Seven Views of the Fate of the Clean Water Act

Janice_Kaspersen_Blog

No matter what happens at the national level with funding or changing regulations, protections for clean water aren’t going away. That was the message (I’m tremendously oversimplifying, but I’ll try to elaborate below) from some of the country’s top experts on water quality as they looked at the current regulatory environment, funding issues, and a great deal more.

I’m writing this in Seattle, on the last day of the StormCon conference. Seven panelists convened to close the conference in a discussion moderated by Forester’s managing editor, Arturo Santiago. The seven are:

  • Seth Brown, Principal and Founder, Storm and Stream Solutions
  • Chris French, Director, Stormwater Programs, Water Environment Federation
  • Gayle Killam, Deputy Director, Science and Policy Program, River Network
  • Anna Lantin, Senior Vice President, Michael Baker International
  • Jim Lenhart, Chief Technology Officer, Stormwater, Contech
  • Cory Rayburn, Watershed Manager, City of Atlanta Environmental Management Division
  • Scott Taylor, Senior Vice President, Michael Baker International

Here are a few highlights from the panelists’ comments:

Despite what happens with funding for EPA and other agencies, “All of our water regulations are rooted in the Clean Water Act, and nobody’s going to be rolling that back,” said Jim Lenhart. He said we should also remember the power of third-party lawsuits; if there is an attempt to roll back regulations, undoubtedly stakeholders such as environmental groups will bring lawsuits to challenge those efforts. (It works both ways, of course, and those who oppose any new regulations that might be implemented can sue to challenge them as well.)

Chris French noted that the administration is already facing a lawsuit from the group Public Citizen and others concerned with the environment and public health over the “two-to-one” executive order, which says that for every new regulation federal agencies implement, they must eliminate two existing ones. Despite that order—and even if the suit is not successful—there are provisions in the Clean Water Act and many other regulations, he noted, to prevent “backsliding”. In other words, it’s difficult to undo protections that are already in place. He also said that there seems to be little public support to reduce watershed programs like those in the Chesapeake Bay region; and although the White House’s proposed budget zeroed out funding, or nearly so, for many such programs, “ultimately the power of the purse is with Congress,” which will be reluctant to cut popular programs. He also said that a renewed focus on infrastructure spending bodes well for state revolving loan funds, which are level now and might even see increases. He acknowledged, though, that although he doesn’t see the Clean Water Act itself being rolled back, the rate of its enforcement might be pared back.

Several panelists addressed how local efforts complement—or in some cases, might make up for gaps or shortfalls in—regulation and enforcement at the federal level. Anna Lantin discussed TMDLs, noting that although some are developed by EPA or by state regulators, others are developed by local stakeholders; and we might even see more being developed than previously. Cory Rayburn talked about Atlanta’s efforts with green infrastructure—making it mandatory for development and redevelopment—and emphasized the importance of working “across the aisle” with different groups, such as developers who might initially be opposed to such requirements. The City spent 10 months in discussions and meetings with developers to convince them of the co-benefits of using green infrastructure, including economic and social benefits, to get them onboard; “we didn’t battle it out in front of the council,” he said. Gayle Killam discussed the role of non-governmental organizations and other “third party” players in the clean water arena. Seth Brown talked about public-private partnerships, or P3s, of which the current administration has been supportive. He noted that about 75% of MS4s don’t have a stable revenue source such as a stormwater utility fee; and he also commented on the state revolving fund, which he, like Chris French, believes will be funded at a stable level or even increased. The US does not use P3s as much as some other countries, he noted—in fact our project funding in that area is about on par with Canada’s, despite our much larger economy—but they may be an increasingly attractive option.

Finally, several of the panelists, led by Scott Taylor, talked about “cooperative federalism,” or the direction EPA seems to be moving, as represented by some of EPA Administrator Scott Pruitt’s remarks before and since taking on that role. It refers, in part, to the states being in a better position to implement the Clean Water Act rather than a top-down approach, and to allowing the states to tailor their own approaches to the CWA. Some likely results, said Taylor, might be fewer EPA audits (relying on carrots rather than sticks); fewer rulemakings from EPA; and an increase in guidance documents and tools from EPA, which could be beneficial. In most states that have their own permitting authority—the great majority—he said he’d expect business as usual: “Whatever you’ve got now in terms of implementation is what you’ll see going forward.”

Much more than this, of course, was discussed during the nearly two-hour session, which I’ve simplified and pulled out a few highlights from here. If you attended—or if by chance you were one of the panelists and are reading this—please feel free to leave comments and clarifications below, or continue the discussion. I hope we will have similar panels and exchanges of ideas at future conferences, including next August at StormCon 2018 in Denver.

I also want to acknowledge here all of our StormCon speakers—more than 150 individual presenters—who provide the content that makes the conference possible; and I’m going to list by name the often-unsung heroes who help make things run smoothly: the moderators who oversee the individual sessions and introduce the speakers. A big thank you to all of you.

  • Marcella Bondie Keenan, Center for Neighborhood Technology
  • Esther Chang
  • Jeanne Dorn, King County, WA
  • Tanyalee Erwin, Washington Stormwater Center
  • Jeanne Finger, City of Spokane, WA
  • Stacy Gillman, Douglas County, NE
  • David Hanny, Barton and Loguidice
  • Fred Kraekel, Hydro International
  • Alice Lancaster, Herrera Inc.
  • Ben Leonard, Washington State University
  • Daniel Lipinski, SoundEarth Strategies
  • Jasmine Prat, Washington State University
  • Krista Ratliff, Oregon Department of Environmental Quality
  • Andy Reese, Amec Foster Wheeler
  • Thomas Robinson, Barton and Loguidice
  • Carrie Sanneman, Willamette Partnership
  • Arturo Santiago, Forester Media
  • Emily Shine, Forester Media
  • Alison Sienkiewicz, SoundEarth Strategies
  • Jason Spruit, Forester Media
  • Katrina Sukola

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