Murky Boundaries of Federally Regulated Waters

I will do my best to stick to scientific matters rather than political opinions in this blog, but I have some specific beefs with the Trump administration based on the intersection between science and policy. I’m specifically opposed to a number of Trump’s proposed changes in his recently released budget proposal; to his appointees running the Department of the Interior and EPA, who are rolling back both environmental data collection and planning for climate change; and to Trump’s executive order regarding the Clean Water Rule. I will discuss some of the implications of cutting EPA’s funding by 30% and rolling back climate change rules on a different post – note that this directly affects my work as an environmental consultant, so take my opinion with a grain of salt – but I want to focus here on the Clean Water Rule and the controversy around it.

The “Clean Water Rule” was finalized under Obama’s EPA in 2015, and attempts to clarify one of the muddiest parts of the Clean Water Act, which turns 45 this year. The Clean Water Act empowered the government to regulate “navigable waters of the United States”, which is well and good, but most water in the U.S. is not navigable per se. Does this mean that if you don’t bother to dredge channels to keep them open for navigation by boat, that they don’t need to be kept clean? No, the Supreme Court has clarified, most recently in 2006, that “waters of the U.S.” include those water bodies with a “significant nexus” to navigable waters.

Although marginally clearer than the Clean Water Act language, this definition still presents challenges to those who work in the realm of science, rather than the realm of law, on a day-to-day basis. For example, a good water scientist/engineer is well aware of the hydrological connection between surface water and groundwater, wherein surface water can flow into or “recharge” groundwater, as well as the opposite behavior where groundwater flows into surface water. The influence of groundwater means that surface water bodies that appear otherwise unconnected may have a fully operational subsurface pathway between them, which may even govern their flow.

The other scientific wrinkle to the definition of “navigable waters” is that the pollutants in major rivers and lakes in the U.S. often originate from smaller creeks, channels, wetlands, and groundwater, which flow into the major bodies of water. Some of these, particularly in the American West, are ephemeral, so they’re only potentially navigable some parts of the year. So, if you’re limited to regulating navigable waters alone, you may not be able to control the inputs of pollutants to the water bodies.

The EPA under Obama attempted to clarify this rule, to set boundaries on what is and is not a body of water with “significant nexus” to navigable waters. Here’s where things get controversial. Let’s say you have a channel in your backyard that drains your septic system or your small organic chicken coop (I practically live in Berkeley). If that channel flows into an ephemeral creek, which flows into, say, San Francisco Bay, which is navigable, you could potentially be in violation of the Clean Water Act for discharging pollutants (in this case, nutrients with no place to go, which will lead to algal growth in the creek or the Bay). But, how could this happen to me?!! You, the septic system/chicken coop discharger, may seem like small potatoes, but these pollution issues are classic examples of the “tragedy of the commons”, and in fact, lots of smaller/moderate dischargers have a disproportionate effect on downstream water bodies, even those that are major drinking water supplies, as shown in the maps on this website. Hate to break it to you, but yes, your hypothetical septic/chicken coop discharges matter, when you measure the mass of pollutants you discharge to the larger body of water.

Lots of industries, including oil companies, developers, ranchers, and farmers, consider the Clean Water Rule to be a government overreach, because it would require new permits for filling in or modifying surface water bodies that had no reason to be federally regulated, in their opinion. The Trump executive order, issued February 28 of this year, requires Secretary Pruitt to review the Clean Water Rule, with the purpose of rescinding or revising it to refer to a different Supreme Court definition of waters of the U.S., this one a very narrow opinion offered by Justice Scalia. According to this amusing article, Scalia’s opinion came from looking up “waters” in the dictionary:

In his plurality opinion, Scalia pulled out the Webster’s New International Dictionary 2nd Edition and looked up the definition of “waters.” It “includes only those relatively permanent, standing, or continuously flowing bodies of water,” he wrote, like “streams,” “oceans, rivers, [and] lakes,” not water that “flows intermittently or ephemerally.”

The rub is that Obama’s Clean Water Rule has already gone through the rule-making process, including public comment/review, and has been made into law. It has, of course, also been held up by court challenges since 2015, but it would be naïve of the Trump administration to assume that their preferred definition of “waters of the U.S.” would pass muster without similar immediate legal challenges. And, as the article above notes, Justice Scalia is no longer on the Supreme Court, whereas Justice Kennedy, whose “significant nexus” language forms the basis of current interpretation of the Clean Water Act’s jurisdiction, is alive and likely to weigh in on any challenges that make it to the Supreme Court.

So, Mr. Pruitt – feel free to begin the arduous challenge of rescinding/rewriting the “Clean Water Rule”, but good luck finishing it quickly in a manner that will hold up in court.

