WATERSHED APPROACH TO SITE REMEDIATION: CLEAN WATER OR QUAGMIRE?
| Jurisdiction | United States |
(Jan 2002)
WATERSHED APPROACH TO SITE REMEDIATION: CLEAN WATER OR QUAGMIRE?
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
Salt Lake City, Utah
INTRODUCTION
This article is an overview of the watershed approach and its use as a t??1 to facilitate site remediation. Part I discusses the development and general principles oft??e watershed approach. Part II addresses the watershed approach in conjunction with remediation of abandoned mine lands. Part III describes the practical application of the watershed approach to remediation of watersheds impacted by mining. Finally, Part IV analyzes t??e advantages and disadvantages of using the watershed approach to facilitate site remediation.
I. THE WATERSHED PROTECTION APPROACH
A. Background
During the past twenty years, significant improvements have been made in water quality throughout the United States.1 These improvements have been achieved in large part by focusing on specific sources of pollution, or in the case of ground water, by preventing contamination from hazardous sites.2 However, many believe that these steps failed to address more subtle, chronic problems that affect water quality. In fact, progress made in eliminating point sources revealed that contamination resulting from non-point source discharges and habitat degradation now accounts for most of the Nation's ] remaining water quality problems.3 In addition, because EPA and state regulatory agencies organized their water programs around discrete activities such as permitting, monitoring, enforcement and nonpoint source control, "success was often" measured in terms of program activities—
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numbers of permits, compliance orders, inspections, or samples.4 Accordingly, EPA felt that "[a] comprehensive approach to water resource management [was] needed to address the myriad of water quality problems that exist today from nonpoint and point sources as well as from habitat degradation."5 The comprehensive approach endorsed by EPA is the "Watershed Protection Approach."
B. General Principles of the Watershed Protection Approach
In October 1991, EPA announced its official endorsement of the watershed protection approach. The goal of the watershed protection approach "is to reorient EPA and other Federal agency, State, and local programs to address watershed protection in a holistic manner."6 In essence, the watershed protection approach is "a coordinating framework for environmental management that focuses public and private sector efforts to address the highest priority problems within hydrologically-defined geographic areas, taking into consideration both ground and surface water flow."7
It should be emphasized that the watershed approach is a "coordinating framework" or, as its name states, an "approach." It is not a regulatory program, nor was it intended to create an additional layer of oversight. In fact, Robert H. Wayland III, Director of the Office of Wetlands, Oceans and Watersheds, emphasized this point in his cover-sheet memorandum attached to the original Watershed Protection Approach Framework Document. The memorandum draws attention to the fact that the effort was being described as the Watershed Protection Approach, rather than the original Watershed Protection Initiative. This is to underscore that by endorsing this framework, EPA is not trying to "levy a new requirement on Regions or States"; instead, the watershed protection approach is about "how" the work is to be undertaken.8
Adoption of the watershed approach has recently gained momentum. On October 18, 1997, Vice President Gore directed the U.S. Department of Agriculture ("USDA") and EPA to develop an action plan to improve water quality throughout the nation.9 Forming the core of the Clean Water Initiative announced by President Clinton in his 1998 State of the Union Address,10 the Clean Water Action Plan ("CWAP") was developed based on the work of interagency workgroups and comments from the public and other federal agencies. The watershed approach is one of the key tools around which the CWAP is built.11 The effort to develop the Unified Federal Policy for Ensuring a Watershed Approach to Federal Land
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and Resource Management also stems from the CWAP.12 The public comment period on the proposed unified policy ended May 24, 2000.13
Because the watershed approach is not itself a program, it may be adapted to fit the needs of specific problems, programs and objectives. EPA recognizes that each state or tribe may apply the watershed approach differently, and has committed its If not to prescribe the way in which the watershed approach is employed. Rather, EPA supports watershed approaches that are tailored to the needs of the jurisdictions14 and site-specific goals. However, every watershed approach is to be based upon these guiding principles: (1) geographic focus; (2) partnerships; and (3) sound management techniques based on strong science and data. Each of these principles is discussed in more detail below.
1. Geographic Focus
The watershed approach is based on the idea that the improvement of water quality is best achieved at the watershed level, rather than by focusing on discrete sources of pollution or specific contaminated sites. In other words, "the watershed protection approach begins with a focus on the condition of and threat to a watershed. 15 A watershed is a hydrologically-defined geographic area, which generally includes both the water resources (e.g., streams, rivers, lakes, aquifers, etc.) and all of the land from which the water drains. "Because watersheds are defined by natural hydrology, they represent the most logical basis for managing water resources.'16
Consistent with the general flexibility of the watershed approach, the geographic focus within the approach is also flexible. A particular watershed approach nay be organized around a large scale watershed (e.g., river basins), a small scale watershed (e.g., creek or rivulet) or anything in between. In an average size state, there are ten or more major watersheds, which in turn may be made up of several hundred moderately-sized watersheds or several thousand small watersheds.17 The size of the geographic management unit may be tailored to address the problems or objectives associated nth a particular watershed project.
2. Partnerships
The watershed approach has been described as "community-based environmental protection using watershed or hydrologic boundaries to define the problem area."18 The partnership principle focuses on the idea that multiple stakeholders must work together to
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ensure a balanced approach between the various competing interests in a watershed.19 One of the goals associated with this principle is to make sure that the stakeholders most affected by decisions are well-informed and are afforded the opportunity to participate throughout the planning and implementation process.
Thus, people who live, work and play in the watershed (e.g., states, government entities, users of resources, environmental groups, etc.) are called upon to participate, to identify and buy into goals, to select priorities and to assist in the selection and implementation of the solutions.20
3. Sound Management Techniques Based on Strong Science and Data
The watershed approach seeks to employ sound management techniques based on strong science and data to achieve real results. Three key elements of employing sound management techniques are: (a) targeting priority problems; (b) developing and implementing integrated solutions; and (c) measuring success.
a. Targeting Priority Problems. One of the goals of the watershed approach is to target priority problems so as to achieve the greatest result with the limited resources available. Priority problems are those "posing the greatest risk to human health, ecological resources, desirable uses of the water, or a combination of these."21 In order to target these priority problems within a watershed, it is necessary to assess and characterize that watershed. Stakeholders cooperate to monitor and collect scientific data on the watershed so that identification of priority problems is accurate, documented and reliable.
b. Development and Implementation of Integrated Solutions. In developing sound management techniques that create and implement effective solutions, stakeholders take advantage of the diverse experience and expertise of the various stakeholders involved. Any action implemented in the watershed "should draw on the full range of methods and tools available, integrating them into a coordinated, multiorganizational attack on the problems."22
Coordinated management activities are used to leverage the limited resources of numerous federal, state and local agencies and other stakeholders in an effort to effect remediation of the watershed. Some of these agencies include those responsible for wetlands protection, drinking water source protection, pesticide management, agriculture, navigation and transportation. Involving these agencies is not meant to create an additional layer of oversight,
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but rather to facilitate cooperative implementation of programs processes and procedures.23
c. Measuring Success. One step in the process is for stakeholders to agree on ecological and administrative indicators that will demonstrate progress and attainment of goals.24 Accurate monitoring is vital to measuring progress. The ecological and administrative indicators chosen early in the process are monitored throughout the life of the watershed project, and plates are evaluated and revised as needed.
C. Unique Nature of the Watershed Approach
1. Coordinating Framework vs., Regulatory Program
It cannot be overemphasized that the watershed approach is not a specific regulatory program; rather, it is a...
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