You would think that the regulatory reach of the Clean Water Act(CWA), which was passed in 1972, would be well settled law.  However, recent litigation has demonstrated that this is certainly not the case.

Which Wetlands and Streams are Protected?

The U.S. Supreme Court has weighed in multiple times on which wetlands and streams are regulated under Section 404 of the Clean Water Act (CWA).  The Court’s most notable ruling is Rapanos, a plurality decision which is still being interpreted by lower courts.  The Court adopted a vague standard known as the “significant nexus” test to determine if waterways should be federally regulated.   The test looks at the physical, biological and chemical connection between a navigable water and the wetland/stream at issue. This blog has extensively discussed this topic in prior posts.

Are Discharges to Groundwater Covered?

Before you can discharge pollutants into a federally protected waterway (i.e. surface water) you must obtain a permit known as an NPDES discharge permit.  What has not been settled is whether an NPDES permit is required for discharges to groundwater that migrates into surface water.

The CWA prohibits discharges “to navigable waters from any point source.”  The term “navigable waters” includes any federally protected waters covered under the “significant nexus” test discussed above.  What has been an issue is whether groundwater that migrates into a federally protected water constitutes a discharge from a “point source.”

The Ninth and Fourth Circuit Courts each found that a discharge of pollutants into groundwater that migrates to a federally protected water is prohibited under the CWA.  The Fourth Circuit did require a direct hydrogeologic connection between groundwater and the surface water. (Click here to read prior post discussing this decision).

On September 24, 2018, the Sixth Circuit reached the opposite conclusion as the Ninth and Fourth Circuits. See, Kentucky Waterways Alliance v. Kentucky Utilities Company, No. 18-5115 and Tennessee Clean Water Network v. Tennessee Valley Authority, No. 17-6155. Environmental groups brought CWA citizen suit actions alleging that an NPDES permit was required for pollutants leaching from coal ash ponds into groundwater which then discharged to surface water. The key findings of the Sixth Circuit include:

  • Ground water is not a “point source” because it is not a “discernible, confined, or discrete conveyance” (as point source is defined under the CWA);
  • A point source must dump directly into surface water (i.e. federally protected water), not indirectly through groundwater.

Judge Clay issued a strong dissent to this ruling, noting that the Sixth Circuit ruling would create a major loophole-  Industry could simply discharge into groundwater first, before it reaches surface water, to avoid triggering the need for an NPDES permit.

Onto the Supreme Court or EPA?

With a split among the Circuit Courts, there is a strong possibility that this issue will be taken up by the Supreme Court.  Until then, there will be different standards in different federal circuits as to the regulatory reach of the CWA.

Meanwhile, U.S. EPA has requested comments on whether the reach of the CWA should extend to discharges of pollutants from point sources that reach surface water through groundwater.  See, 83 Fed. Reg. 7126 (Feb. 20, 2018).  Whether EPA issues a regulation to clarify the reach of the Act has yet to be seen.  However, as is evident with EPA’s attempt to clarify Rapanos, any rule making effort will be a long road with legal challenges.

The ruling in Upstate Forever and Savannah Riverkeeper v. Kinder Morgan Energy Partners, LP expands the rights of citizens groups to bring suits for penalties and injunctive relief under the Clean Water Act even when a state EPA is actively involved in addressing the issue.  Furthermore, the court ruling allows claims to be brought even when the original spill ceased and all that remains is ongoing migration from a historical spill.

Factual Background

Back in 2014, a leak occurred in the Plantation Pipe Line which runs from Louisiana to Washington, D.C.  The leak resulted in the discharge of gasoline and petroleum below ground.  While the leak was repaired quickly, cleanup has been ongoing for a number of years.  The cleanup has been supervised by the South Carolina Department of Health and Environmental Control (SCDHEC).  In 2016, environmental groups brought suit claiming the cleanup has been inadequate to prevent migration of pollution into nearby waterways.

Issues Presented

The suit raised a number of important issues:

  • Typically, where state or federal regulators have taken affirmative action to address a violation, such regulatory action bars citizens from bringing suit. Why not here?
  • When a spill has stopped do citizen groups still have authority to assert a claim?
  • Does subsurface pollution that migrates to waterways fall within the scope of the Clean Water Act as a prohibited discharge
    • The Clean Water Act regulates “point source” discharges which are “any discernible, confined and discrete conveyance,” including pipes, ditches, channels and tunnels. 33 U.S.C. § 1362(14)

Fourth Circuit Rules the Environmental Groups Could Bring Suit

The Court did not directly address the extent of state involvement in the cleanup.  However, the cleanup was only being performed in accordance with “guidance” from the SCDHEC, not under a formal judicial consent order which would bar a subsequent citizen’s suit.  While the Company was working with state regulators to cleanup the spill, the State never took formal enforcement to cutoff citizen suits.

