CHAPTER 10 THE CHANGING ROLE OF FEDERAL AGENCIES WITH RESPECT TO WATER QUALITY REGULATION

• Jurisdiction: United States

Water Quality & Wetlands Regulation and Managment in the Development of Natural Resources
(Jan 2002)
CHAPTER 10
THE CHANGING ROLE OF FEDERAL AGENCIES WITH RESPECT TO WATER QUALITY REGULATION
Brian R. Hanson ¹
Baird Hanson Quinn LLP
Boulder, Colorado

The role of federal agencies with respect to water quality regulation continues to change in some respects while maintaining a frozen quality in others. For time in the early '80s it may have appeared the big issues were resolved. It seemed that the NPDES program and 404 dredge and fill programs had reached a level of predictablity that allowed persons seeking permits to proceed without controversy. In those??but heady days, seeking a "no discharge" NPDES permit was seen as an easy insurance policy against more frightening regulatory events. NPDES permitting was relatively routine, and, while certainly an additional cost, it was not typically sufficiently large to raise significant questions about whether to include a "no discharge" permit as part of the project permitting.

But now we find ourselves struggling with changes to the most basic terms of the primary federal water quality legislation, the Clean Water Act: We are no longer sure of the "navigable" waters subject to the Act; we have difficulty settling on which "dredging" or "filling" activities are regulated by the Act; and we are left with the entire mission of some words, such as "wetlands," central to our understanding of the Act. Certainly, much of this has arisen because the jurisdiction of clean Water Act programs have been subject to limitations imposed by the courts; however, federal agency efforts to resist such changes, as well as to impose ever more stringent limitations on NPDES permits, have substantially increased the nature of the uncertainty and the "stakes of the game."

For federal agencies protecting water quality, the job remains daunting in the face of increasing human populations moving further into areas once left to non-intensive uses; funding cutbacks; political deadlock; contentious citizen and industry groups; and the inherent nature of preserving anything as nebulous as "water quality" in a changing world. Consequently, federal agencies and citizen groups use the tools given then and apply those tools as far as politics and the courts Will let them. Persons seeking permit and practitioners assisting them frequently witness the consequences of these efforts as Federal agencies and citizen groups strain to address water quality through new interagency regulatory policy initiatives, rulemakings, NEPA comments, inventive CWA lawsuits and programs under the Safe Drinking Water Act that look and feel like programs designed for other purposes.

The challenges confronting federal agencies and citizen groups and the various ways agencies and groups try to rise to those challenges present opportunities ft o the natural

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resource industry and regulated community, which, for the moment, have better entrees into the executive branch than they have had for many years. If industry can find ways to offer viable mechanisms to help federal agencies protect water quality, without unnecessarily expanding CWA regulation, industry will better position itself to withstand the inevitable challenges from some citizen groups and the shifting winds of political fortune. After all, industry favors clean surface and ground water and wants to see water quality protected. Industry now has a unique opportunity to melt some of the conflicts with federal agencies regulating water quality and open the way for much needed reform of federal water quality laws and policy.

This paper explores how federal agencies, such as the Bureau of Land Management, Forest Service, and Environmental Protection Agency, are working with the Clean Water Act,² Safe Drinking Water Act,³ and other federal laws to protect water quality. The paper discusses how efforts to change federal agency water quality roles have failed and how they have succeeded and the consequences of those efforts on persons and practitioners subject to federal water quality laws.

1. Recent Collaborative Federal Agency Efforts to Protect Water Quality

For a period late in the Clinton Administration, it seemed as if the federal agencies were going to collaborate effectively on interagency initiatives to protect water quality. The two most obvious CWA examples were the Clean Water Action Plan and the Unified Federal Policy for a Watershed Approach to Federal Land and Resources Management. Neither of these efforts made the transition into the Bush administration. Both have to be regarded, for now anyway, as ineffective efforts to change the roles of federal agencies protecting water quality.

