A Cleaner Water Act
The Clean Water Act has been a success, but it’s out of date and producing diminishing returns. Here’s how we modernize it.
In 1969, I boarded a bus in the suburbs of Cleveland for a school trip with my fellow fourth graders into the center of one of the great industrial cities of the world. As we drove downhill past thriving neighborhoods and humming plants, my face was plastered to the window, in awe of the leviathan that we were rolling into. The bus took us to an area called the “Flats,” a neighborhood that traversed the Cuyahoga River, which snaked through the middle of Cleveland and delivered the lifeblood of coal, iron ore, and other resources that powered the city.
When we got out of the bus to explore some more, my classmates and I felt like we had stepped into a cloud of smoke. That morning’s fresh breeze had given way to a smelly cloak that hung heavily around us. Walking over to the river, we saw what looked like a finger painting—water that swirled with colors and emanated aromas that cut through even the smoke that surrounded us.
“The sweet smell of success,” the bus driver exclaimed.
Our class became environmentalists right then and there, even if we did not know quite what that meant. When I got home, I wrote a letter to President Nixon asking him to help protect the planet for kids. My career in some respects was set that day.
That year, the Cuyahoga caught on fire from the sparks of a passing railcar. That and other highly visible eco-catastrophes of the era created the consensus that led to the surge of environmental legislation in the 1970s. The National Environmental Policy Act, signed on New Year’s Day in 1970, envisioned a federal government that protected the environment, and a reorganization plan proposed by President Nixon later that year created the U.S. EPA. The Clean Air Act in 1970 initiated regulation of pollution befouling the air. And, especially gratifying for the kids on that class trip, the Clean Water Act was passed over a Nixon veto in 1972.
Four decades after the Clean Water Act’s passage, it’s safe to say that it has been a rousing success. Seventy species of fish swim the Cuyahoga again (ten fish in total were found when formal fish counting began in the 1980s!), and the rivers that course through our major cities are healthy and thriving. The Clean Water Act should be celebrated for what it is—a flagship environmental achievement, one of the great government success stories of our time.
But that is not the end of the story. For the act has been a victim of its own success. As our rivers get increasingly cleaner, so too are costs going higher and complaints of government overreach growing louder—and, to a certain extent, more justified. Critics highlight billions of dollars spent on tiny improvements, while new sources of pollutants flow into bodies of water almost untreated. Improvements have stalled and new stresses like toxic red tides and oxygen-destroying algae blooms have become more prevalent. To ensure that our waters remain clean for another 40 years, we need to update the Clean Water Act for a new era, one that poses different challenges than those we faced four decades ago.
A Rousing Success
The act owes its success to a feature borrowed from a nineteenth-century law designed to keep trash out of the growing country’s harbors. The Rivers and Harbors Act of 1899 prohibited the discharge of refuse into the navigable waters of the United States and their tributaries. With that statute, the act of polluting was for the first time deemed unacceptable and outlawed whether or not the refuse caused direct harm. A polluting boat captain could not claim as a defense that the harbor was fully navigable despite the refuse, or that the trash would wash away harmlessly.
Edmund Muskie, the Maine senator who championed the 1972 Clean Water Act, translated this principle into a groundbreaking “technology-based” permitting system. Discharging pollution from “point sources”—mostly wastewater plants and factories with specific discharge pipes—was prohibited unless a permit was issued. Recognizing that wastewater and industrial plants would not be able to eliminate pollution overnight, the permits required the implementation of technologies to reduce pollution with standards that became more stringent over time. Gradually, pollution would be eliminated from our waters.
Companies tried to duck the law by claiming that certain waters were so big that pollution was diluted to a harmless state. Others argued that requiring the best technology would put them out of business. Still others argued that national technology standards trampled on state rights. Yet the bill passed, with the House overriding a veto by Nixon, who worried about the bill’s cost, by an astounding 247-23.
Ever since its passage, the courts, including the Supreme Court, have held that the law is constitutional for the most part. Dischargers must comply, courts have found, or face fines, sanctions, or even closure; in addition, they have almost no defense based on the health of the receiving body of water or the cost of the regulations. (Important questions do remain, particularly the extent to which the Roberts Court views the Commerce Clause as allowing the federal government to regulate local waters.)
Forty years after its passage, the act can be credited for the profound improvements in our waters. It has bolstered public health, our agricultural system, and the economies of our river and coastal communities. These improvements can be glimpsed close to the capital. In 1965, President Lyndon Johnson called the Potomac River a “national disgrace” because of its condition as a cesspool of sewage and industrial pollution. Today, the river is one of ten locations selected for a national bass fishing tournament, at a site just downstream from one of the largest wastewater treatment plants in the world. On the economic front, the Maryland Department of Natural Resources in 2004 placed the value of the Chesapeake Bay to Maryland and Virginia at more than $1 trillion, with an annual economic benefit of $33 billion to $60 billion.
