An EPIC Response to EPA’s Nutrient Pollution Memo
By Harry Huntley and Bartlett Durand
On Tuesday April 5th, EPA’s Office of Water released a memorandum on “Accelerating Nutrient Pollution Reductions in the Nation’s Waters”. EPIC’s mission involves dramatic acceleration of environmental improvements, and one of our main topic areas is nutrient pollution, so our staff was very excited to see this memo. Rather than trying to condense the entire memo or our reaction to it into a typical blog post, I decided to write this the way I read the memo: reacting to a few quotes. This is not meant as a comprehensive response but rather a format to understand how we processed the memo, see how much of it aligns with our approach, and consider ways to move forward.
"Strategy 1: Deepen Collaborative Partnerships with Agriculture"
We believe this partnership model will be key to successfully reducing nutrient pollution in local waterways, allowing for safer drinking water, more productive commerce, and greater recreational opportunities. For 50 years, environmentalists have fought against agriculture, battling in courts and the halls of Congress, but in many places, the nutrient pollution issue is getting worse. The Gulf of Mexico dead zone continues to swell almost every year. There is certainly a place for litigation, but it will not solve the problem alone. We need to work with farmers and create demand for them to adopt conservation as part of their management strategy.
"Many of the most successful and lasting efforts to significantly reduce nutrient pollution have resulted from partnerships between farmers, ranchers, local water utilities, municipalities, industry, and conservation organizations"
This is precisely what EPIC and our partners at Sand County Foundation do. We conduct outreach and write agreements between cities and Clean Water Act regulators that clarify that wastewater treatment plants can meet their nutrient reduction requirements through watershed work. Often this means direct agreements with farmers or partnership with farmer groups to implement upstream nutrient pollution reduction practices. In a February 25th letter to then-Acting Principal Deputy Assistant Administrator for Water Radhika Fox, EPIC and SCF encouraged this approach, noting that we are “leading an effort to build partnerships between municipalities and farmers within their common watersheds. Voluntary partnerships with farmers, ranchers and other rural landowners provide some of the best possible opportunities to achieve nutrient goals collaboratively.“ We see our approach making progress every day in Iowa and Wisconsin.
One of the governing principles is "Support innovation".
Needless to say, the Environmental Policy Innovation Center also has “Support innovation” as one of our governing principles.
"The Office of Water is particularly interested in identifying and helping to scale programs that employ “outcomes-based” approaches that can maximize the delivery of water quality improvements and other benefits."
Sand County Foundation has long been a supporter of a Pay for Performance model, where payments are made for the environmental outcome, not for a practice. EPIC also encourages use of this and similar concepts in many environmental impact programs, such as the Clean Water Commerce Act in Maryland. In 2017, we released a report on outcomes-based approaches entitled “Nature, Paid on Delivery”.
"To leverage our current activities and identify other opportunities, our efforts will include: Intensifying our engagement in geographies such as the Chesapeake Bay, Mississippi River Basin…"
Humans are place-based creatures, and we see much greater connection and resulting impact when environmental efforts are tied to a place, not just to a concept. The Chesapeake watershed and Mississippi basin are two of the principal geographic areas EPIC has focused our nutrient pollution reduction efforts on as well, so we are encouraged EPA recognizes their importance. Our water quality partnerships are centered in the Mississippi River Basin, and in the Chesapeake Bay watershed, we have supported two pieces of legislation that will make it easier for private actors, including farmers, to invest in water quality improvements.
"The [Bipartisan Infrastructure] Law will be a key lever for scaling progress, with $60 million in new resources to implement the Gulf Hypoxia Action Plan"
The Gulf Hypoxia Task Force is in its third decade, and generates criticism that it remains focused on more studies while the Gulf hypoxic zone continues to grow. However, the Task Force is a powerful and useful network of federal and state government agencies to work together towards a solution larger than any of them alone. Injecting more funds is welcome, but they will need to be targeted towards action and innovative approaches to really make progress.
"Our priorities include...Publishing a web-based tool to help states and tribes identify federal funding sources to protect drinking water sources and encourage cross-program coordination for shared water quality benefits."
Many municipalities don’t have the money to come into compliance with their Clean Water Act requirements. A guiding philosophy of our water quality partnerships work is that upstream reductions can be cheaper in absolute terms than upgrades to gray infrastructure, saving money for taxpayers. But in addition to the real cost savings, investing in upstream practices can also make a municipality eligible for grants and low-interest loans, further driving down the price. However, these funding sources are spread across a patchwork of departments and agencies, making them difficult to access. City managers and wastewater operators have relied on us to identify funding options. A web-based tool linking funding sources across programs could make all the difference in convincing one of these professionals to invest in nature-based solutions.
