Water Works: The Clean Water Act Turns 50: Where Do We Go From Here?
Oct. 18, 2022, marked 50 years since passage of the Clean Water Act (CWA) landmark legislation that established a goal of restoring and maintaining the chemical, physical and biological integrity of the nation’s waters. The CWA initially was focused on regulation of point sources, those discrete discharge points—mainly from industrial activities and wastewater treatment plants—that led to widespread water-quality issues by the late 1960s. Although we’re not done yet, we’ve made great progress reducing pollution from these sources and have seen a return to swimmable and fishable conditions on some of our nation’s waters. But one source of pollution remains on the rise: stormwater runoff from urban areas.
From the start, the CWA was an imperfect tool for stormwater management. Unlike wastewater and industrial process flows, stormwater runoff is much more variable in magnitude and diverse in its origins, pollutant profiles and impacts. In the 35 years since the 1987 CWA amendments were adopted that initiated the National Pollution Discharge Elimination System (NPDES) permit program to regulate stormwater discharges, there has typically been no “operator” controlling the rate of runoff, adjusting treatment processes based on real-time system feedback, and having the authority to enforce upstream source control. The NPDES program also never had the infusion of federal funding that wastewater treatment plants had in the 1970s; even now many urban areas struggle to get public adoption of stormwater utility fees that can enable reliable ongoing funding.
Improving the System
In the mid 2000s, a blue-ribbon panel was convened by the National Academy of Sciences at the request of the Environmental Protection Agency (EPA) to review the NPDES permitting program and make recommendations to improve it. Its findings are captured in a 2008 National Research Council report, “Urban Stormwater Management in the United States,” which is still very relevant today. This report drew attention to a range of issues, including the challenges arising from application of the water-quality-based CWA regulatory framework to managing stormwater volumes and rates, the lack of rigorous end-of-pipe monitoring, a focus on parcel-level compliance instead of watershed health, and a need for national regulation of products known to contaminate stormwater such as chlorides, pesticides and vehicular pollutants. This report advocated for watershed-based stormwater permits, the use of metrics such as impervious cover as proxy for pollutant loading, increased federal funding, and more effort to research and measure stormwater control performance.
The report led EPA to initiate a national rulemaking effort to strengthen the stormwater program. Surveys were conducted, listening sessions were held and diverse stakeholder input was collected. Unfortunately, this effort stalled; in 2014, the EPA formally pivoted away from the rulemaking process and committed to working within existing regulatory frameworks to try to achieve “significant, measurable and timely results.” This shift also came with a renewed commitment to promoting green infrastructure.
It’s Getting Better
Since that time, some important themes have emerged to alter the stormwater industry. For example, EPA focused on clearing the backlog of expired municipal permits and pushed for incorporation of stormwater-source total maximum daily load allocations into NPDES permit requirements. There also has been a push for stormwater utility formation and an asset-management approach to stormwater infrastructure. Regional stormwater projects have been encouraged in watershed-based permits and have been enabled by credit-trading programs that allow funds to be spent where they will have the greatest environmental impact.
And as the impacts of climate change are felt more acutely—with extreme storms and droughts becoming more commonplace—the benefits of a “one-water” approach become more important to realize. We even have the promise of increased federal funding for stormwater infrastructure with boosted state revolving-fund allocations and new programs authorized by the Infrastructure Investment and Jobs Act of 2021.
Work Still Needed
Even with these incremental changes, we still have persistent issues (e.g., chlorides in the northern states, nutrient enrichment and wet-weather bacteria concentration exceedances, etc.) that aren’t likely to be resolved without fundamental NPDES program changes. We also must deal with emerging pollutants such as PFAS/PFOA and 6PPD-quinone that are persistent and ubiquitous as well as the increasingly dire effects of climate change. Although I appreciate EPA’s promotion of the multiple benefits of Green Stormwater Infrastructure, I think we’re going to need something more potent.
If we’re serious about meeting the fishable and swimmable goals of the CWA, we likely need to transition away from our personal automobile-based transportation paradigm toward more mass transit and with far fewer commuting miles by any means. We need to take every opportunity to minimize the use of pollution-generating products and materials, especially by replacing them with more-benign alternatives. We need to overhaul planning and zoning regulations to encourage ultra-dense urban development patterns that grow upward instead of outward for maximum utility efficiency and to minimize the conversion of rural or agricultural land on the urban perimeter.
Especially in arid regions, we need to build stormwater-management infrastructure that’s integrated with wastewater and water-supply infrastructure so water is recycled throughout the built environment with captured rainwater as the primary new supply. We need to take bold action in flood-prone areas and in low-lying coastal areas to move valuable infrastructure out of harm’s way.
Taking such actions would be necessarily disruptive, technically challenging, unavoidably expensive and may be politically infeasible. But, under the existing NPDES framework, permittees are legally required to meet extremely challenging water-quality standards that may be impossible to achieve without taking them. Something has to give.
It’s just as true today as it was 50 years ago that stormwater discharge quality will be dictated at least as much by what’s happening upstream in the watershed as by the stormwater control measures employed downstream. It’s also as true today as ever that the pace of progress toward meeting the CWA goal of protecting and restoring our receiving waters will be dictated by the willingness of the general public to support new stormwater management programs and practices with their actions, wallets and votes. We can do it, but whether we do it is up to you.