Square Pegs in Round Holes

Posted on February 7, 2014 by Richard Glick

The Western states face two reciprocating and overarching problems in water resources policy.  First, water is an increasingly scarce resource facing sharply competitive needs. Climate change is projected to put even more strain on water supplies. Second, most streams listed as water-quality impaired in the West are designated as such for issues related to the biological integrity of the waterway. The combination of aggressive human use of waters, manipulation of stream channels, and failure to control agricultural runoff has resulted in widespread degradation of aquatic habitat.

The primary impediment to addressing these related issues arises from dated legal constructs designed to achieve different objectives in eras with markedly different economies. In other words, trying to apply these constructs to today’s problems is like attempting to fit square pegs into round holes.

The doctrine of prior appropriation governs water rights everywhere in the West.  It was developed in the 19th century to promote mining and agriculture—both water intensive enterprises—in arid climates. The doctrine provides that the first to physically take control of the water and put it to beneficial use has priority over later comers. Thus, the oldest water rights with the highest priorities are mostly agricultural, and many streams have become over-appropriated during the past century. So where does a growing community go for new water supplies? And what about maintaining sufficient high-quality flows instream for healthy fisheries?

The problem is made more acute by the formidable costs and regulatory uncertainty of developing major water storage projects. Many cities seek to acquire or share in old agricultural water rights through direct payments to water right holders or they finance irrigation system improvements for more efficient use of water. Such water marketing approaches free up water for municipal use, while reducing pressure to remove still more water from oversubscribed streams. But if a legislature could have anticipated then what we know now, might it a century ago have considered systems that allocate water based more on maximum public value and efficient use, rather than simply priority in time?

The Clean Water Act was enacted over 40 years ago to address toxic discharges of industrial and sewage wastewater to rivers and lakes.  Dramatic events like the spontaneous ignition of the Cuyahoga River drove public demand for government intervention, leading to the new law. The Act has done a remarkable job of cleaning up end-of-pipe discharges (point sources), but has largely failed at controlling more diffuse sources of pollution (nonpoint sources) from stream channelization, devegetation of riparian habitat and agricultural runoff. Thus, many streams today are impaired by turbidity, nutrient loading, and higher temperatures.

Since the Act does not provide enforcement tools for nonpoint sources, regulatory agencies use the authority available to them to ratchet up controls on point sources. One solution to this problem is water-quality trading, in which a point source permittee can take watershed-restorative action upstream to correct a nonpoint pollution problem in order to meet escalating permit requirements. This approach can yield better ecological outcomes at lower cost. But if Congress were drafting the Clean Water Act today, any rational approach would address the problem of diffuse sources of pollution.

It seems unrealistic to expect substantive changes to either the law of prior appropriation or the Clean Water Act any time soon. Aside from the politics, changes to prior appropriation raise significant constitutional questions to the extent property rights are affected. In the meantime, we’ll have to continue looking for creative workarounds. This circumstance makes interesting work for lawyers, but is hardly the optimal approach to effective water resource use and protection.

A SWING AND A MISS -- The First Reported Challenge to Water Quality Trading is Dismissed for Lack of Standing

Posted on January 24, 2014 by Allan Gates

EPA has touted water quality trading for more than a decade as a viable tool for combating water pollution, particularly pollution due to excess nutrients and sediment.  But the Clean Water Act contains no express authority for water quality trading or offsets, and some environmental groups view trading as a “license to pollute” that violates the Clean Water Act’s promise to eliminate the discharge of pollutants into waters of the United States.

Last month a federal district court issued a final ruling in the first reported challenge to the legality of water quality trading.  The court dismissed the action without reaching the legality of water quality trading.   Instead, the court held that the plaintiff environmental groups (Food and Water Watch and Friends of the Earth) lacked standing and that EPA’s  “authorization” of trading in the Chesapeake Bay TMDL was not a final agency action.  Food and Water Watch v. EPA, No. 1:12-cv-01639 (D.D.C. decided December 13, 2013).

