Cooperative Federalism, Nutrients, and the Cleanudel.edu/~inamdar/nps2007/Hannah_CWA.pdf1500s, when...
Transcript of Cooperative Federalism, Nutrients, and the Cleanudel.edu/~inamdar/nps2007/Hannah_CWA.pdf1500s, when...
CleanCooperative Federalism, Nutrients, and the
Clean Water Act, Three Cases Revisited By: Oliver A. Houck
Presented by: Hannah Scholes
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• Federalism and the CWA• Nutrients and Numbers• Gulf of Mexico• Florida• Chesapeake Bay• Discussion
Outline
Federalism and the CWA
What is Cooperative Federalism? • When national, state, and local governments work
collectively to solve common problems
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History
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“…the policy of Congress to recognize, preserve, and protect the primary
responsibilities and rights of the States in controlling
water pollution”
1948
Federal enforcement restricted, favored state management. Federal
role only to fund, advise, and to call an “abatement conference” when all else
failed
Amendments of 1956, 1961, and
1965
1972
Now established a national program directed by the EPA where the states play “important but subsidiary role.” “A national goal to “restore and maintain”
the national waters”2 goals:
1. discharge of pollutants be eliminated in 12 years
2. water quality protective to fish/wildlife/human recreation be
achieved in 10 years
The Statutory Scheme• Point Sources regulated exclusively by EPA (technological standards not water quality)
• Discharge permits to reflect water quality can only increase treatment, not decrease, and can be
run by state programs BUT EPA regulates, permits, and enforces
• Criteria initially set by EPA and states can establish the uses to which the criteria apply, but
cannot “adopt certain uses” that interfere with the attainment of downstream water quality,
decrease the existing water quality, or anything below anything achievable by additional controls
• States must review their standards every 3 years and submit biennial reports to the EPA
• NPDES Permits and TMDLs
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TMDLs• Gives states the right to “go first”
and for degraded waters in a direction that improves them, with federal approval all along the way
• EPA has allowed weak criteria
• Federal government didn’t trust states to have full responsibility, but wanted them to have an active role= federal control
• TMDL=WLA+LA+MOS
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Nutrients• Main Culprits: Nitrogen and Phosphorous • “One pound of phosphorous can produce from 350 to 700
pounds of green algae”• In nutrient stressed waters, low-oxygen species dominate
and some lakes require a 90% reduction of nutrients (phosphates) in order to recover
• Blooms of cyanobacteria
Relatively EASY and INEXPENSIVE solutions:• Limit fertilizer application• Buffer strips and retention ponds
• States faced with rising water treatment costs, decreasing property values, loss of recreation and tourism, but still resistant to clean up. Why? = The power of the polluters
Numbers• Set a numerical standard like speed limit, BAC, etc.• Enforceable • Lower level state water agencies embrace numerical TMDLs, but higher up the food chain numerical limits
lose support• “…constrain agency authority and the exercise of political power”• They change the way people were used to doing things• Dischargers resist • States resist because they lose authority
So What happened? • EPA finally adressed the problem of nutrients in 1980 by developing numerical criteria for N and P• States urged to adopt own criteria and adopted narrative standards
Narrative Standard? • “no toxic chemicals in toxic amounts.” • Surface waters be free from “oil, scum, and floating debris in amounts that are unsightly”• etc.
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The Gulf of Mexico• State and Federal inaction• In 2008 Gulf Restoration Act called
on the EPA to make a TMDL for whole watershed, stating that it was “necessary”
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• One of the most productive marine ecosystems
• ¼ America’s fisheries, 1/3 migratory waterfowl, ½ remaining coastal wetlands
• Now the largest “dead zone” in N. America (2nd in the world)= 20,000 sq. km
• 31 states discharge into the Mississippi but 6 are the main polluters, and account for over ½ the nitrate and 2/3 the phosphorous (89%-nonpoint discharges--agriculture)
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States had narrative standards.
Prior to 19880 1
Federal government stepped in and EPA established a Gulf of Mexico Program
19880 2
Environmental groups petitioned the government to develop a focused strategy for hypoxic zone.
