To EPA’s New Administrator – Don’t Forget About the Water

As many of you who read this blog know, I talk a lot about the water problems that still plague our Nation.  The remaining sources of water pollution remain many and diffuse and are particularly local in nature (defined as nonpoint sources under the Clean Water Act), which the Act does not authorize EPA to directly regulate.  Rather, the solutions to reducing and eliminating nonpoint source pollution is the primary responsibility of the States as stated in Section 101

It is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of [the Act] to be met through the control of both point and nonpoint sources of pollution.  Section 101(a)(7)

Further,

Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources.  Section 101(g)

So given that our National Policy is to expeditiously control nonpoint sources, what are we waiting for?  Notwithstanding the Agency’s inability to directly regulate nonpoint sources, EPA has a large bully pulpit and authority to convene and facilitate to explore and establish new approaches to cleaning up our rivers, streams and estuaries, including market-based approaches, as I’ve discussed here and here.

Congress has granted the EPA Administrator discretionary authority to establish advisory committees, commonly referred to as Federal Advisory Committees or FACAs, to provide counsel and input from experts across various disciplines.  Currently, EPA has 22 FACAs covering air, waste, pesticides, drinking water, local government, environmental justice, environmental finances, policy and technology, and environmental education.  Only two of the 22 FACAs have a charter aimed specifically at addressing water pollution, but these are limited to the Gulf of Mexico and the Great Lakes.  Why aren’t there more FACAs focused on water pollution?  In 1972, when the Clean Water Act was adopted, Congress established several advisory committees to help identify the best methods for solving water pollution.  One was the National Study Commission, composed of 15 members of the Senate and House.  Two additional ones, the Water Pollution Control Advisory Board under Section 503, and Water Quality Information Advisory Committee under Section 515, were composed of representatives of academia, industry, environmental, and agriculture.  For various reasons, the authorization of these boards and committees lapsed and, thus, they no longer exist; yet the authority to resurrect them still exists.

Given the significant water pollution challenges that still confront us, I would respectfully call upon the new EPA Administrator, Gina McCarthy, to act “expeditiously” to establish a FACA that would focus on identifying and establishing initiatives for water pollution.  This would present the Agency with a unique opportunity to “co-operate with the States and local agencies” to promote innovative approaches, including the establishment of water quality markets.  Doing so post-haste would send a strong message to the States and the public that the Agency is serious about fixing this problem.  (And to my friend, Ken Kopocis, once you are confirmed – and yes, I’m confident that will happen – maybe you can help make this happen.)

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