Ensuring Sustainable Restoration Efforts
By Enforcing Environmental Laws
Thom Cmar
Attorney, Natural Resources Defense Council
HOW Great Lakes Restoration Conference
September 23, 2010
About
• National non-profit membership group
• Founded in 1970
• Mission statement: “to safeguard the
Earth: its people, its plants and animals,
and the natural systems on which all life
depends” and “to restore the integrity of
the elements that sustain life – air, land,
and water – and to defend endangered
natural places”
About
• Staff of over 300 lawyers, scientists, and
technical experts
• 7 offices: New York, Washington DC,
Chicago, Montana, San Francisco, Santa
Monica, and Beijing
• Chicago office opened in January 2007 to
intensify NRDC’s advocacy efforts on water
and energy policy in the Midwest (including
Great Lakes issues and climate change)
The Clean Water Act
• The CWA’s objective is “to restore and maintain
•
•
the chemical, physical, and biological integrity of
the Nation's waters” and “to eliminate[]” “the
discharge of pollutants into the navigable
waters.” 33 U.S.C.§1251(a)
Kennecott v. U.S. EPA, 780 F.2d 445, 448 (4th
Cir. 1985) (it was the “intention of Congress” in
enacting the CWA “to use the latest scientific
research and technology in setting effluent
limits, pushing industries toward the goal of zero
discharge as quickly as possible”)
Critical importance of CWA is that it requires
public participation and allows for citizen
enforcement
Four threats to the Lakes that
the CWA can help solve
1. Nutrient pollution causes harmful algal blooms and
degrades water quality
2. Power plants dump thermal pollution into the Lakes
and kill fish in their cooling water intakes
3. Combined sewer overflows (“CSOs”) discharge
harmful bacteria and pollution that fouls our waters
and closes beaches
4. Vessels’ ballast water discharges introduce and
spread invasive species
• The GLRI addresses some aspects of these
problems, but will not solve them on its own
Numeric nutrient criteria
• EPA has acknowledged for at least 12 years
•
•
that numeric water quality criteria are needed
to establish baseline standards for restoration
and protection of nutrient-impaired waters
(1998 Clean Water Action plan)
Under Section 303(c) of the CWA, EPA has a
non-discretionary duty to promulgate new or
revised water quality standards for states if it
determines that they are necessary
EPA refuses to concede that it has made such a
determination for nutrients, however, and is
now engaging in a rulemaking to “clarify” that
such determinations can only be made explicitly
What can citizens do?
• Numeric criteria are the lynchpin – would allow
for easier development of protective permit limits
for point source dischargers (such as municipal
wastewater treatment plants) as well as Total
Maximum Daily Loads for watersheds
• Numeric criteria establish quantitative baselines
against which progress can be measured, and
innovative programs such as nutrient trading can
be established
• Citizens can petition EPA to make determinations
that numeric nutrient criteria are necessary to
stop harmful algal blooms in specific watersheds
• NRDC joined other groups in such a petition for
the Mississippi River Basin (Gulf dead zone), and
we are currently evaluating one for Lake Erie
What can citizens do?