The Court ruled the spill was not a “wholly past violation.”  While the pipeline was fixed, the spill left contaminants in the ground that were still migrating to nearby waterways.  The Court found that the pipeline was a point source and even though the pipeline was repaired, ongoing violations were occurring due to migration of contamination to waterways from the original spill. The Court held:

“The CWA’s language does not require that the point source continue to release a pollutant for a violation to be ongoing. The CWA requires only that there be an ongoing ‘addition… to navigable waters,’ regardless whether a defendant’s conduct causing the violation is ongoing.”

The Court rejected other court rulings that held such ongoing migration of pollution did constitute wholly past violations.  It distinguished this case from a prior ruling that held decomposition of lead shot was not an ongoing violations.  Conn. Coastal Fisherman’s Ass’n v. Remington Arms Co., 989 F. 2d 1305, 1312-13 (2d Cir. 1993).  With regard to the case of lead shot, in contrast to the Kinder Morgan case, the pollutants had already been deposited into a waterway.  Here, pollution was still entering nearby waterways from the historical spill.

Finally, the Court held that violations of the Clean Water Act are not limited to “direct discharges” to a waterway.  The Clean Water Act also covers “indirect discharges,” in this case pollution migrating through groundwater and entering nearby waterways.  However, the Court cautioned, the connection between a point source of pollution and a waterway must be clear (i.e. a “direct hydrological connection”).

For a long period of time, U.S. EPA exempted stormwater from coverage under the Clean Water Act. This was largely due to the fact that EPA had enough on to do in simply regulating discharges from traditional point sources of water pollution.  In 1987, Congress gave EPA the authority to regulate stormwater discharges from "presumptively dirty sources" including industrial activity.  See, Ecological Rights Found. V. Pac. Gas and Elec. Co., 713 F. 3d 502, 505 (9th Cir. 2013)

After Congress acted, EPA passed regulations defining which businesses were "presumptively dirty" and needed to get permit coverage to better control discharges of stormwater.  40 C.F.R. Section 122.26(b)(14).  EPA also developed the NPDES Multi-Sector Stormwater Permit and identified eleven different industrial categories that must get coverage under the Multi-Sector NPDES Stormwater Permit. See, 40 CFR 122.26(b)(14)(i)-(xi)

If, despite being associated with an industrial activity as defined in the regulations, stormwater is not actually exposed to industrial materials or activities, the facility may be able to obtain a "conditional no exposure" ("CNE") exclusion from the permit requirement.  

If there is no sampling showing the stormwater contained pollutants is there a violation? 

A facility may be required to obtain a permit because its discharges are "presumptively dirty," however, is there an actual violation for polluting waters if there is no direct evidence that the stormwater discharge actually contains pollutants?  While Congress created the presumption that stormwater from industrial activity was presumptively dirty, the Clean Water Act definition of pollutant went unchanged:

Pollutant- "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemicals wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water."  33 U.S. C. 1362(6)

The Court in Puget Soundkeeper Alliance v. Whitley Manufacturing Co., Inc. (Case No. C13-1690RSL, W.D. Wa., Nov. 9, 2015)  recently found that a Citizen Group did not need to prove stormwater from a business contained actual pollutants before it could assert a violation of the Clean Water Act.  The Citizen Group alleged the company violated the law by discharging stormwater from its business without a permit for a six year period.  

The Court held that because the companies stormwater was associated with industrial activity, the stormwater "is, in and of itself, a pollutant." The Court found that:

"Even if the definition of ‘pollutant’ is strictly and narrowly construed to include only those items specifically listed (a theory that does not have universal acceptance), Congress was well within its discretion to clarify that the phrase ‘industrial, municipal, and agricultural waste’ includes stormwater that comes in contact with those materials…” 

An interesting fact in this case was that in 2014 the facility obtained a CNE exclusion from permitting. However, the Court was still willing to found the company liable for discharging stormwater without a permit for the years prior to the CNE exclusion.

Why this decision is important

  • Companies can be liable for Clean Water Act violations, including significant civil penalties, if they simply discharge stormwater from their business without a permit, even if there is no sampling that shows the stormwater contains contaminants;
  • Companies should evaluate whether permit coverage for stormwater discharges is required for their business or seek a certification that their facility is exempt (i.e. No Exposure Certification- All industrial material are sheltered from exposure to stormwater);
  • This case highlights the fact that companies don’t just face potential enforcement from regulators. Any person or entity with standing under the Clean Water Act Citizen Suit provisions can bring an action.