1.1. Clean Water Action Plan

The Clean Water Action Plan ("Plan")⁴ was developed by the Clinton Administration in 1998 to reconceptualize governmental efforts to enhance water quality. The Plan committed the Clinton Administration to over 100 major actions, some of which occurred, to change federal, state, tribal, and local approaches to water quality protection. The Plan established partnerships with federal and state agencies, tribes, communities, businesses, and citizens to build upon and supplement existing water quality programs, and relied on "four key tools": a "watershed approach," "strong federal and state standards," "natural resource stewardship," and "informed citizens and officials."⁵ Each of these "tools" entailed many component actions.

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1.1.1. Watershed Approach

Since 1972, federal water quality protection efforts have focused on individual sources, with particular emphasis on "point sources." The Plan pushed the envelope of statutory authorization by focusing on the remaining water pollution problems associated with nonpoint sources, such as "runoff from urban and agricultural lands and facilities such as animal feeding operations and mines."

The Plan anticipated that the federal government would continue working with states, tribes, and communities to develop lists of impaired waters, define linking water source water protection areas, and take other actions that led to development of a "unified watershed assessment."⁶ These "unified watershed assessments" were to be used to develop "watershed restoration action strategies" that, in turn, were to identify am resolve "the most important causes of water pollution and resource degradation" and then take action to solve those problems.

1.1.2. Strong Federal and State Standards

The Plan called for federal, stated and tribal governments to revise water quality standards to make water quality protection programs more effective. After over 13 years of relative inaction on water quality standards and criteria, the federal government issued an extraordinary advance notice of proposed rulemaking ("ANPRM") about revisions of the federal water quality standards and about current EPA policy on a plethom of water quality issues.⁷ In the ANPRM, EPA discussed the statutory and regulato??history of the federal water quality standards and framed numerous issues for national??ebate. These issues include designating water uses, water quality criteria, antidegradation implementation, mixing zones, applying water quality standards to wetlands, and the independent application policy. EPA also has tried to help bring order to the criteria that underlie federal, state, and tribal water quality permitting and regulatory program by publishing a compilation of national recommended water quality criteria.⁸

The renewed focus on water quality standards at the same time EPA reaffirmed water-quality based permitting could have a pervasive effect on many Clean Water Act programs: Water quality standards provide a foundation for the Total Maximum Daily Load ("TMDL") program, National Pollutant Discharge Elimination System ("NPDES") permitting, nonpoint source control, Wetlands protection, and other water resources management efforts.⁹

However, EPA has not taken action beyond the advance notices of proposed rulemaking with respect to either the ANPRM or the compilation of national recommended water

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quality criteria. EPA has not proposed the rules, and does not offer anticipated proposal dates in its most recent Semiannual Agenda of Regulatory and Deregulatory Actions.¹⁰

1.1.3. Natural Resource Stewardship

The Plan committed federal natural resource conservation and environmental agencies to focus their expertise and resources to manage resources to enhance water quality. Among the natural resources subject to the Plan were wetlands. The Clean Water Action Plan built upon the Clinton Administration's commitment to wetland protection and enhancement.¹¹ For the first time, the Plan committed an administration to a net gain of 100,000 acres of wetlands each year, beginning in 2005, rather than merely slowing the decline of wetlands or avoiding a net loss of wetlands. While the Plan did not abandon use of command and control techniques to protect wetlands, EPA and the Corps of Engineers committed to using new incentives, such as pursuing restoration and mitigation of wetlands as remedies for section 404 violations or encouraging "supplemental environmental projects" that restore wetlands as remedies in enforcement actions not involving Section 404.

1.1.4. Informed Citizens and Officials

EPA and the other federal agencies implementing the Plan committed to developing "reliable information about water quality conditions and new tools to communicate information to the public." The United States Geological Survey was to lead federal efforts to help states and tribes improve monitoring and assessment of water quality. EPA was to use the Internet to advise the public about the Index of Watershed Indicators (IWI) and other tools to communicate meaningful information. The Plan envisioned new types of data being collected and arrayed for public review, including...