• Citizens can also challenge nutrient pollution
•
•
•
from Concentrated Animal Feeding Operations
(“CAFOs”), which are regulated under CWA as
point sources
CAFOs that “discharge or propose to discharge”
are required to have NPDES permits and to
follow Nutrient Management Plans for proper
handling of animal waste that are enforceable
Many CAFOs do not have permits and can be
sued on that basis – in 2008, EPA reported that
over half the industry remained unpermitted
Citizens can also press for smaller AFOs to be
treated as CAFOs if they cause significant
pollution
Power plant cooling systems
• The vast majority of power plants in the Great
•
•
Lakes still use antiquated once-through cooling
systems that suck up hundreds of millions of
gallons of water per day and discharge it several
degrees hotter
The cooling water intake structures at these plants
kill massive amounts of fish because they are
slammed and caught against the intake screens
(impingement) or because they are sucked into the
plant itself through the intake (entrainment)
Bayshore plant on Maumee Bay impinges 46 million
adult fish per year and entrains over 2 billion fish
eggs, larvae, and juveniles (recent study shows
this costs local fishing economy up to $30 million
per year)
CWA requires better technology
• CWA requires Best Available Technology to
•
•
reduce fish kills through impingement and
entrainment – EPA draft rule expected by the
end of this year, but while that is pending
States must decide (like New York has)
CWA also requires States to regulate “heat” like
any other pollutant, unless company makes a
showing that it can discharge to a higher limit
without harming a “balanced indigenous
population” of fish, shellfish, and wildlife (not
just thermally tolerant species)
Otherwise, the State must require that plants
use Best Available Technology to reduce
thermal discharges and ensure that thermal
water quality standards are met
CSO pollution
• CSOs occur when combined sewers are
•
•
•
overloaded with storm runoff, causing
discharges of untreated sewage
CSOs are concentrated heavily in the Great
Lakes region – major reason why Great Lakes
beaches have a pollution rate twice the national
average (NRDC Testing the Waters report)
CSOs also harm the aquatic ecosystem and can
be a source of nutrient pollution
In Chicago, where CSOs also mean flooding in
people’s basements, CSOs begin to occur
starting with rainfall at only 0.67 inches
Long Term Control Plans and
Green Infrastructure
• A 2000 amendment to the CWA codifies EPA’s
•
•
1995 CSO Control Policy, which requires
municipalities to set up Long Term Control
Plans to reduce CSO pollution
Municipalities that fail to comply may be
subject to EPA or citizen enforcement
The need to comply with the CWA can be a
major driver of municipal investment in new
sewage infrastructure, and can create
opportunities for citizens to advocate for use of
green infrastructure as cost-effective
compliance method (use of natural systems
instead of pipes) – major priority for NRDC
Ballast water regulation
• Progress has been made in recent years
• Began with States (California & Michigan)
• Federal court decision in California
requires US EPA to regulate under federal
Clean Water Act
• Coast Guard has finally proposed
treatment requirements after years of
inaction
EPA exempted vessel discharges
• Less than one year after CWA was enacted, EPA
•
promulgated a regulation excluding discharges
“incidental to the normal operation” of vessels
from NPDES permitting. 38 Fed. Reg. 13,528
(May 22, 1973) (codified at 40 C.F.R.§122.3)
Federal court held that this regulation was
promulgated “in excess of . . . [EPA’s] statutory
authority,” because plain language of CWA
required regulation of ballast water and other
vessel discharges. NWEA v. EPA, 2005 WL
756614, at *13 (N.D. Cal. Mar. 30, 2005), aff’d,
537 F.3d 1006 (9th Cir. 2008)
EPA Vessel General Permit
• In December 2008, in response to NWEA, EPA
•
•
•
finalized Vessel General Permit to regulate 26
different “discharge streams,” including ballast
VGP does not require vessels to take any
significant steps beyond compliance with
existing Coast Guard and Seaway regulations to
reduce their discharges of invasive species
Does not live up to CWA: no further Best
Available Technology TBELs, no real WQBELs
NRDC and others are litigating in DC Circuit
CWA Section 401 Certifications
• Section 401 of the CWA requires that “[a]ny applicant
•
•
•
•
for a Federal license or permit to conduct any activity . .
. which may result in a discharge into the navigable
waters,” such as the VGP, be certified by States for
compliance with state water quality standards
Provisions included by State in Section 401 certification
“become a condition” on federal permit itself, federally
enforceable
New York has required new vessels to meet 1000x IMO
standards and existing vessels to meet 100x IMO
standards
Port of Oswego v. Grannis – NRDC intervened and
helped defend challenge to New York 401 certification
Other states have added conditions under Section 401
Proposed Coast Guard rule
• Coast Guard has proposed ballast water
•
•
•
discharge standards under NISA – 74 Fed. Reg.
44,632
Two-phase discharge standards: Phase I IMO,
Phase II 1000x IMO (subject to practicability
review)
Concerns about compliance timelines, potential
for further delays through practicability review
Not clear how/if Coast Guard will coordinate with
EPA and help enforce more stringent standards
required by CWA
How the CWA can help
1. Creates a binding legal mandate that
drives change and creates incentives to
innovate
2. Rigorous, scientifically based standards
that put environmental protection first
3. Public comment and public participation
are required
4. Citizens can act as “private attorneys
general” to enforce the law when
agencies do not
thank you
Thom Cmar
(312) 663-9900
tcmar@nrdc.org