After five years of litigation, the Ohio Supreme Court issued its decision today in Northeast Ohio Regional Sewer District (NEORSD) v. Bath et. al., upholding the District’s authority to implement a storm water management program.  The Supreme Court’s decision overturns an prior ruling by the Appellate Court which had held NEORSD did not have legal authority to regulate storm water.

The legal issue was rather simplistic- Does the NEORSD grant of authority to control waste water include storm water?

The District authority stems from statute.  R.C. 6119.01 states the authority of the District has either to a) supply water; or b) "provide for the collection, treatment, and disposal of waste water."  R.C. 6119.011(K) defines "waste water" as "any storm water and any water containing sewage or industrial waste or other pollutants or contaminants derived from the prior use of the water."  

The Appellate Court concluded that storm water is only waste water when it is co-mingled with other pollutants or sewage.  If storm water is not co-mingled in this way (i.e. typical storm water runoff), then the Appellate Court held the District has no authority to regulate the runoff.

The Supreme Court held there are two categories of water the District can regulate.  The Court held the category of "waste water" includes:

  1. "storm water;" and
  2. "any water containing sewage or industrial waste or other pollutants or contaminants…"  

After concluding that the Sewer District has authority to implement a regional storm water management system, the Court then reviewed whether the District has authority to assess fees for projects that have yet to be built.  A majority of the Court concluded that the District does have authority to assess fees now to finance future storm water management projects.  

Restarting the Storm Water Fee

As noted in the Cleveland Plain Dealer article discussing the decision, the Common Pleas Court has held $20 million in fees collected prior to the Appellate Court ruling in escrow.  After the Appellate Court ruling, the fees- approximately $35 per household per quarter- were put on hold.  The District now says it will begin to collect fees again as well as ask for release of the funds in escrow.  The District also stated it would not attempt to retroactively collect fees that would have been assessed while the Appellate Court decision was on appeal.

Practical Implications for Industry

The amount of fees paid depends on that amount of impervious surface at the property.  Businesses with large parking lots or buildings could face thousands in storm water fees. The fees will act as a strong financial incentive for businesses to manage storm water at their properties in a different manner, including reducing impervious surface or discharges to storm sewers. 

The District will also be implementing projects in the region, including providing 25% of the fees collected to local governments to implement their own projects.  

Overall, the Supreme Court Decision will clearly have major implications for businesses that operate within the NEORSD service territory.

For over a decade, U.S. EPA has embarked on a national enforcement strategy regarding combined sewer overflows (CSOs) and sanitary sewer overflows (SSOs) from municipal wastewater treatment systems.  As part of the enforcement strategy, U.S. EPA has entered a large number of federal consent decrees which establish deadlines for the elimination of CSOs/SSOs.  These decrees impose costs in the billions of dollars and have compliance schedules that extend over decades.

As part of those decrees, U.S. EPA requires the municipalities to adopt Long Term Control Plans (LTCPs) to address wastewater treatment plan bypasses, SSOs and CSOs.  The standards and deadlines imposed within those LTCPs, in many cases, were based upon U.S. EPA guidance from the 1990s.  

Many national organizations have been sharply critical of U.S. EPA guidance, including:  NACWA (National Association of Clean Water Agencies), Association of Clean Water Administrators (ACWA), Conference of Mayors, National Association of Counties, and the National League of Cities.  These organizations argued the 1990’s guidance was outdated and demonstrated significant flaws once implemented in decrees.

Following an outcry by national organizations for municipalities, U.S. EPA revisited a number of their guidance documents to address concerns raised.  As discussed in detail below, new guidance has been released by U.S. EPA in the following areas:

  • Integrated Planning– The cost of meeting both stormwater (MS4) as well as wastewater treatment system compliance requirements;
  • Affordability-  U.S. EPA’s guidance was outdated and does not allow municipalities to fully present information regarding the impact of increased sewer rates on municipalities;
  • Green Infrastructure–  U.S. EPA has increasingly supported use of green infrastructure (stormwater retention, reduction of infiltration/inflow, etc.)  to reduce the amount of grey infrastructure (storage tunnels, control strategies, etc.)

Integrated Planning

One of the major criticisms of U.S. EPA national CSO enforcement strategy is that it failed to take a holistic look at all the compliance costs faced by municipalities in meeting Clean Water Act requirements. The most significant of those costs relate to stormwater management.  

U.S. EPA finally acquiesced to this criticism allowing cities to evaluate compliance with both wastewater and stormwater requirements concurrently.  U.S. EPA released new guidance titled  “Integrated Municipal Stormwater and Wastewater Planning Approaches Framework.” Memorandum from Nancy Stoner, Acting Assistant Administrator (June 5, 2012)

While the new guidance was welcomed, many municipalities are already under court orders imposes settlements to did not consider integrated planning.  