The Clean Water Act has helped restore and protect regions like the Chesapeake all across America. And yet this very success has helped breed complacency, and it risks spawning a failure that could splinter the consensus behind the law and bring to a halt the progress we’ve made in guaranteeing clean water. What happened?
Blue Plains on the Potomac: A Case Study
Let’s consider Washington’s advanced wastewater plant at Blue Plains, the largest in the world, across the Potomac from Alexandria, Virginia. Every day it treats about 300 million gallons of wastewater—about as much as would fill a professional football stadium to the rafters. Most of this water comes originally from the Potomac, which after its use by people in a 725-square-mile region surrounding Metropolitan Washington (including parts of Maryland and Virginia) is transported to Blue Plains through 1,800 miles of pipes and dozens of pump stations. Over time, as clean-water standards have tightened, Blue Plains has removed an ever-larger percentage of pollutants before discharging the water back into the Potomac. But as the standards have grown more stringent, the costs have gone up exponentially while the benefits have gradually diminished.
Take nutrients. These may sound healthy, but nutrients are actually the byproduct of the food and waste we flush down our toilets and sinks. Nutrients also come from animal waste, leaves, and other organic refuse that wash off our streets. If too many of them flow into our rivers, they function just like fertilizer on our lawns. Algae and other plants thrive and die—a lifecycle that absorbs oxygen—and other organisms, including fish, oysters, and many other species, literally choke from the lack of oxygen in the water.
The nutrients of concern at Blue Plains are nitrogen and phosphorus. In 2000, Blue Plains completed its first phase of nitrogen removal, and by adopting the best technology under the act reduced the concentration of nitrogen in its effluent (or the discharge from the facility) from 14 milligrams per liter to 7.5 mg/l. That removed 7.3 million pounds of nitrogen per year from the plant’s discharge. The cost for Blue Plains? Little more than $16 million—a relative bargain. This reduction allowed the District of Columbia to meet the Chesapeake Bay Agreement goal of a 40-percent reduction of nitrogen—the only jurisdiction in the Chesapeake watershed to do so. In the next phase, which ended in 2010, nitrogen concentrations were reduced from 7.5 mg/l to 5 mg/l, which amounted to a further reduction of 2.9 million pounds per year. But this second-phase reduction cost about $130 million—about eight times the original, larger reduction.
In 2010 the permit ratcheted down again, mandating that the facility meet an even lower target by 2015. Now Blue Plains is required to further reduce the nutrients from 5 mg/l to 4 mg/l, or an additional reduction of 1.2 million pounds per year. This further incremental reduction will cost $1 billion. That is not a typo: The incremental reduction is now for one more milligram per liter—one-tenth the improvements made to date—and the projected cost for this reduction is $1 billion.
To recap: Going from 14 mg/l to 7.5 mg/l, a reduction of 7.3 million pounds a year, cost $16 million; going from 7.5 mg/l to 5 mg/l, a further reduction of 2.9 million pounds a year, cost $130 million; and going from 5 mg/l to 4 mg/l, a still further reduction of 1.2 million pounds a year, will cost $1 billion. The capital cost of infrastructure to remove one pound of nitrogen has increased about 380 times, and in the last iteration alone, we achieve one-sixth the nutrient reduction for 60 times the unit cost of the first incremental reduction.
Compounding the reality of exploding costs and diminishing benefits is a stubborn fact about the source of pollutants to the Chesapeake Bay. From 1985 to 2010, the percentage of nutrients from industry and wastewater plants declined by 31 percent, representing a decrease in the total loads to the bay from 18 percent to 16 percent. This reduction is even more impressive when you remember that more than five million people moved into the region over that time.
On the other hand, nutrients also come from “nonpoint source” pollution. In contrast to the discrete point sources of industry and utilities, nonpoint-source pollution flows into our water bodies via the rainwater runoff from the land that surrounds us, be it farm fields, front lawns, paved roads, or parking lots. This type of pollution has increased from 56 percent to 58 percent for nitrogen and 54 percent to 71 percent for phosphorus, in large measure due to both suburban sprawl and the reduction in point-source discharges. Homeowners and farmers alike frequently overfertilize their land, much of which runs off in the rain. Animal waste, decaying leaves, and a wide range of oil, grease, metals, and other pollutants spill off the land in rainstorms as well. This rainwater flow heads into the nearest water body. Algae in the water don’t care whether the nutrients come from wastewater plants or from runoff—they just gorge on the nutrients and absorb the oxygen in the water, causing other aquatic life to struggle.
