governments at all levels need to widen opportunities and incentives for sustainability and innovation, and in the long-run, realign legislation and regulations in support of new models, markets, and institutions.

    Short-term Strategies — a series of low-cost measures to facilitate and coordinate better information transfer, including guidance manuals, evaluations of new products and designs, conferences, newsletters, training, and labeling and standard-setting initiatives

    Research, Development, and Pilot Projects — research to explore the centrality of water to planetary ecosystem functions, biomimicry design principles, new technologies, eco-block or neighborhood demonstration projects, economics of complex systems, and use of federal facilities as sites for early adoption

    Incentives — support for creative designs in local communities, in innovative companies and research labs, in schools, military bases, and homes, through EPA’s Clean Water SRF and other infrastructure programs throughout the federal government, through rebates to customers and tax credits for R&D and green investing, and through priority rankings for projects that achieve multiple social and environmental benefits

    Legislative and regulatory reform — development of policies that encourage sustainability innovation, including broadened tools of asset management, enforcement and compliance based on science and adaptive learning, and a search for ways to break down conflicts and impediments among major pieces of federal legislation, including development of an overarching sustainability act.

  40. September 16, 2010

    Thank you for the opportunity to comment on the draft “Coming Together For Clean Water: EPA’s Strategy For Achieving Clean Water.” We appreciate the chance to have input as the EPA revises priorities and reallocates resources in an effort to improve the quality of our nation’s surface and ground waters.

    Our comments generally follow the outline of the draft strategy.

    The EPA proposes two themes to the new strategy: a watershed approach and sustainable communities. The Oregon Department of Agriculture (Department) is happy to see these guiding principles. The Department implements its part of the Oregon Plan for Salmon and Watersheds, a state interagency and multi-partner effort to protect salmon by improving watersheds. For more information visit http://www.oregon-plan.org/.

    As the economy has weakened, so have our rural and agricultural communities. The Department is encouraged by the bid to combine clean water efforts with those to strengthen our communities.

    An important part of Oregon’s agricultural water quality improvement effort is the Department’s connection with each Soil and Water Conservation District (SWCD) in the state. SWCDs serve as the Department’s Local Management Agency (LMA) to provide water quality education, outreach, and technical assistance. Each LMA supports a Local Advisory Committee (LAC). LACs advise the Department in the development and biennial review of their local Agricultural Water Quality Management Area Plan (Area Plan), a watershed-based document and strategy for agriculture to improve water quality. The state provides $5 million per biennium for SWCDs to provide water quality services and support the Department’s water quality management efforts.

    Clean Water Strategies
    Oregon has recognized agriculture as one of many potential contributors to water quality pollution. Agriculture and the Oregon Legislature formalized this recognition through the Agricultural Water Quality Management Act of 1993. The Act created the structure for developing Area Plans and administrative rules developed by a local advisory committee and supported by LMAs, described above, to address water pollution from agricultural activities and rural lands.

    A Path To Clean Water
    We agree that the primary stressors of water quality must be addressed from multiple angles. The Department’s Water Quality Program is an example of multiple resources “coming together.” The program partners with multiple agencies and funding sources. For example, when Department staff make a compliance site visit, we invite staff from the local Soil and Water Conservation District (SWCD). The SWCD staff provides a local face, immediate access to technical assistance to address problems identified during the visit, and potential access to a host of federal, state, and nonprofit organization funds to tackle any problems. If these resources do not result in a cooperative resolution, the Department has regulatory authority including the potential of civil penalty.

    Key Actions for Strengthening Water Protections
    The Department agrees with the concept of integrating climate adaptation, ecosystems marketing, and integrated water resources planning into water quality improvement. The Department has some experience in these areas, though limited due to lack of resources.

    Know what you’ve got – assessement

    Key Actions
    The Department is working with partners statewide, including the Department of Environmental Quality, to obtain additional monitoring in agricultural areas that augment, not replicate, existing data, and help identify agricultural stressors and prioritize responses. We feel EPA efforts should augment data already collected and attempt to fill in the gaps. The EPA can assure this happens by working in partnership with state and local entities such as the Oregon Department of Environmental Quality (DEQ), Oregon Department of Agriculture, watershed councils, SWCDs, Oregon Watershed Enhancement Board, etc.

    Protect what you have

    Key Actions
    Oregon is already at work setting priorities. The Department is working closely with the Oregon Department of Environmental Quality to set priorities identified by Total Maximum Daily Loads (TMDLs). We hope the EPA will provide an active, positive role, and augment limited resources to further identify and implement Oregon’s water quality priorities.