"Helping states, territories, and authorized tribes use the CWA Section 319 grant program for projects that help to protect and restore drinking water sources. Currently there are more than 300 active projects across the country that address source water concerns. We will also promote innovative approaches including new outreach strategies to reach non-operator landowners and new funding mechanisms to address barriers to conservation practices such as procurement of shared agricultural equipment."
While the language sounds similar to many of the other quotes here, this is actually focused on a different but related issue. Our water quality partnerships allow wastewater plants to meet their permit obligations. This is talking about the other end: drinking water. The Clean Water Act Section 319 grant program is the part of the law that focuses on nonpoint source pollution, which is overwhelmingly from nutrients. This is saying that a goal of EPA is to use 319 grants to address pollution that is impairing drinking water sources, such as in Des Moines, Iowa, where one of the city’s key sources of drinking water has been rendered “essentially unusable” due to toxic algae fed by manure and fertilizer runoff. The Section 319 grant program has lots of potential, and we look forward to seeing the kind of “new funding mechanisms EPA” will be promoting.
"Our activities will include: Promoting state use of the Clean Water State Revolving Loan Fund for nonpoint sources, including expanded use of innovative approaches like pay-for-success models."
EPIC strongly believes in using the Clean Water State Revolving Loan Fund to finance nonpoint source pollution reductions. We recently produced a report looking at the current allocation of CWSRF dollars across the Great Lakes states and proposing greener priorities. In Maryland, the Conservation Finance Act that EPIC helped to develop gives statutory authority for the state revolving fund to finance green infrastructure projects, make loans in Pennsylvania when more cost-effective for Chesapeake Bay cleanup, and use revolving funds for land acquisition and conservation easements. The more we can encourage–through funding mechanisms and regulatory support–a comprehensive approach to water quality protection and improvement, the faster we can move towards clean water and a healthy environment for all.
"Our activities will include...Finalizing a policy statement on flexibilities for implementing market-based approaches within the National Pollutant Discharge Elimination System (NPDES) permit program."
This is in some ways encouraging, but as outlined in our Watershed Approaches report, we hope that EPA will use the more inclusive language of “watershed approaches” rather than “market-based” in order to clarify that partnerships, like we’ve facilitated in Iowa, are also included. Watershed based solutions are one of the few areas of agreement about the role of the EPA and the Clean Water Act across the last four administrations. We encourage additional clarifications about this general policy to provide guidance to the Regions and State regulators.
"Our activities will include...Initiating a rulemaking to explicitly state that NPDES permits may include conditions allowing market-based approaches, including trading, to meet applicable effluent limits."
The single biggest concern we run into from municipalities interested in water quality partnerships is that they feel unsure the federal government allows this approach. While water quality partnerships can be allowed to meet NPDES obligations, it’s only been through a roundabout process, requiring additional steps that unnecessarily increase the cost of these more efficient, distributed approaches. EPA explicitly stating in a formal rule that market-based and partnership-based approaches can be a part of meeting NPDES obligation would reduce paperwork and increase confidence, allowing for more upstream water quality improvements. We must be sure that any new rulemaking is broad enough to allow ongoing innovation in this space. Allowing cities and water districts to experiment with new approaches without fear of regulatory jeopardy should be encouraged.
"Office of Water expects that states will either adopt numeric nutrient criteria into their water quality standards or commit to use numeric targets to implement applicable narrative criteria statements."
This can be read multiple ways. Some see it as a retreat from EPA’s previous push outlined in the 2011 “Stoner Memo” to put timelines on states implementing numeric nutrient standards, but my initial reading was that “expect” is a pretty strong statement. Numeric nutrient standards are a crucial tool that allow for easier private investment in nutrient reductions. However, states that lack numeric nutrient standards can still engage in watershed partnerships, as we see in Iowa. It is important to remember that the goal is cleaner water. How we achieve that is less important than that we all focus on that effort. Whether through Adaptive Management programs (in Wisconsin) or voluntary watershed partnerships (in Iowa), we see progress in communities focused on goals that they buy into rather than just being forced to meet a minimum, target number. Like so much else in the memo, how this section is implemented will make all the difference.