Although the court’s decision did not address the substantive legality of water quality trading, the case still presents four interesting aspects that may prove instructive on what to expect in future challenges.

First, environmental groups split over the question of joining the challenge to water quality trading.  It is widely rumored that Food and Water Watch actively solicited support from environmental groups involved in Chesapeake Bay issue but met with stiff resistance. It appears that the other environmental groups’ support for the Chesapeake Bay TMDL overrode any interest they might otherwise have had in supporting a challenge to the legality of water quality trading.

Second, the defense of water quality trading made for strange bedfellows.  Three parties intervened as defendants.  One was a group representing municipal point source dischargers who support the Chesapeake Bay TMDL (National Association of Clean Water Agencies).  Two were non point source groups who are actively challenging the legality of the Chesapeake Bay TMDL in another case (American Farm Bureau and National Association of Home Builders).  The non-point source representatives argued that the trading component of the Bay TMDL would be important and valuable to their members if their challenge to the validity of the Bay TMDL in the other case was unsuccessful.

Third, the court’s decision on standing, ripeness, and the question of final agency action suggests it may be difficult to litigate the basic legality of water quality trading until a program is fully established and permits allowing credit for trades are issued.  EPA argued successfully that no actual or imminent injury to the plaintiffs was caused by the Chesapeake Bay TMDL’s express reference to trading as a means for meeting the waste load allocations.  According to this argument, the TMDL did not compel any trades; it simply acknowledged that states in the Chesapeake Bay watershed might use trading as a tool in developing permits that implement the TMDL.  Carrying this argument to its logical conclusion, one could envision the possibility that there would be no basis for private party standing to challenge the legality of a trading program until after a stream has been listed as impaired, a TMDL has been performed, a trading program has been established, and permits have been issued allowing credits for trades within the program.  Litigating the legality of water quality trading at such a late stage would presumably face a significant task in unwinding the momentum of such a fully developed administrative structure.

Fourth, given the success of EPA’s standing and ripeness arguments, it seems unlikely that there will be any definitive judicial ruling on the legality of water quality trading any time soon.  The partisan division in Congress makes clarifying legislative action even less likely.  As a consequence, EPA’s success in defending against the Food and Water Watch lawsuit may have the ironic result of postponing the day when states and permit holders will have a clear and definitive answer regarding the basic legality of water quality trading.

Can We Please Talk About Outcomes For A Change???

Posted on April 22, 2013 by Rick Glick

I get it that environmental groups place strict compliance with regulatory controls at a premium.  After all, the standards are designed to be protective of the resource, and they are The Law, which must be obeyed. 

But I sometimes find it dismaying when people conflate immediate, measured, and guaranteed compliance with ecological outcomes.  They are not the same.  I have been in settlement discussions in which I propose that we first come to agreement on what’s best for the resource, and then figure out how to make that fit into the regulatory framework, but have had few takers.  The number is the number is the number.

A recent example arises in the context of water quality trading.  EPA policy promotes alternative means of achieving regulatory compliance that promise environmental results at least as good as conventional, engineered approaches, and at lower cost.  For example, if discharge water temperatures are the problem, riparian shade tree planting could substitute for mechanical chillers.  Of course, measureable cooling would be deferred by many years while the trees grow, but the ancillary benefits of watershed restoration to habitat and ecosystem function are intuitive and compelling.  This approach is supported by academia, government, and many in the NGO community.  Some though are skeptical.

The City of Medford, Oregon, is embarking on a riparian vegetation approach to reduce temperatures at its wastewater treatment outfall, in full cooperation with Oregon DEQ.  A regional NGO, Northwest Environmental Advocates, however, has raised objections.  In a letter dated March 15, 2013, NEA asks EPA to examine DEQ’s implementation of the water quality trading policy with reference to Medford.  NEA questions allowance of “credits” for watershed restoration work that upstream nonpoint sources would have to do anyway, and asserts that no credits should be allowed until the new trees actually yield shade.

