Sunday's New York Times article, "Rulings Restrict Clean Water Act, Hampering EPA" by Charles Duhigg and Janet Roberts, illustrates a fundamental problem with the way our country regulates environmental problems, particularly with water issues.
One must agree that it is pretty ironic that just when many of the world's leading security organizations are predicting potential wars over increasingly scarce water resources, the US Supreme Court issues a decision that makes it easier for entities to pollute by removing many water bodies from EPA's jurisdiction. At the heart of the matter is the basic criteria that any regulated water body needs to be "navigable." The intent and interpretation of this clause have been widely debated over the years and the Supreme Court just ruled that EPA will now have to prove "navigable" and establish jurisdiction on a case by case basis. The result is that EPA will fail to pursue many of its potential enforcement cases because establishing jurisdiction will be too costly.
Critics of the Clean Water Act applaud the ruling, claiming that the law was never intended for the government to regulate "rain puddles." Supporters worry that point sources will start dumping toxics into unregulated water bodies. In truth, both are right and illustrate that we indeed need a new approach to regulating water quality in the US. When the Clean Water Act was first conceived, rivers were literally on fire and major (and I really mean MAJOR) sources of pollution went unchecked. The intent of the law was to go for the low hanging fruit: i.e. pick off the major polluters. A system of permits and enforcement were developed which are still the back bone of our approach today.
However, we now live in a different world. We have radically reduced major point sources of pollution, yet we are still seeing water quality impairments in many watersheds. Although there have been efforts to evolve our approach (I worked closely with many brilliant water quality experts under both Republican and Democratic Administrations), the underlying authority of the Clean Water Act limited the move to a more effective outcome-based approach. The "Permit and Enforce" approach can ignore many of the reasons why we are having water quality problems in the first place, including air deposition and non-point source run-off (think roads, backyards etc.). Under the "Permit and Enforce" approach regulators are held accountable for how many permits they write, not if the water us actually getting cleaner or maintaining healthy ecosystems. This approach can lead regulators down some very counterproductive alleys.
What is needed instead is a results based approach, where watersheds are assessed on their overall quality and remediation or preservation plans are then put into place. Even ten years ago this approach would have been difficult to implement due to a lack of water quality data, however with new information systems and recent advancements from state and federal governments and NGOs, we have enough water quality data to embark on an outcome based water quality management approach. By enhancing our understanding of the overall health of our watersheds we can better figure out the sources of their impairment and then develop appropriate remediation plans, yes including enforcement but also a slew of other best management practices. Under this approach, instead of hammering away at the same point sources we will actually be prioritizing the most important sources of impairment and finding new causes in the process.
An outcome based regulatory approach will also bring greater transparency and public scrutiny to the process. Communities would have the ability to better understand the status of their watersheds and what is causing them to fall behind others. It would also force regulators to develop new techniques and best management practices in driving improved environmental performance. Regulated entities would be more inclined to go beyond compliance as there efforts would be correlated directly to water quality improvements in the communities where their employees and customers live and work. Conversely, there would also be greater disincentives as polluting actions would be more discernable to the public. Permits would still have their place, but would not be the primary driver of water quality programs that they are today. In short our options are clear, maintain our status quo and watch one of our most valuable resources deteriorate, or move to an outcome based water quality approach where we can use data to manage our programs, engage communities, provide incentives and drive enforcement priorities.
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