Affordability

In 1997, U.S. EPA finalized specific guidance on assessing community financial capability
titled- “Combined Sewer Overflows- Guidance for Financial Capability Assessment and
Schedule Development”
. The purpose of the guidance was two-fold: 1) identify the types of financial information that was relevant in determining a community’s financial capability; and 2) establish a specific methodology for gauging a community’s financial capability.

The most important methodology utilized by U.S. EPA to evaluate a community’s ability to afford the controls and schedule for implementing controls in its LTCP is the "Residential Indicator" (RI) factor. The 1997 guidance established the methodology for calculating RI.  

  • Total annual wastewater and CSO control costs per household as a percent of median household income (referred to as the “Residential Indicator” or “RI”)

Despite statements by U.S. EPA in its 1997 guidance and in subsequent communications that RI is but one factor in evaluating affordability, a review of federal consent decrees clearly demonstrates it is the most heavily relied upon factor in establishing compliance schedules.  

Following calculation of RI, the long term compliance deadlines are established based upon whether the community falls into a "low," "medium," or "high" burden community.  

  1. Low = normal construction schedule for all improvements;
  2. Medium = up to 10 years; and
  3. High = up to 15 years and in some cases 20 years depending upon circumstances.

One of the main criticisms of RI is that it tends to washout or dilute the true impact of higher sewer rates on the lower income segments of the community.  RI only utilizes median household income to determine the percentage of overall income dedicated to paying for sewer service.  

On November 24, 2014, U.S. EPA issued new guidance on financial capability assessments- “Financial Capability Assessment Framework for Municipal Clean Water Act Requirements.” Memorandum from Ken Kopics, Deputy Assistant Administrator Office of Water (November 24, 2014).

Under the new guidance, Cities have wider latitude to present information regarding the unique
impacts of CSO/SSO and wastewater treatment compliance costs on the local community.  U.S. EPA argues that the 2014 guidance does not "replace’ the 1997 guidance on affordability, it merely clarifies what was allowable under the old guidance all along.  This statement seems disingenuous given how RI has been directly referenced in a large number of SSO/CSO federal decrees.  

Clearly, the new guidance allows cities to present information regarding the impact of sewer rates on segments of its overall population, including lower income residents.  While the guidance clearly allows such information to be presented, it does not provide an strict guidance as to how much of a burden is "too much" for low income residents.  The lack of clear standards for determining unacceptable burdens on lower income residents further complicates the ability of cities to reopen existing CSO/SSO decrees.

Green Infrastructure

Most early efforts to control CSOs utilized “gray infrastructure” which involves the use of pipes,
sewers, and other structures involving concrete and steel. A very common technique to address
CSOs or WWTP bypasses is the use of storage in tanks, basins, or deep tunnels to store wet
weather combined sewer flows. The wet weather related flows can be held in storage until the
wastewater treatment plan has the capacity to treat the stored wastewater.

“Green infrastructure” (GI) use natural processes to reduce the quantity or rate of stormwater
flows into the sewer system. Common techniques are infiltration, evapotranspiration, and
capture and use (i.e. rainwater harvesting). Green infrastructure can be utilized on a small or
large scale. Small scale techniques include rain barrels, bioswales, porous pavements, green
roofs and infiltration planters. Larger scale techniques include wetlands, riparian buffers, open
space or other techniques involving larger tracts of land.

U.S. EPA has increasingly supported the use of green infrastructure to address CSOs and wastewater treatment plant bypasses. October 2013, U.S. EPA Headquarters released the Green Infrastructure Strategic Agenda which directs EPA enforcement personnel to:

  • “Ensure all water enforcement actions consider the use of green infrastructure;” and
  • “Consider green infrastructure approaches in the development of orders and settlements
    related to SSOs, CSOs and MS4s and incorporate green infrastructure as part of
    injunctive relief were appropriate.”

U.S. EPA released additional green infrastructure guidance titled “Greening CSO Plans: Planning and Modeling Green Infrastructure for Combined Sewer Overflow (CSO) Control.” U.S. EPA Publication #832-R-14-001 (March 2014).  The new guidance strongly encourages incorporation of green infrastructure into LTCPs.

While U.S. EPA has moved aggressively toward encouraging uses of green over grey infrastructure, many decrees predated the most recent information on the benefits of green.  Cities that have LTCP that almost exclusively rely upon grey infrastructure will need to make detailed demonstrations that green approaches are equivalent if not better than existing grey infrastructure. 