EPA formed Hypoxia Task Force with intent to have plan by 1999
19940 3
Clean Water Action Plan required EPA to develop numeric criteria within 2 years for all water bodies
19980 4
EPA extended deadline for criteria from 2003 to 2004
EPA-State Nutrient Task force set goal to decrease dead zone to 5,000 sq km by 2015…
20010 5
Environmental groups petitioned against EPA because no work had been done (nutrient loadings increased)
20030 6
Not a single state in US adopted water quality criteria
20040 7
EPA’s Science Advisory Board concluded the Gulf needed to be addressed ASAP
National Research Council declared EPA needed to take a “more aggressive role” (states and federal governments need to water quality standards”. A Mississippi Watershed TMDL was recommended
Environmental groups filed a petition because of lack of progress
20080 8
The Response
Litigation• After 3 years, EPA denied the petition, and the Gulf Restoration Network filed suit
EPA acknowledged health risks and economic risks, but it’s a “daunting management challenge” , so instead wanted to keep collaborating with states
• District Court of Louisiana sided with the EPA
• BUT had to show that their decision to not make a “necessity determination” was valid
• The EPA must meet the requirements of the act- to include water quality standards for pollutants, which they themselves said should be numerical
• But also considered administrative convenience and the risk to future state collaboration
• CWA states that EPA steps in and develops criteria after states attempt it
• States cannot enforce watershed wide TMDL-(February 29, 2016- Supreme Court denied to hear challenge of ruling for Chesapeake Bay TMDL- meaning that EPA could enforce watershed wide TMDL)-EPA must step in order to fulfill CWA requirements left unanswered by the court
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How about now?• Iowa- has no plan to develop nutrient criteria (“not
necessary”) Drinking water polluted with nitrates, and
has had to spend millions of dollars Nutrient reduction based on “voluntary
conservation”
• Illinois now has partial P criteria only for lakes/reservoirs
• Indiana- has abandoned all efforts
• Missouri- has partial N/P criteria for lakes
• Kentucky- failed to submit criteria and stated criteria “may not be the most effective approach”
• These states make up 54% of the nutrient loading into the Gulf
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Florida
Juniper Creek
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After
The Everglades
Before
Everglades Agricultural Area• Home to a sugar industry
• Soil is poor in nutrients, requiring massive nutrient inputs
• Runoff flowing into Okeechobee- in order to divert was funneled into the Park
• 1973 Florida Legislature stated Okeechobee pollution caused by agriculture and tasked the
South Florida Water Management District with the cleanup
• 1987 SWIM- plan to END nutrient pollution in lake in 5 years
• U.S Attorney for Southern District of Florida filed lawsuit against Water Management District
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Lawsuit Results • District stated politicians swayed by sugar industry
• Some politicians not- Lawton Chiles (incoming governor in 1992) tried to establish target of 80% reduction of P,
process for determining WQ standard, and limit discharges from agriculture (Grower’s lawsuit overturned this)
• 1992 Everglades Forever Act (EFA) passed. Stated would meet standards by 2006.
• By 2003 narrative to numeric standards, and if not 10 ppb would apply
• Florida Department of Environmental Protection (FDEP) interpret as don’t do anything until 2006
• 2003 knew they wouldn’t hit 2006 goal, EPA extended deadline until 2016, and polluters can exceed 10ppb under
certain situations
• Everglade’s Miccosukee Tribe of Indians filed suit and won in 2011
• Since then different standards/BMPs being implemented
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1970sWQ issues start to be noticed/documented
1998
FDEP started working with
EPA on numeric criteria
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Need for numeric WQ criteria evident, but dissent statewide EXCEPT from FDEP
2001
2003FDEP projected finish for 2004!
2004FDEP changed
deadline to 2007…
2007FDEP changed
deadline to 2010, EPA approved
2008
EPA proposed criteria
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FDEP proposed changing deadline to 2014, as long
as no one who disapproved of the criteria
Florida Wildlife Federation filed a suit against EPA to
make “necessary determination”. EPA did
2009
2010State given one year to develop their own or adopt EPA’s. EPA’s numerical criteria adopted
Multiple suits from dischargers about “necessity” determination
Trial split• FDEP given ample
time and acknowledged narrative criteria wasn’t working
• EPA had allowed them to just translate harm based narrative into criteria, and EPA’s criteria didn’t fully match that
• FDEP produced standards with heavy input from industry and EPA forced to accept
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Epilogue
• Florida has accepted criteria
• Intermittent and man-altered canals/channels used for water management/irrigation/water
supply, and waters that have “poor habitat” exempt
• TMDL process has obstacles too
• Exemptions exclude most flowing waters in South Florida (3,043 mi), tidal creeks (6,333 mi),
water management canals (11,497 mi) intermittent streams (8,701 mi) and other waters
Epilogue Cont.
Recent Studies show serious impairment, but some studies show level of pollution to different degrees.
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Lakes impaired
90%
80%
Rivers and streams impaired
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The Chesapeake Bay
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• Migratory birds, fisheries, oysters
• Nutrient overloads (primarily agricultural based) caused collapse of resources
• 1970s federal funding identified nutrients as the problem
• 1983 Chesapeake Bay Agreement (MD, PA, VA, DC)
• 1987 Agreement set new target to 40% N/P reductions by 2000 (Chesapeake Bay Program)
• BUT agreement had no requirements or allocations as targets
• 2000- new agreement- postponed cleanup and encouraged local watershed plans. Also required EPA to make sure that the program implemented and achieved/maintained targets
• 2006 GAO found the program not working
• By 2009 DE, NY, WV also involved. EPA announced 2 implementation measures: Bay-wide TMDL and WIPs
• December 2010 Bay-wide TMDL issued (lowered target down from 40% to in 20s). Allocations divided among states
• Executive Order made all federal agencies in this area an action plan and deadlines
• Date for achieving WIPs changed to 2025, but those in involved many different approaches
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Suit filed against the EPA…
2013- U.S District Court for the Middle District of
Pennsylvania upheld the Bay-wide TMDL
more info
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Text Information Demo
Epilogue
• Chesapeake Bay Foundation’s biannual state of the Bay determined 13 indicators that the bay is improving, 7 did not change, and 1 declined
• Round of WIPs due this year, and all measures implemented by 2025
The Takeaway• CWA’s version of cooperative federalism is federal with state functions
• EPA is always involved- either initiating, responding, or obliged to act
• State’s responses vary with political leadership
• Citizen groups are very important
• When these reach the courthouse, state primacy is NOT a valid argument
• Overall, cooperative federalism has succeeded in some areas at restoring and maintaining the nation’s waters
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Discussion
Do you think a Mississippi River Basin TMDL would work?
What are your opinions on states verses the federal government regulating water quality?/ Is there a better way to organize the process?
Do you think that the general public is aware of the water quality issues and the repercussions?