Such nonpoint-source pollution is now the major impediment to good, quality water. Yet the Clean Water Act has not evolved to meet this reality. Blue Plains, just one of 483 wastewater plants in the six-state region that drains to the Chesapeake, is spending $1 billion to remove the next increment of nutrients. In comparison, the Natural Resources Conservation Service, the largest federal supporter of programs to reduce nutrient pollution from agriculture, spent $306 million in total over the entire Chesapeake region—from 1994 to 2005! But Blue Plains’s discharge, huge though it may be, is just 2 percent of the total nutrient load that goes into the Bay. Today, agricultural runoff causes 20 times more of the problem. Which is why, despite the enormous expenditures by industry and utilities, the capital region’s rivers and the Chesapeake Bay are no longer improving. The act’s success has ensured that industry and utilities are no longer the largest share of the problem. Even if we reduce pollutants from these sources to zero, the area’s waters would still not be that much cleaner, all because of nonpoint-source pollution.
Compounding the failure is the unfairness of overburdening metropolitan ratepayers with a disproportionate share of resolving our clean-water problem. Ratepayers foot the bill for the billions of dollars of huge capital projects, despite the relatively minor incremental improvements to water quality. For District of Columbia ratepayers, total monthly bills have increased by more than 70 percent in the last five years—from about $40 a month to more than $70—a trend likely to continue for the foreseeable future and a fate shared by ratepayers countrywide.
Critics, then, are fundamentally right. The Clean Water Act today is driving costs that are unfair, overburdening metropolitan populations while the major sources of problems to most water bodies—located in suburban and rural areas—go mainly unchecked. Federal and state bureaucracies continue to ratchet down the discharge levels from certain sources and not others, following an approach informed by the problems we confronted in the 1960s.
To be fair, the Clean Water Act has provisions that seek to reduce nonpoint-source pollution. Although an afterthought in the congressional debate that led to the statute in 1972, these sections of the act enable the development of “pollution diets” that can help identify reductions from all sources. A “pollution diet”—technically called a Total Maximum Daily Load (TMDL)—is the total amount of a pollutant a water body can handle safely without harm to human or aquatic life. If a water body exceeds the TMDL, regulators allocate reductions from all sources, including nonpoint sources. Yet to date, most of the reductions continue to focus on metropolitan areas, aren’t nearly as stringent as the technology-based requirements on industry and utilities, and are largely voluntary for agriculture. Voluntary reductions before 1972 brought us burning rivers. Voluntary reductions today are about as successful.
A New Clean Water Act
The Clean Water Act needs to change. What should a new and improved act look like? For the Clean Water Act to evolve, we need to start with some basic principles.
- Worst risks first. We need to tackle the worst sources and problems first, wherever they may be located. Otherwise, we are doomed to fail from the start.
- Sensible technology standards. Uniform, simple technologies to achieve improvements need to be established for identified sources.
- Skin in the game. Everyone who contributes pollution to our water bodies needs to contribute. The cost need not be steep if everybody helps.
- Requirements and funding. Improvements need to be mandated, with substantial financial support from a sustainable funding mechanism.
- Watershed basis. This effort should be done throughout the country on a watershed basis, so that funding and programs could be tailored to the needs of each water body.
A walk-through will help illustrate how an updated Clean Water Act—I propose calling it the “Healthy Waters for the 21st Century Act,” or “H21”—would work. Let’s stick with the Chesapeake Bay as an example.
First, the EPA and the states would identify and quantify the sources of pollution and the best available technologies or approaches to reduce pollutants. Starting with the largest (or perhaps the most dangerous) sources of pollutants first, best technologies would be identified and required to be implemented on a reasonable schedule. As the pollutant sources at the top of the list are successfully addressed, sources further down the list—which to that point were not prioritized—move up. That’s one key change from current law: No source would need continuous ratcheting down if other sources are contributing more to the problem.
For the Chesapeake Bay, standards to reduce pollutants from wastewater facilities would be a priority and would be ratcheted down over time—until more cost-effective reductions can be achieved from a new source. At this point, which for many facilities is already upon us, uniform standards and requirements would shift our focus onto new sources—most likely nonpoint-source runoff from farm fields and suburban lawns and parking lots—until similar reductions are achieved. Over time, reductions could shift back and forth between known sources, or perhaps shift to new sources or even new kinds of pollution. One can easily imagine shifting focus from further reductions in nutrient pollution, for example, to developing and implementing standards to reduce endocrine disrupters or pharmaceutical pollutants instead.