Re-opening Existing SSO/CSO Consent Decrees

With all the new guidance that has been released since 2013, many municipalities who have been under existing decrees rightfully question whether they have an ability to revisit their settlements. U.S. EPA indicates that it is willing to revisit settlements:

  • U.S. EPA states that remedy and affordability determinations under existing decrees can be reexamined under EPA’s new Integrated Planning Approach.  EPA states such requests must be supported "with sufficient information and analysis to determine whether an Integrated Planning Approach makes sense based on sound science and appropriate technical and financial analyses." (See, Integrated Municipal Stormwater and Wastewater Planning Frequently Asked Questions (July 25, 2013))

However, the practical reality is that cities will be required to continue to comply with their existing LTCP while concurrently generating new extensive studies to support reopening their existing decree.  Most decrees also require the municipality to petition the U.S. EPA first before requesting that the court intervene. 

In addition, as highlighted by the City of Akron’s recent inability to reopen its CSO decree citing new U.S. EPA guidance, cities face significant challenges.

Nevertheless, U.S. EPA has issued so much new guidance and strongly indicated a willingness to revisit existing settlements, it will be very difficult for the Agency to not acquiesce when cities present a legitimate request that is well supported using the new guidance.  

It will be interesting to see how EPA handles these requests in the next few years given what is at stake in terms of compliance costs.   

The Ohio Supreme Court provided a major set back to the Ohio EPA efforts to establish water quality based discharge limits in its surface water discharge permits (i.e. NPDES permits).  The Court determined in Fairfield County v. Nally that TMDLs must go through formal administrative rulemaking before they can be used to support discharge limits in NPDES permits.

Ohio EPA had argued the TMDLs were just guidance.  The Court rejected the Agency’s argument and said that TMDLs establish new legal obligations and, therefore, must go through the formal rulemkaing process contemplated by Ohio Revised Code Chapter 119.

What is a TMDL?

Section 303(d) of the Clean Water Act requires the identification of polluted rivers, streams, lakes and other waterbodies.  Once impaired waterbodies are identified, the Clean Water Act contemplates use of the Total Maximum Daily Load (TMDL) process to determine the maximum amount of a pollutant that may be discharged without causing the receiving body of water to violate water-quality standards.  See, U.S.C. 1313(d)(1)C).

A TMDL is a complex technical analysis of a waterbody.  The analysis includes chemical and biological testing of the waterbody to determine whether it currently doesn’t meet water-quality standards.  If the waterbody doesn’t meet water-quality standards, the TMDL process determines how much reduction must occur in various pollutants for the waterbody to be able to meet water quality standards.  If the waterbody meets water-quality standards, the TMDL determines how much additional pollution may be discharged to it before it will no longer meet those standards.  

Once the TMDL process determines either the amount of pollutant loading reduction needed or available pollutant loading remaining, the Agency allocates the available pollutant loading among the NPDES permitted dischargers to the surface water body (i.e. wastewater treatment plants, utilities, manufacturers, etc.).  The allocation takes the form of effluent discharge limits for dischargers through NPDES permits.

Impact of Supreme Court Decision on Ohio EPA Discharge Permits

As of May 9, 2013, Ohio EPA has listed approximately 86 watersheds for TMDL development, approximately one half had been completed and approved by U.S. EPA.  While there are 86 watersheds, there may be multiple surface waters in each watershed.  According to information provided by Ohio EPA, the Agency has issued approximately 1,761 TMDLs for watercourses throughout Ohio, including 132 TMDLs to determine phosphorus loading alone.  

The adjacent map is from Ohio EPA’s website and shows the current status of the TMDL process for each watershed. The purple areas show those watersheds that have TMDLs that have been approved by U.S. EPA.  The other colors show the progress toward obtaining U.S. EPA’s approval of the TMDL.

After the Ohio Supreme Court decision, all of the purple areas will have to through the rule making process before those TMDLs can be used to support discharge limits in NPDES permits for those watersheds. 

Furhtermore, any NPDES permit that currently has a discharge limit based upon a TMDL approved by U.S. EPA is likely not enforceable.  Given the large number of NPDES permits that have been issued in these areas, the Court decision represents a huge setback for the Agency.  

Not only does the decision make it more difficult for the Agency to enforce discharge limits in existing NPDES permits, the Agency will also have to expend significant resources going back through the rule-making process for potentially each the 1,761 TMDLs the Agency had previously considered completed.  

Pardon the pun, but toxic algae has been a growing problem in Ohio.  Significant issues with toxic algae have occurred in Lake Erie, Grand Lake St. Marys and elsewhere.  In fact, Ohio EPA recently added a new feature to their webpage in which you can track and identify toxic algae issues around the state:

 On the website, you can now view the whole state and Ohio EPA will identify those waterways in which harmful algae blooms are currently a problem.  

The website includes a list of current public health advisories.  