    Fix What’s Broken

    Key Actions
    The Department is working with DEQ to improve TMDL water quality management plans and better integrate them with agricultural water quality management area plans. We hope the EPA will play a positive role in this process, and help augment limited resources for these efforts. Unfortunately, state resources may be further limited with the next state budget in 2011.

    The Department is working with multiple partners to better integrate USDA funds, especially those of the Natural Resources Conservation Service (NRCS) and the Farm Service Agency (FSA). We hope the EPA will play a positive role in these continuing efforts.

    Keep it Clean

    The EPA proposes to “…more fully utilize regulatory tools and enforcement to address a number of water quality challenges. Where problems are identified, EPA seeks to apply the best cost-effective standards available, eliminate loopholes, increase the regulatory universe, and set performance standards through robust modifications to current regulations.” The Department is unclear on what these general statements mean for Oregon. We welcome the opportunity to discuss these with the EPA.

    Key Actions
    The EPA proposes to streamline regulatory authority to designate animal feeding operations (AFO) as concentrated animal feeding operations (CAFO).
    The state presently regulates confined animal feeding operations under a state general permit managed by the Department. Streamlining designation may be useful in some instances but generally will have limited impact on CAFO regulation in Oregon given the existing regulatory structure provided by state statute.

    The EPA proposes to develop NPDES permit requirements to reduce pesticide discharges.
    The EPA has a draft NPDES permit currently under development for pesticide applications made in, over or near, water. The Pesticide General Permit (PGP) will provide the criteria for which Oregon will design the Oregon-specific PGP. The federal and state PGPs must be implemented by April 9, 2011. The Department’s role in this effort will focus on outreach and education of potentially affected parties and compliance monitoring of entities subject to the permit. The Department will work collaboratively with the Oregon Department of Environmental Quality in the development of this state PGP and throughout the implementation of this program.

    The EPA proposes to audit point source programs (CAFOs).
    The Department supports an EPA audit proposal. Historically, the Department has participated in EPA audits that have been on individual operations. We have also invited EPA to conduct an administrative review to help the Department improve efforts. EPA to date has not conducted an administrative review.

    Build for the Future

    The EPA proposes to “… better integrate traditionally siloed areas such as: water quantity, quality, energy requirements, carbon emissions, development and land use at the watershed/aquifer level.” The Department welcomes federal cooperation and support of ongoing state efforts.

    Additional Comments
    This broad strategy document does not address temperature, the priority water quality stressor in Oregon. In fact, several (if not many) Oregon TMDLs use riparian buffers not only as a surrogate for temperature, but for dissolved oxygen, biological criteria, and nutrients. The EPA should consider establishment of riparian buffers over the agricultural landscape as a means to reduce nutrients as well as lower water temperatures.

    Also, water quality monitoring in Oregon is revealing the presence of legacy and current pesticides in rivers and streams. The Department is coordinating with our state and local partners to augment monitoring to better determine the needed response. Pesticides likely enter our waters with runoff, likely using the same pathway as nutrients. The Department proposes that the EPA consider augmenting existing monitoring to help states better understand their pesticide risk and design an adequate response.

  41. September 16, 2010

    As an individual affiliated with numerous clean water/conservation organizations in the Pacific NW and as someone who is an avid salmon fisherman, there are a few comments I would like to make on the Clean Water Initiative Report. Most notably I view these coming priorities through the lens of protecting our NW treasures for future generations. Please for the sake of NW salmon and the clean water they call home focus on the following priorities moving forward:

    * Revise the regulatory definition of “fill” to exclude mining and other wastes. – Make it impossible for mining companies to discharge tailings into our clean water.

    * Revise the wastewater treatment system exclusion so that it applies only to manmade waters.

    Close these loopholes as the Clean Water Act originally intended.

  42. September 16, 2010

    The City of Charlotte Storm Water Services is encouraged by the EPA’s approach to outlining the agency’s intentions. It is a good summary statement of goals and perspectives. However, we would like to make a few comments regarding the content of the Coming Together for Clean Water, Public Discussion Draft dated August 2010.

    In general, we perceived a general trend towards an increase in accountability, consistency and measurability. However, we share concerns with other posters here at this blog about how exactly success will be defined and how an increase in accountability will result in better water quality.

    We are also concerned with the strong emphasis on green infrastructure; particularly the call for inclusion of green infrastructure in consent decrees and judgment orders. While infiltration and evapotranspiration management practices certainly have their place in the stormwater toolbox, we maintain that green infrastructure alone will not result in better water quality and that green infrastructure is just one restoration method available to stormwater managers to use. Certainly, local governments are the best resource in determining the local solution to cleaner water and should have flexibility to prescribe customized solutions. For many geographical areas, infiltration and evapotranspiration practices are not the preferred method for removing pollutants from surface waters. At the very least, a common definition of green infrastructure is needed in our country to clarify that green infrastructure includes use of a wide range of stormwater management controls appropriate for the particular locale or watershed, including stream restoration, extended detention ponds and wetlands, and other structural measures that remove or control the pollutants of concern.

