Alternate: The Clean Water Act, Water Quality, Water Quantity and Stormwater

Climate change has been a subject of intense discussion for many years, and the effect on wet-weather events is of particular interest. EPA notes that in the U.S., nine of the top 10 years for extreme one-day precipitation events have occurred since 1996, and the occurrence of abnormally high annual precipitation totals has also increased. (https://www.epa.gov/climate-indicators/climate-change-indicators-heavy-precipitation). This is clearly an issue of water quantity and not quality. It is important to note that wet weather discharges result from many different activities: runoff from municipal surfaces, industrial sources and also from development activities. It is also important to note that wet weather discharges are often cited as a cause of (or contribution to) water bodies that do not meet water quality standards. Non-agricultural wet weather discharges are point sources and require permits to discharge. Flow is generally not regulated in permits and not considered when these water quality assessments are made. This may be due to the fact that flow is not considered to be a pollutant. Flow as a pollutant was at the center of the litigation related to the total maximum daily load (TMDL) for Accotink Creek in Virginia (see 2013 ruling Virginia Dep't of Transp. v. U.S. Envtl. Protection Agency). The court stated, 'The language of 1313(d)(1)(C) is clear. EPA is authorized to set TMDLs to regulate pollutants, and pollutants are carefully defined. Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it via TMDL. Claiming that the stormwater maximum load is a surrogate for sediment, which is a pollutant and therefore regulable, does not bring stormwater within the ambit of EPA's TMDL authority. Whatever reason EPA has for thinking that a stormwater flow rate TMDL is a better way of limiting sediment load than a sediment load TMDL, EPA cannot be allowed to exceed its clearly limited statutory authority'. In a regulatory context, it seems clear that water quantity and water quality will be addressed differently given the fact the Clean Water Act in the context of TMDLs and National Pollutant Discharge Elimination System (NPDES) permits focuses on regulating pollutants and flow (quantity) is not a pollutant. This seems clear based upon the Accotink decision however there are differing views. US EPA Region 1 in the 2021 Fact Sheet and Supplemental information for the draft NPDES General Permit for Small Wastewater Treatment Plants in Massachusetts and New Hampshire (MAG580000 and NHG580000) states, '2.3 Effluent Flow Requirements Sewage treatment plant discharge is encompassed within the definition of 'pollutant' and is subject to regulation under the CWA. The CWA defines 'pollutant' to mean, inter alia, 'municipal...waste' and 'sewage discharged into water.' 33 U.S.C. 1362(6). Generally, EPA uses effluent flow both to determine whether an NPDES permit needs certain effluent limitations and to calculate the limitations themselves. EPA practice is to use effluent flow as a reasonable and important worst-case condition in EPA's reasonable potential and WQBEL calculations to ensure compliance with WQSs under 301(b)(1)(C). . . . Regulating the quantity of pollutants in the discharge through a restriction on the quantity of wastewater effluent is consistent with the overall structure and purposes of the CWA'. The Fact Sheet also notes, 'EPA's regulations regarding 'reasonable potential' require EPA to consider 'where appropriate, the dilution of the effluent in the receiving water,' id 40 CFR 122.44(d)(1)(ii). Both the effluent flow and receiving water flow may be considered when assessing reasonable potential. In re Upper Blackstone Water Pollution Abatement Dist., 14 E.A.D. 577. 599 (EAB 2010). EPA guidance directs that this 'reasonable potential: analysis be based on 'worst case' conditions. See In re Washington Aquaduct Water Supply Sys. 11 E.A.D. 565, 584 (EAB 2004)'. This would seem to indicate that EPA believes flow (quantity) can be regulated but maybe not directly. This approach of addressing flow but not directly is seen in water quality trading in Iowa. Many groups in Iowa are looking for a solution to nutrient enrichment and have noted that controlling flow is a key and this flow control will also address another serious problem, flooding. Flow plays an important role in water quality, regardless of how it is addressed in the Clean Water Act. The presentation and manuscript will discuss similar but different approaches that can be applied to control the quantity of flow and mass of pollutants and to improve water quality. The presentation will also discuss the need to address both runoff and instream impacts that deliver pollutant loads into the downstream waters. It is important to note that controlling the quantity of water also provides opportunities to address flooding concerns, which are not a driver in most CWA regulatory programs. This brings us to the approach or integrated planning. The presentation will discuss how integrating the different CWA regulatory programs (e.g., NPDES permits, 404 mitigation, TMDLs, water quality standards assessments) might provide more efficiency and improve the water quality.