The problem is that the upstream nonpoint sources are not obligated by law to restore riparian vegetation; they just need to adopt best management practices to avoid further degradation.  More to the point, restoration of the watershed will simply not occur without the funding provided by a point source with a regulatory problem to solve, such as Medford.  By denying the City credits, the incentive to use a watershed approach disappears.  Similarly, if no credits are awarded until the trees are grown, funds that could go toward watershed restoration will be diverted to engineered controls on temperature.  As DEQ Director Dick Pedersen so aptly puts it, “[i]f we ever build a chiller at the expense of ecosystems, we’ve failed.”

Adaptive Management -- Wisconsin’s Innovative Approach to Phosphorus Discharges

Posted on February 12, 2013 by Linda Bochert

In December 2010, the Wisconsin Department of Natural Resources (WDNR) put into place new rules to control phosphorus discharges.  Adaptive management is one of  four compliance options allowed under these new rules.  But what is “adaptive management”?

WDNR developed adaptive management to provide permittees with a less expensive, more flexible compliance option, and describes adaptive management this way:

 “a phosphorus compliance option that allows point and nonpoint sources (e.g., agricultural producers, storm water utilities, developers) to work together to improve water quality in those waters not meeting phosphorus water quality standards.  This option recognizes that the excess phosphorus accumulating in our lakes and rivers comes from a variety of sources, and that reductions in both point and nonpoint sources are frequently needed to achieve water quality goals.  By working in their watershed with landowners, municipalities, and counties to target sources of phosphorus runoff, point sources can minimize their overall investment while helping achieve compliance with water quality-based criteria and improve water quality.”

To be “eligible” to use adaptive management, a permittee must discharge to a water body that is exceeding its in-stream phosphorus criteria on which at least 50% of the total phosphorus loading comes from nonpoint sources, and would have to implement filtration or an equivalent technology to meet the new phosphorus limit.  Unlike water quality trading, which measures compliance with an end-of-pipe effluent limitation, the adaptive management permittee must meet an in-stream concentration of acceptable phosphorus.  Under adaptive management, the phosphorus in the effluent may be reduced over a longer period of time – in some instances, up to several WPDES Permit cycles – as compared to water quality trading which requires the credits to be generated before the permit is issued.  The job of identifying and finding partners falls to the permittee; WDNR does not intend to act as a broker to identify and bring prospective partners together.

An innovative alternative that seeks a watershed approach to control phosphorus, encourages nontraditional partnerships and cooperation between point and nonpoint sources, tries to provide flexibility in timing and doesn’t rely on the traditional and expensive construction of new treatment facilities – how’s it going so far?

For much of industry, forging such partnerships with other regulated and unregulated sources is unfamiliar territory and relying on those other entities to fulfill their commitments when the industrial permittee is the one that must demonstrate compliance is too uncertain to be acceptable.  Many municipalities are more comfortable with partnerships of this sort, but the early experience of one environmentally proactive municipality has demonstrated the enormous amount of time and effort required to take on the role of “champion”, educate and engage other partners in the watershed.  Agricultural interests are initially skeptical – concerned with the potential of taking land out of production.  The environmental advocacy community reaction is mixed.  One ENGO is actively working with the municipality to educate and engage partners and has written a guidance document on how to do adaptive management.  Another ENGO has filed suit against WDNR over WPDES Permits issued with adaptive management compliance schedules in them, reinforcing the reluctance of industrial and municipal permittees to commit to this approach.  And after approving WDNR’s rules in the first instance, EPA now takes such a strict reading of the rules that the intended flexibility may become illusory.

WDNR management is listening to all of this and seeking ways to adjust the implementation of “adaptive management” to respond to these very practical concerns.  No good deed goes unpunished. 


