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

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

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.”

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.

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.

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

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

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

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.

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