The increased awareness and issues associated with toxic algae has triggered initiatives to tighten regulations in hopes of eliminating harmful blooms.

Senate Bill 150-  Increased Authority to Regulate Nutrient Discharges from Farms

This summer the Kasich Administration introduced Senate Bill 150, which would provide increased regulatory authority to the Ohio Department of Agriculture and Ohio Department of Natural Resources.  The bill would require farmers to develop "Nutrient Management Plans" that would help ensure best practices were utilized in application of fertilizer to reduce nutrient runoff.  

The bill would also create a fertilizer applicator licensing program with certification and continuing education requirements.  No person could apply fertilizer for agricultural purposes without being properly certified by the state.

The other components of the bill include expansion of the types of fertilizer regulated by the state (current regulatory authority is largely limited to manure).  S.B. 150 would provide regulatory authority over commercially manufactured fertilizers.

Also, the bill would give regulatory agencies greater enforcement authority.  For example, the Director of Agriculture could revoke a persons fertilizer certification if the failed to comply with the regulations.

Ohio EPA Nutrient Regulation

While S.B. 150 attempts to address nutrient run-off from so called "non-point sources" such as farm fields, Ohio EPA has proposed increased regulation to traditional point sources (i.e. wastewater treatment plants).  This spring Ohio EPA released a proposal to target watersheds that may need to have nutrient permit discharge limits included in NPDES permits.  

Under the proposal, waterways would go through a stream survey evaluation process. The following factors would be evaluated under the Agencies proposed "Trophic Index Criteria:"

  • Dissolved oxygen;
  • Nitrogen and phosphorus concentrations;
  • Algal biomass; and
  • The biological community.

By evaluating these criteria, the Agency will assign the waterway a category of either "Impaired", "Threatened" or "Acceptable."  Impaired waterways would likely see the imposition of nutrients discharge limits in future NPDES permits.  

Conclusion

With increased awareness of toxic algae, it appears the state is moving quickly to try and increase regulation of nutrients.  The state is at the early stages of increased regulation.  New proposal are almost certainly forthcoming. 

 

Algal blooms in Lake Erie have resurfaced as a major problem in recent years. Large algal blooms can even be viewed from satellite images. (Photo: Courtesy of NOAA)

Considerable effort and funding has been directed at studying the causes of the problem. Efforts are now under way to try and address the issue. One such effort is the Ohio Clean Lakes Initiative, which is under the management of the Ohio Department of Natural Resources, Ohio Department of Agriculture and Ohio Environmental Protection Agency. The purpose of the initiative is to collaborate with farmers and other stakeholders to understand the problem better and develop programs that could address the root causes of algal blooms. 

In an interview with the Ohio Environmental Law Blog, Chris Abbruzzese, Deputy Director of the Ohio Environmental Protection Agency, provided additional background about the Ohio Clean Lakes Initiative.  

From Ohio EPA’s perspective, please provide an explanation of what the Agency believes is happening and where it thinks the problem is coming from?

Thirty years ago farmers, municipalities and industries in the Western Lake Erie Basin made significant efforts to cut the amount of phosphorus and sediment loading into Lake Erie by 50 percent. However, the dissolved form of phosphorus entering Ohio’s waterways from a variety of sources in the area remains an issue, resulting in increased occurrences of algal blooms. Over the last several years the increased frequency of algal blooms has had a significant impact in the Western Basin of Lake Erie, threatening its ecological integrity and creating a more challenging economic climate.

An algal bloom is a rapid increase in the population of algae, often as a result of excess nutrients, primarily phosphorus and nitrogen. Sources of nutrients include fertilizers used on farms and lawns, sewage treatment plants, faulty septic tanks & other home sewage treatment systems and some industrial operations. Some algal blooms can become toxic, potentially making the water unsafe for human contact or consumption. These toxic blooms create nuisance conditions that interfere with recreation and may cause fish kills when dead organic matter decays and depletes oxygen in the water. Public water supplies have water treatment plants that remove algal toxins but high levels of algal organic matter causes taste and odor problems and the formation of harmful by-products that must be controlled. All of this significantly increases the cost of providing safe drinking water supplies.    

 Under the direction of Governor Kasich, the Ohio Department of Natural Resources, Ohio Department of Agriculture and Ohio Environmental Protection Agency established the Clean Lakes Ohio Initiative this year to address these concerns.

What programs will the Ohio Clean Lakes Initiative establish?

The Ohio Clean Lakes Initiative will: educate and encourage farmers to use good nutrient stewardship; expand the use of on-the-ground practices to help control the displacement of agricultural nutrients; expand the frequency and type of soil testing; and create a monitoring network to implement and access the effectiveness of management practices.