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drugs in drinking water

One of those news items that tends to freak out the general public is the idea of pharmaceuticals and personal care products (e.g., shampoo) in our water supplies.  There’s birth control in the water!  There’s ibuprofen in the water!  There’s Prozac in the water!  Time to panic, indeed.  What the news media doesn’t report (and, I suspect, doesn’t understand) is that the concentrations we’re talking about here are low.  Reeeeaaallly low.  Let’s think about a generic liter of water (a liter is a little more than a quart, for the metrically challenged out there).  A generic liter of water weighs about 1 kg / 1000 g / 2.2 lbs.  In the environment, it could easily have 100 mg (0.1 g) of calcium carbonate dissolved in it.  Calcium and carbonate are considered major ions in drinking water.  More minor ions include chloride (about 9 mg per liter in my drinking water supply (0.009 g)) and fluoride, added for dental health (about 0.8 mg per liter – 0.0008 g).  The drinking water standard for lead, which is a known toxin, is 15 micrograms (ug) per liter (= 0.015 mg = 0.000015 g).

The levels of pharmaceuticals that are being detected in water sources are on the order of nanograms per liter.  That’s right, a one-thousandth of a microgram, a one-millionth of a milligram, a one-billionth of a gram, a one-trillionth of a kilogram.  Since that liter of water weighs a kilogram, we talk about ng per liter as “parts per trillion”.  Frankly it’s a modern miracle that we can even measure stuff at these trace levels, and the advances in aqueous analytical chemistry are the only reason we know that some of these compounds are out there in the environment.  (Side note: in true chemistry, there is no such thing as a concentration of “zero”.  Instead, concentrations are not detectable by current technology.)

Don’t let the small concentrations fool you — these compounds are able to do damage at these uber-trace levels…but so far we’ve only seen evidence of damage to fish and amphibians.  When you think about our lifestyles compared to those of fish and amphibians, it kind of makes sense — we’re not the ones constantly bathing in the water in question.  We spend an awful lot of time exposed to air rather than water.  So take a deep breath (no pharmaceuticals in the air, knock on wood) and keep drinking tap water.

This gets tricky when it comes to regulations.  EPA is charged with protection of “navigable waters” under the Clean Water Act, and generally has developed standards for tap water and treated wastewater that protect human health and, to a lesser extent, the environment.  The Clean Water Act itself was born from environmental disasters like the Cuyahoga river catching fire and giant foam piles in rivers and lakes, but most of today’s regulations are about people, a subject most of us can agree upon.  I think it would be a striking development for EPA to begin regulation of trace levels of pharmaceuticals for the protection of aquatic life — there are plenty of non-environmentalists who couldn’t care less about some transgender frogs but sure do care a lot about their water and wastewater bills.

The main solution to these trace contaminants is additional wastewater treatment, whether at a treatment plant or in a septic system, since these point sources are the largest entry point for these compounds into the water supply.  Drugs are designed to deliver the target dose into the body, assuming some fraction of the active ingredient will not be absorbed by the body and will pass through to wastewater.  I don’t think we would ever decide to take lower doses of drugs to protect the environment (again, your cancer or a transgender frog?  I’d probably vote for your cancer, too).  In an odd development, I appear to be advocating for UV treatment of wastewater, once again.  (I did not see that coming, for the record.)

So what’s the conclusion?  Trace levels of pharmaceuticals are out there, but they aren’t high enough to affect human health.  They are high enough to affect fish and amphibians, and it will be interesting to see if EPA develops wastewater discharge limits to protect aquatic life from these compounds.

scaling up regulation that works

We have one fantastic example of environmental regulation that improved human health, reduced pollutant loads to the environment, and “let the market decide” the implementation to do so: cap-and-trade of sulfur dioxide to resolve the issue of acid rain.  There is much debate as to the potential effectiveness of cap-and-trade for other air emissions, namely mercury and carbon dioxide, but it has never been implemented for water emissions.

That is about to change.  Under the Clean Water Act, the EPA was tasked with first permitting various polluters to release maximum allowable amounts of pollution to the nation’s waterways.  If that strategy does not lead to the receiving water returning to a certain status of beneficial uses (such as recreation and drinking water), then the EPA was tasked with establishing a total maximum daily load (TMDL) for the impaired water body, from point (pipes) and non-point (agricultural runoff) sources, and then forcing all stakeholders to come into compliance with this permissable load.  Because non-point sources are much harder to regulate, the EPA hasn’t gotten very far on the latter task, and large watersheds that continue to have major water quality issues, such as the Chesapeake Bay and the mouth of the Mississippi River, reflect the lack of enforcement.

Well, the EPA and others are finally starting to sort out this TMDL business, and one innovative solution that will be launched as a pilot study is the trading of pollution credits between industrial facilities and farmers in the Ohio River basin, specifically in Indiana, Kentucky, and Ohio.  This is very promising, as it provides incentives for farmers to “implement relatively low-cost land management techniques to reduce fertilizer- and manure-laden runoff.  Those reductions would generate “credits” that farmers could then sell to industrial facilities for which comparably effective pollution reduction technologies would be considerably more expensive to install.”  Farmers are generally very resistant to emissions regulations, because they feel the cost burden is unfair and oppressive.  This technique, though, will provide financial incentives for them, and will spread the cost burden between industrial and agricultural sources alike.

The project could eventually include up to eight states in the Ohio River Basin, potentially creating credit markets for 46 power plants, thousands of wastewater treatment facilities and other industries, and about 230,000 farmers.

I just don’t see a downside.  Let’s hope that in 2015, when the pilot testing is over, that we’ll have a viable strategy to clean up more of the nation’s water bodies!