Posted on January 13, 2010 by Rick Glick

The regulated community is experimenting with solutions to water quality regulatory problems that are market based and implemented on a watershed scale. Such efforts are being met with guarded interest by agencies, environmental organizations and the public, but offer the best hope for true ecological restoration. Oregon has recently passed legislation to foster ecosystem services markets to facilitate this approach. 


The Clean Water Act addresses water quality degradation through establishment of water quality standards and imposition of technology based effluent limitations in point source discharge permits. The receiving waters are tested periodically to see if standards are being attained, and if not, then Total Maximum Daily Loads are set and waste load allocations given to point sources so that permits can be adjusted. Non-point sources are given load allocations in the TMDL, but since there is no direct regulatory enforcement mechanism, and since funding sources are limited, compliance is not assured. 


This model has worked out pretty well for dealing with municipal and industrial waste water discharges, and toxics in receiving waters have been  much reduced. However, there has been little effect on water quality degradation related to non-point sources. In Oregon, over 1,200 streams are listed as water quality limited, and the vast majority are on the list for non-point source related problems, such as warmer ambient water temperatures and nutrient loading. What to do?



The conventional response is to ratchet up permit requirements for point sources, or impose local mitigation requirements on those caught in the Clean Water Act § 401 water certification web.  As it is said, if all you have is a hammer, all your problems are nails. There are, however, other tools in the box. Here are a couple of examples of ecomarket approaches.


Clean Water Services is the second largest sewerage agency in Oregon. It has four treatment outfalls discharging to the flat, slow moving Tualatin River. The discharge raises  receiving water temperatures, and when it came time to renew its four permits, the agency was facing stricter requirements to control thermal loading. Rather than installing mechanical chillers at the outfalls, the CWS proposed a large-scale riparian revegetation program. It was projected that the massive tree planting effort would take about ten years to match the cooling effect of the chillers, but would double the cooling as the trees matured. And with such an effort come ancillary habitat and other ecological benefits throughout the watershed that no chiller could provide. The Oregon Department of Environmental Quality approved the program and it is being implemented.


Idaho Power Company has proposed a similar approach to resolve water temperature problems associated with its Hells Canyon Complex on the Snake River. The HCC is comprised of three dams and reservoirs that together generate over 1,100 MW.  The HCC is undergoing relicensing, which triggers the CWA 401 water quality certification process before both the Oregon and Idaho Departments of Environmental Quality, as the Snake River is a border stream. A temperature control structure installed in the HCC’s largest reservoir would probably solve the regulatory problem, but would offer few ecological benefits. Instead, the company is proposing an ambitious upstream watershed improvement program comprised of riparian planting, fencing, wetlands enhancement, irrigation efficiency upgrades and flow augmentation. The Snake River watershed is vast and complex, with heavy human influence throughout, so a program on this scale will be tough to implement. However, the potential upside piques the imagination. 


Official policy favors such watershed approaches. EPA has adopted a water quality trading policy that encourages transactions between point and non-point sources with a focus on reducing nutrient loads and thus restoring depleted dissolved oxygen. EPA also recognizes the potential for applying the policy to temperature problems. Last year the Oregon legislature enacted Senate Bill 513 , which establishes state policy supporting development of ecosystem services markets to facilitate watershed scale solutions to water quality restoration. 


I have been appointed to the SB 513 working group tasked with developing the policy and making further recommedations to the legislature. One of the greatest challenges is the lack of reliable metrics. Because there are myriad other upstream influences on water temperature, it is exceedingly difficult to measure the effect of an upstream tree planting program on downstream temperatures. Further, the benefits from watershed programs are long term in nature. 


Thus, there is risk both to the permittee and the regulatory agency that someone will sue to require immediate and measureable results. But if the goal of the overall regulatory program is truly ecological protection and restoration, then we must go beyond compliance for the sake of compliance and focus on outcomes. The huge potential for sustainable, widespread benefits resulting from watershed approaches makes this an effort well worth making.