How do farmers view the Initiative?

Ohio farmers are stepping up to the plate to learn more about nutrient management and about modern conservation technologies. The Ohio Department of Agriculture is encouraging farmers across the state to adopt the 4R Nutrient Stewardship model to reduce excess nutrients in the state’s waterways. Good nutrient stewardship not only benefits the environment, it also benefits farmers by saving money and time instead of applying unnecessary or excessive fertilizer to the field.

Studies indicate that the timing of fertilizer application and how well it is incorporated into the soil layer can significantly reduce dissolved phosphorus runoff. Being more conscious of what is going into the fields, when it is going into the fields and how it is going into the fields will maintain agricultural integrity while improving water quality.

Such an initiative could be controversial with the agricultural industry. How is the state trying to work with agri-business?

The Ohio Department of Agriculture and Ohio Department of Natural Resources are exploring partnerships with the agribusiness industry to expand the frequency and type of soil testing being used. For example, the Ohio Department of Natural Resources has worked with farmers in Wood, Henry, Hancock, Putnam and Defiance counties to enroll over 18,000 acres of farmland in a new soil testing initiative.

Due to size of the Lake Erie Basin, this seems like it’s more of a regional issue than an Ohio specific issue. Is there anything being done across the region to address the issue?

Yes. The Ohio Department of Natural Resources, Ohio Department of Agriculture and Ohio Environmental Protection Agency directors met last spring with their counterparts from Michigan and USEPA to discuss issues related to improving water quality in the Western Lake Erie Basin. A lot of good ideas were shared and several other organizations are also interested in improving the water quality in Lake Erie. The International Joint Commission Water Quality Board is in the process of developing a plan to improve water quality in Lake Erie.

Also, in August, Ohio joined Indiana and Kentucky in a pilot multi-state water quality trading plan to reduce the run-off of agricultural nutrients. The Ohio River Basin Water Quality Project Pilot Trading Plan is the first consensus plan for interstate trading to reduce nutrients. The agreement provides businesses and municipalities with a more economically viable option to efficiently reduce nitrogen and phosphorus loading in rivers, lakes and streams while providing the agricultural community more resources to implement conservation and best management practices in a watershed. The experience from this pilot plan can be used in the Western Lake Erie Basin.

 [For more information on the initiative please see cleanlakes.ohio.gov]

 

Representative Wachtmann has introduced H.B 473 which will implement Ohio’s regulatory program under the Great Lakes Compact.  H.B. 473 follows last summer’s veto by Governor Kasich of H.B. 231 which was criticized by environmental groups and former Governor Taft and Senator Voinovich as not protective enough of Lake Erie.

The Great Lakes Compact was passed by the Great Lake states as well as Congress. The Compact sets regional standards governing water withdrawals and diversions from the Great Lakes.  With 20% of the worlds fresh water, the Great Lake states viewed the Compact as critical to protecting their fresh water resource as pressure mounts to divert water to other regions or countries facing dwindling supplies of fresh water.

H.B. 473 certainly marks a significant departure from H.B. 231 on several important points.  The most notable changes relate to the trigger levels for needing a permit and the standard for determining when a withdrawal could have an adverse impact.

Trigger Levels for Permitting

The main criticism of H.B. 231 was that it contained permit trigger thresholds which were higher than most of the other Great Lakes States which have already passed legislation implementing the Great Lakes Compact..  

Trigger Thresholds for Water Withdrawal Permit

(millions gallons per day – MGD)

Triggers H.B. 231 H.B 473
From Lake Erie  5 MGD averaged over 90 days  2.5 MGD
 From Streams that flow into Lake Erie or groundwater  2 MGD averaged over 90 days  1 MGD
From High Quality Streams 300,000 gpd averaged over 90 days 100,000 gpd

H.B. 473 significantly ratchets down the trigger thresholds for needing a water withdrawal permit. Under the bill, Ohio would have lower thresholds than Indiana and comparable to Michigan’s.  It will still have higher thresholds than Pennsylvania or New York. 

However, all other states allow averaging over at least 30 day period.  The current version of H.B. 473 does not allow averaging.  This is likely to be an area of debate moving forward. 

The Compact itself allows averaging.  It seems unreasonable to trigger a permit if on one day a pump installed has the capacity to withdrawal 100,000 gpd from a high quality stream regardless of whether that capacity is actually going to be utilized.  This is particularly the case when the permit program exams impacts to Lake Erie and not the stream itself.

Definition of "Adverse Impact"

The State must deny a permit if the water withdrawal is determined to cause an "adverse impact" on Lake Erie.  H.B. 473 eliminated the controversial definition of "adverse impact" that appeared in H.B. 231.

