GAO Report on “Toothless” Clean Water Act Highlights Failed Christie Barnegat Bay Plan

Barnegat Bay Suffering “Insidious Ecological Decline”

DEP Fails to Enforce Needed Pollutant Reductions

The US General Accounting Office (GAO) just issued a major critical Report to Congress on the performance of a key Clean Water Act program. GAO found that new and stricter federal regulations, increased funding, and aggressive state oversight and enforcement are required if the Act’s  goals are to be met.

These findings are of direct relevance to NJ, particularly lack of EPA Region II oversight of the Christie Administration’s demonstrably failed voluntary approach, especially the Christie “Action Plan” for restoring Barnegat Bay.

Rutgers professor and national expert on Bay ecology Mike Kennish testified that Barnegat Bay was suffering an “insidious ecological decline”. He said that the Gov.’s plan was “clearly not working”, that DEP’s water quality standards have “no scientific validity”, and that DEP must “seriously ramp things up” (see: Barnegat Bay Suffering “Insidious Ecological Decline”)

The US GAO Report emphasized the need for new regulations and stronger EPA oversight of states:

• Unless key features are incorporated into the agency’s regulations—upon which future guidance can be based—states may include them in TMDLs only sporadically, if at all. Furthermore, without the force of regulations to direct states to develop TMDLs containing key features, TMDLs are likely to do little to attain water quality standards, particularly the designated uses of fishing, swimming, and drinking. EPA withdrew the 2000 rule before its effective date, and EPA officials have not taken action to reinitiate it, they said, both because the agency had wanted more time to assess the effectiveness of existing regulations and because rulemaking is costly and time-consuming.

• EPA has studied TMDL implementation and identified specific factors facilitating such implementation, but it has generally not placed on state grants conditions reflecting these factors for TMDL implementation plans and projects. In 2013, the agency issued guidance targeting nonpoint source management grant funds to states and projects that demonstrate some of these factors for effective TMDL implementation (e.g., targeting grant funds to projects where implementation plans have been developed and where external agency assistance is available). The guidance, however, neither requires states to follow these recommendations for selecting projects to fund, nor requires EPA regions to include these factors among programmatic conditions on annual nonpoint source grants.

For anyone interested in clean water, please read the whole Report, it provides an excellent overview of how the Clean Water Act works, see: Clean Water Act – Changes Needed If Key Program is to Help Fulfill the Nation’s Water Quality Goals

GAO examined:

(1) EPA’s and states’ responsibilities in the TMDL program, (2) what is known about the status of long-established TMDLs, (3) the extent to which long-established TMDLs contain key features that enable attainment of water quality standards, and (4) the extent to which such TMDLs exhibit factors that facilitate effective implementation.

In a nutshell, GAO findings repeat long known flaws in the TMDL program. GAO found that the TMDL program is not performing very well, states are not aggressively enforcing existing requirements, that federal funding and the EPA oversight role must be strengthened, and that new and strict regulations are required to control “non-point source pollution”.

Under the federal CWA, NPS pollution is subject to voluntary and ineffective controls:

Certain other factors, however, including those state TMDL coordinators considered most helpful, are beyond EPA’s and states’ existing authorities to put in place, particularly for nonpoint source pollution. Specifically, the Clean Water Act addresses nonpoint pollution through largely voluntary means and EPA does not have direct authority to require landowners to implement activities to reduce nonpoint source pollution. As such authority is absent and where additional effective state authority is also limited, the inability to find enough landowners willing to implement projects to reduce nonpoint source pollution has resulted in limited improvements in water quality for waters impaired by such pollution, according to our survey results.  The act does not provide states with the authority to require landowner implementation of projects to control nonpoint source pollution, and state TMDL coordinators cited a lack of authority as the main reason why nonpoint source TMDLs had not been implemented.

Thankfully, unlike the federal CWA, NJ has a suite of enforceable State laws, regulations, water quality standards, policies, and programs that can enforce NPS pollution controls.

DEP’s tools range from sewer service area planning, C1 300 foot wide stream buffers, storm water controls, and enforceable BMP, including site specific enforcement authority to reduce industrial and agricultural NPS pollution. But, these requirements go unenforced and are not implemented aggressively – as GAO noted in Pennsylvania:

For those states with some specific authority over nonpoint source pollution, according to state coordinators, the authority may be limited in scope or not routinely used. For example, nearly 1,000 Pennsylvania TMDLs identify sediment as impairing water quality, and runoff from farms is the source of sediment pollution for many of these TMDLs. Pennsylvania law requires that all farms have a plan to control or reduce sediment entering waterways from fields and animal use areas over a certain threshold. Nevertheless, officials said, the state’s Department of Environmental Protection has never enforced this law and required farms to have, and implement, these plans, even though the law has been in effect for more than 40 years. The department’s manager of conservation programs told us that the department has not been strict with the agricultural community over the years. Of the nearly 1,000 portions of water bodies identified as impaired by sediment, 2 have been restored, according to data from EPA’s Assessment, TMDL Tracking and Implementation System.

The GAO Report’ findings are of relevance to the stalled effort to restore water quality across NJ, most particularly with respect to the Christie Administration’s highly touted (prior to Sandy) and failed Barnegat Bay 10 Point Management Plan.

The GAO Report focused on the Act’s “Total Maximum Daily Load” (TMDL) program, which is designed to clean up polluted waterbodies that don’t meet water quality standards. These polluted streams, rivers and lakes are designated as “impaired”.

To improve the condition of water bodies that states identify as impaired, the Clean Water Act requires states to develop pollutant budgets, known as “total maximum daily loads” (TMDL), generally for each pollutant impairing a water body. A TMDL is essentially the numeric target for a specific pollutant, reflecting the maximum amount of the pollutant that a water body can contain and still be considered in compliance with water quality standards, and is described in a report that may also provide a general plan for how this target is to be achieved in the water body. According to EPA documents and officials, the agency’s regulations refer to a TMDL generally as a calculation or formula used to address one pollutant in one particular part of a water body, but as the program has evolved, the concept of a TMDL has become more expansive. Overall, the goal of developing a TMDL is to end up with a plan, including the actions needed, to meet water quality standards and restore impaired water bodies. After states develop TMDLs, they take the lead in implementing these plans, and it may take many years to see actual improvements in water quality.4

But States failed to enforce the TMDL requirements of the Act, which led to a series of lawsuits by environmental groups seeking for force states to comply with the Act and cleanup polluted waters:

According to EPA officials, states took little action under the Clean Water Act’s requirement to develop TMDLs until the mid-1990s, when citizen groups sued EPA in several states for not doing so in the absence of state action. Since that time, states developed nearly 50,000 TMDLs, in part as a result of EPA efforts to meet the schedules in consent decrees stemming from the lawsuits, according to EPA officials.6 EPA approved about 35,000 of these TMDLs more than 5 years ago, and, according to EPA officials, states should have implemented these TMDLs to some extent by the time of our review. For purposes of this report, we define TMDLs approved by EPA through December 31, 2007—that is, TMDLs developed more than 5 years ago—as long-established TMDLs.

NJ has been a laggard in enforcing the Act’s TMDL requirements. Still, NJ has hundreds of “impaired” waterbodies (see if you can find the needle in the haystack on DEP’s TMDL website).