Second, funds to finance these operations would be collected from all landowners and dischargers and then redistributed to the pollutant sources where the highest reductions and benefits can be achieved. States would receive funding in proportion to their contribution of pollutants to the bay, and would distribute funding to the sources with new reduction requirements. Reductions are mandated but come with substantial initial funding, slowly reduced over a significant time frame. Funding will be constantly redistributed to a rolling list of the highest-priority sources.
Going back to the Chesapeake, funding would flow to wastewater utilities as long as reductions from those sources were the highest priority. As the focus shifts to reducing nonpoint-source pollutants from agriculture, funds would be routed to directly subsidize reduction practices by farmers, whether through the states, through farm organizations, or perhaps with a direct check to the farmer.
How exactly will funds be raised? Every landowner in the Chesapeake Bay region would receive a water bill. For those with existing water bills, a line would be added that would be identified by the local river or water body and the Chesapeake—say, for example, “Clean Water: Anacostia/Chesapeake.” A relatively modest charge—somewhere in the range of $10-$40 a month—would be collected with this line item, which would be uniform for groups of landowners. For those landowners not on public water, this would be a new bill with a similar descriptive formulation. Funds would be deposited in an H21 Fund.
Two approaches should be considered for setting rates for the water bill. One would set a fixed charge based on groupings of landowners by the size of land holdings. For example, residential landowners owning less than an acre would be charged $10 a month. Those who own one to five acres would be levied $20 a month, and those who own anything larger would be charged at $40 a month. A similar tiered system could be developed for nonresidential and other categories of landowners.
A second approach would institute a charge based on the amount of “impervious cover.” Impervious cover is a hard surface that does not allow rainfall to be absorbed into the ground—like a roof or a parking lot. The amount of impervious cover dictates how much of the rain runs off into the surrounding environment—taking with it the oil, grease, nutrients, and other refuse that may have collected there. A funding approach based on impervious cover could be paired with a credit for landowners who adopt practices to reduce impervious cover and retain rainwater on their property.
These techniques, called “low-impact development,” seek to mimic Mother Nature, are frequently inexpensive, can increase property values, and reduce water bills. One technique, for example, is to connect gutters to rain barrels. The collected rainwater is then used to nourish a “rain garden,” designed to hold the water while sustaining plants, bushes, and trees. Using collected rainwater to water plants obviously reduces water bills. Under H21, a landowner could also receive a significant credit because the rain gardens capture pollutants as well.
The first approach is easier to implement and simpler to manage, but does not by itself offer an incentive to encourage green projects that reduce pollution. The second approach has a built-in incentive system, but requires detailed technical information to enable lot-by-lot calculations and review of practices and improvements and how they are maintained over time. Both fund the effort to clean water from dedicated fees associated only with this objective, rather than relying on annual appropriations from general funds. A dedicated funding stream guarantees continuous improvement, and would come from, and be allocated to, those who also directly enjoy the benefits.
Either approach would be paired with an assistance program for any low-income landowners. The successful program used for water utility bills in Washington allows residents who have already qualified for federal energy assistance to receive a significant portion of their water and sewer service each month for free. This program could be employed to reduce this new charge for our lowest-income residents.
Although not central to this proposal, I recommend considering a second source of financing for the H21 Fund: pollutant fees for products that frequently show up in the runoff that befouls our waterways. In 2009, the District imposed a five-cent fee on every plastic and paper bag used in groceries and restaurants, both to decrease the incentive to use plastic bags and to raise funds dedicated to covering the cost of cleaning waterways that were increasingly clogged by them. The results have been spectacular. Even though the charge is quite modest, the use of plastic bags has plummeted as the use of reusable bags has exploded. And although not as much revenue has been raised as anticipated because people have modified their behavior so dramatically, there is nonetheless dedicated funding for stream cleanups and other similar actions. Financing for the H21 Fund could be buttressed by adding small charges to products that regularly end up in our rivers—plastic bags, bottles, fertilizers, personal-care products, and others.
Water, Water Everywhere
The urgency of updating the Clean Water Act for the new century cannot be emphasized enough. The value of clean water is so obvious that it hardly needs elaboration. We rely on clean water to live, and investing in clean water is—or should be—an uncontroversial position.
But there is a broader economic justification for reform. When we consider the central role of water to business, to agriculture, to great city waterfronts, to our fishing and sport industry, and to the summer dreams of almost everyone, an investment by all of us in the protection of water is a direct and immediate way we can support good jobs and the economy.