H.B. 231 defined adverse impacts in the negative- anything at or below 90 mgd from the Lake or 45 mgd from groundwater was presumed not to cause an impact.  H.B. 473 leaves the definition up to future rulemaking by the Ohio Department of Natural Resources (ODNR).  The bill calls for a study commission which will make recommendations on a definition to the Legislature. 

Overall, H.B. 473 provides broader rulemaking authority to the ODNR.  This marks a significant departure from H.B. 231 which provided virtually no rulemaking authority.  H.B. 231 was meant to provide clarity by setting forth all the important provisions in statute leaving very little to future rulemaking.

H.B. 473 should be less controversial than H.B. 231 which was vetoed by Governor Kasich after virtually every major in Ohio paper issued editorials opposing the bill.  While certain provisions will be debated, H.B. 473 moves Ohio much closer to the other Great Lakes States in how it regulates future water withdrawals from the Great Lakes Basin.

Traditionally, EPA has regulated storm water differently than point source discharges.  Regulators recognized that it was easier to install new technology to reduce pollutant loading from a specific industrial process with a specific "end of pipe" discharge point.  Storm water was much more unpredictable.

Therefore, U.S. EPA regulated storm water using general NPDES permits without specific numeric limits.  Instead, the general permit would require the development of a storm water pollution prevention plan (SWPPP) which required companies to institute "best management practices" (BMPs) to reduce pollution from run-off.  The effectiveness of BMPs were evaluated by monitoring pollutant levels in run-off. but permits did not contain specific numeric effluent limits that had to be met.

EPA recognized the difficulties in trying to establish a numeric effluent limit for storm water discharges due to the variables involved.  For instance, due to the variability of the size and nature of storm events, the amount of pollutant leaving a site in run-off was difficult to evaluate.

In 2002, EPA issued guidance that stated numeric limits would only be used "rarely" in storm water NPDES permits.  However, EPA believe technology has improved and has signaled a shift toward numeric limits for storm water control. In 2010, EPA issued a controversial revision to that guidance indicated numeric values may be appropriate.  (See, "Guidance on Establishing TMDL Waste Load Allocations for Storm Water Discharges in NPDES Permits"  EPA November 2010)

Benchmarks Versus Numeric Limits

The first step toward numeric limits is EPA’s use of "benchmarks" in storm water permits.  EPA makes clear that benchmarks are not effluent limits.  This means an exceedence of the numeric value is not a violation.  However, the exceedence is evidence that BMPs need to be improved to reduce pollutant loading.

In December 2011, Ohio EPA followed U.S. EPA lead and incorporated benchmarks into its final version of the new NPDES General Permit for Industrial Activity.  This permit differs from the previous General NPDES Permit companies  in two significant ways. 

First, the permit contains industry specific requirements (which is why the permit is 141 pages long).  Second, it uses benchmarks tied to specific industrial activity that will be used to determine the effectiveness of BMPs.

Ohio EPA’s new General  Permit became effective starting January 1, 2012.   However, facilities will still be covered by their old general permits, as long as they are still effective.  Existing facilities will begin the transition to the new permit upon notification from Ohio EPA. 

Ohio EPA will send written instructions to existing covered facilities on how to continue their general permit coverage with the submittal of a “re-notification” of intent to be covered. The existing facility will have 90 days to submit the re-notification.

Benchmark Monitoring

The new permit is effective for five years.  During the first four years of the permit, facilities to which the industry specific benchmarks apply, will monitor their compliance with the benchmarks.

In the first three years of the permit, monitoring and reporting is required for four out of the 12 quarters.  In year number four, the data is averaged and compared to applicable benchmarks for that industrial activity. If facilities are still exceeding the benchmarks after four years, they will be forced to review their BMPs, storm water control plans and house keeping activities to further reduce pollutant loading.

How Far will Facilities Need to Go to Comply with Benchmarks?

The permit makes very clear that the benchmarks are not enforceable effluent limits.  Therefore, an exceedence is not a violation which could subject the facility to an enforcement action.  However, the expectation is the facility will continue to improve storm water controls if the benchmarks are not met. 

The final permit does contain language that allows faculties to assert they have done all they feasibly can to reduce pollutants.  The permits states that facilities can demonstrate that “no further pollutant reductions are technologically available and economically practicable and achievable in light of best industry practice to meet the control measures/best management practices (BMPs) in Part 2 of this Permit.”

The determination must be documented and retained with the (SWPPP, and provide notification of this determination to Ohio EPA at the due date for the next benchmark monitoring report.  Of course, a company’s determination as to what is economically practicable may not be the same as the Agency’s. 

(For more information on Ohio EPA’s NPDES General Permit for Industrial Activityclick here)