    Respectfully submitted,
    Jennifer Krupowicz
    on behalf of the City of Charlotte Storm Water Services (NC)

  43. John Peterson permalink
    September 16, 2010

    I’d like to see the regulatory definition of “fill” be revised to exclude mining and other wastes. I’d also like the wastewater treatment system exclusion revised so that it applies only to manmade waters.

    In addition, EPA should clarify and restore protections to the nation’s at-risk waters through a “Waters of the United States” rulemaking.

    Finally, the two Clean Water Act loopholes should be closed so as to prevent irresponsible mining in areas with extensive wetlands, streams, and lakes, such as the fragile headwaters of Bristol Bay where the massive Pebble Mine is being proposed.

  44. September 16, 2010

    These comments are submitted on behalf of Prairie Rivers Network, a non-profit, membership-based organization in Illinois with a long history of participation in water quality standards issues and Clean Water Act permitting in the state of Illinois.

    We thank Administrator Lisa Jackson and Assistant Administrator Peter Silva for the Coming Together for Clean Water initiative and for the agency’s recognition of the need for a new “leap forward” in water quality. As you no doubt know the lack of federal regulatory control over non-point sources of pollution and state political and budgetary constraints have stalled earlier advances in clean water. Confusion over the scope of the Clean Water Act and over the proper means of implementing antidegradation policy has also interfered with progress.

    EPA must create stronger programs to control pollution from row crop agriculture and should create incentives for the establishment of effective nonpoint programs.

    The purely voluntary approaches that have been used with regard to most agricultural pollution have failed miserably. The result is that agriculture is the primary source for the nutrient and sediment pollution and habitat loss that the 2010 draft Clean Water Strategy identifies as among the most serious water quality challenges.

    EPA must do more to address nonpoint pollution. Strengthening the “reasonable assurance” requirement of TMDL implementation is a step that EPA can take under its existing authority without delay. In addition, the threat of EPA promulgation of numeric nutrient standards should be used against states that fail to develop effective nonpoint programs.

    EPA and Congress should create incentives for states to do more to control nonpoint pollution using the TMDL program and by providing more federal aid for states with sound nonpoint programs.
    EPA can strengthen antidegradation implementation by amending its regulations to require that state implementation rules include the following:

    A method for ensuring that existing uses will be maintained and protected. Such method should require a site specific assessment of existing uses and specify the necessary steps for fully protecting existing uses not protected by the state’s current water quality standards.
    i) Provisions allowing public participation in antidegradation reviews early enough in the review to allow for meaningful input. In Illinois, public participation is required only during the NPDES comment period, at a time when the major decisions regarding treatment methodologies have already been made.
    ii) A requirement that all economically and technically feasible treatment alternatives be fully considered and documented, including a procedure for identifying and analyzing such alternatives. EPA should also provide much-needed guidance to the states on the meaning of these terms and on how an analysis for economic feasibility should be performed.
    iii) A procedure for performing antidegradation reviews on projects requiring 401 certification. In Missouri, the state has abdicated this role to the Army Corps of Engineers, clearly an unacceptable approach. EPA should clarify that the state water protection agencies have a duty to perform their own antidegradation assessments before issuing 401 certifications.

    EPA can also strengthen antidegradation by eliminating the waterbody-by-waterbody approach. As in Illinois and Missouri, all states should be required to perform Tier II antidegradation analyses on a pollutant-by-pollutant basis. A waterbody-by-waterbody approach that denies Tier II protection because of existing impairments allows and encourages continued degradation. Please consider a revision of 40 CFR 131.12 (a)(1) to require a parameter-by-parameter approach.

    EPA should identify expedited procedures for identifying and correcting state agency actions that violate the Clean Water Act

    Many states are failing to fully implement Clean Water Act requirements. In Illinois, as in many states, the state water protection program is failing to implement an antidegradation program that adheres to the spirit and intention of the federal policy. Existing uses are not being assessed and alternative analyses are often nothing more than paper exercises finding in all cases, a lack of feasible alternatives. States are also commonly allowing discharges of pollutants linked to impairments, and are refusing to include water quality based effluent limits in permits. There is little if any state enforcement against unauthorized discharges from CAFOs and unpermitted residential sewage systems, and we are hard pressed to find a state that actually performs a triennial review.

    EPA should develop an expedited procedure for correcting state programs under 40 CFR § 123 as well as a method of assuming immediate control over state functions when needed to protect water quality.