For urban dwellers, a new Clean Water Act would result in a badly needed reordering of priorities toward infrastructure improvement. The American Society of Civil Engineers graded drinking water and wastewater infrastructure in the United States a D-. Our degraded infrastructure is an economic and environmental catastrophe waiting to happen: Anyone who has lost water service due to a main break knows how life and work grind to a halt until the system is repaired. Under H21, massive expenditures for marginal improvements—the norm today—would be put on hold. For most areas, this shift will allow municipal utilities to reallocate ratepayer funds toward the maintenance and upkeep of basic water and wastewater systems. For decades, utilities have focused on implementing the next regulatory requirement, often at the expense of the pumps, hydrants, pipes, and valves that actually deliver the service to the customer.
Utility ratepayers will have to cover a new charge, and the funds raised often will be redistributed to faraway parties. Some may argue that this will be another financial obligation shouldered by urban and suburban ratepayers, benefitting mostly rural households that have avoided the enormous costs imposed over the last decades. Yet this charge will be dramatically less than the cost of the next high-expense/low-benefit project that is inevitable on our current trajectory, and the system that actually delivers water services to ratepayers will be improved. The bottom line is that urban and suburban ratepayers are currently shouldering almost the entire burden for marginal improvements. H21 will reduce that burden and shift the funds to where they can do the most good.
For outer suburban and most rural dwellers frequently served by onsite water supply (a well) and wastewater treatment (a septic system), H21 will still impose a new charge for water quality even though no direct public utility service is provided. But they will reap benefits from this investment. In almost every part of the country, net funds from H21 will flow into suburban and rural areas to reduce nonpoint-source pollution, rather than fund marginal improvements from treatment plants. Not only will necessary environmental improvements be funded on a massive scale, but the jobs and businesses that do the work will benefit in those areas as well. A job building a storm water retention system cannot be sent overseas.
The agriculture sector will see other economic benefits. In my experience, improvements to farming practices that protect water quality ultimately save farmers money. For example, H21 would likely establish parameters on the use of fertilizers, just as industry is regulated on its use of chemicals. But bear in mind that farmers will receive direct financial support to help them be more targeted in their use. Many farmers overfertilize to add a margin of safety for production, or just to keep with past practice. With funding from H21, farmers can do the testing and analysis to reduce use of fertilizers and see less money wash away in the first rainstorm after an application. A similar benefit comes from retaining more rainwater—to store it for later use in what seems like more frequent and widespread droughts.
Moreover, farmers are very conscious of the need for clean water in their local water bodies—for their fields and livestock, and of course for their personal water supply. Although this is obvious, it is helpful to remember that every step to improve water quality downstream in the Chesapeake Bay maintains the water quality of local rivers and lakes. For the local farming and recreational jobs that rely on clean water, H21 provides the funds to protect local livelihoods.
The likely shift from expensive capital projects to decentralized installation of water quality protection at thousands of individual suburban and rural parcels accentuates a key economic change. Most work at wastewater facilities is undertaken by engineering firms, which often move specialized personnel from project to project. Under H21, efforts to reduce suburban and rural pollution will require skills and techniques that need not just an initial installation, but long-term maintenance and upkeep on each parcel of land. A decentralized solution will then not only protect the water but will also build local businesses and lead to the permanent expansion of local jobs.
The dramatic infusion of funds into water-quality protection will also drive the market and reduce costs. The installation of a green roof—a roof garden that can hold stormwater, absorb pollutants, and also cool the building below—is still relatively unusual and therefore relatively expensive. The installation of thousands of low-impact development techniques—green roofs, bioswales, pervious pavement, water-quality catch basins, and much more—would support new businesses and reduce the unit cost overall as more firms compete for the work.
The Future of Clean Water
I started my journey as a small boy visiting the Cuyahoga River, witnessing the horror it had become. That jarring experience inspired my career, one that has seen many of the problems of that era largely solved. We all should celebrate the success of the system we put in place to reverse that catastrophe, a historic victory in my view.
My journey in the 40 years since has brought me to a world of different challenges. A fourth grader today would not see a factory belching waste into the air and water. Instead, she would puzzle over the algae blooms, red tides, and dying fish in our waters. These problems are caused by thousands of small environmental injuries, most nearly invisible. Yet the need to achieve clean water is as compelling as it was 40 years ago, and maybe even more so, as our planet seeks to absorb a population that has grown by more than three billion since 1972.
A new Clean Water Act—one that builds on the success of the original, but that is informed by the problems of the twenty-first century—is essential if we are to keep our promise of clean water for all. Not only will the reform laid out here lead to improvements in our environment and public health, but amending the act to tackle today’s problems can also provide a crucial economic boon in these uncertain times.
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