    EPA should clarify the meaning of waters of the United States and insist on wetland avoidance by vetoing permits that fail to prove absence of practical alternative

    EPA should immediately enact regulations to reinstate the broad scope of the Clean Water Act to cover all wetlands that affect interstate commerce. In tandem, EPA needs to insist that the Army Corps of Engineers comply with the 404(b) Guidelines by requiring all 404 permit applicants to avoid impacts to aquatic ecosystems where a practical alternative to such impacts is available. The clear regulatory requirement to avoid impacts wherever practical has not been enough. EPA can ensure compliance through exercise of its veto authority. Consistent use of the agency’s 404(c) authority will send an unambiguous message.

    Thank you for this opportunity to comment and for your stated commitment to improving our nation’s water quality.

    Kim Knowles
    Water Resources Specialist
    Prairie Rivers Network

  45. September 16, 2010

    September 16, 2010

    To Whom It May Concern;

    RE: Comments on Draft Coming Together For Clean Water: EPA’s Strategy For Achieving Clean Water – Public Discussion Draft – August 2010

    Please find our general and specific comments on the draft EPA Strategic Plan for FY 2011 to FY 2015. Our comments focus on the solutions suggested in the report in response increasing water quality impairment.

    This strategy, in summary, states that despite acknowledgement of significant progress in the regulation of point sources, the rates at which waters are being listed for water quality impairments exceeds the pace at which restored waters are removed from the list. The report further attributes the causes of these impairments to agriculture, stormwater runoff, habitat, hydrology and landscape modifications, municipal wastewater, and air deposition.

    “EPA’s Strategy For Achieving Clean Water” – goes on further to state that to address these impairments, EPA in summary (along with state programs), needs to do the following:

    1) Improve and adapt regulations
    2) Increase permitting stringency with additional requirements
    3) Increase compliance and enforcement efforts
    4) Improvement of assessment and classification of waters
    5) Integrate new technologies and approaches into our clean water programs

    General Comments:

    EPA should be cautious in establishing strategies without accounting for the resources necessary to support these strategies in light of the current economic/funding shortfall nationally, regionally and within states. While we recognize the tasks identified in EPA’s Strategy For Achieving Clean Water were developed to address national imperatives, and that they are synchronized with state and federally approved core functions, our comments focus on the need to adequately resource this important work. Additional funds must be tended to states in order for them to achieve real environmental results. In general, we seek to increase our partnerships with EPA to address the named priorities; however as indicated LDEQ will require significant additional EPA contributions. We suggest EPA resources currently allocated for oversight by states be increased or we fear that the identified goals, thou crucial, cannot be accomplished at the current funding levels. Thus EPA’s Strategy For Achieving Clean Water will become yet another unfunded mandate, full of crucial goals, but devoid of increased or even adequate funding.

    LDEQ’s Water Permits Division is grateful for the opportunity to comment on the draft strategy and we also greatly appreciate the past support which EPA, and more specifically, Region VI has provided. Further we are looking forward to working with EPA on possible further refinements to this document and envision an improved process for meaningful impact over the next five fiscal years. We are also eager for your reply to our comments. Please direct your comments and questions if you have any, to
    Melvin Mitchell, Administrator, Water Permits Division, Office of Environmental Services, Louisiana Department of environmental Quality at 225-219-3013. Mitch.mitchell@la.gov.

    Melvin Curtiss Mitchell Sr.
    Administrator, Water Permits Division
    Office of Environmental Services
    Louisiana Department of Environmental Quality

  46. September 15, 2010

    The Colorado Mining Association is a statewide trade association whose more than 990 members explore for, produce, and refine metals, coal, industrial minerals, and oil shale, and also provide goods and services to the mining industry. We appreciate the opportunity to offer the following comment on EPA’s Strategy for Achieving Clean Water.

    The draft strategy is rather vague, and contains many buzzwords such as “holistic,” “synergistic” and “green infrastructure” which, while conveying a broad concept, fail to provide clear actions to form a strategy. What does appear clear is that EPA’s future actions are likely to result in significant additional costs for struggling industries, states, and municipalities whose budgets are at the breaking point.

    It is important that any proposed actions to add to or alter the regulatory scheme assure that:

    – the actions attack specific documented problems
    – are based on defensible science
    – are technically and economically attainable
    – are cost-effective
    – are effective in achieving actual water quality improvement
    – can be implemented by States, in light of their ongoing financial challenges

    Water quality conditions vary widely among the states, and states require flexibility in addressing those problems they find most pressing. Strategies also must be flexible to address states’ unique concerns in a realistic and predictable manner.

    Once again, we appreciate the opportunity to comment.

    Sincerely,
    Dianna L. Orf
    on behalf of the Colorado Mining Association

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