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Municipalities, public service districts and other operators of publicly-owned treatment works (“POTWs”) are closely monitoring a controversial and ill conceived provision in U.S. Senate’s Fiscal Year 2016 spending package for the Environmental Protection Agency. Section 428 of the spending package seeks to amend the Clean Water Act (“CWA”) by prohibiting both direct and indirect combined sewer overflow (“CSO”) discharges to the Great Lakes watershed. Section 428, which was inserted at the request of U.S. Senator Mark Kirk (R. Ill.), would require all publicly-owned wastewater treatment agencies that discharge to the Great Lakes to eliminate all CSOs, including those CSOs operating in compliance with a CSO Long Term Control Plan. Agencies that discharge blended effluents under a National Pollutant Discharge Elimination System (“NPDES”) permit would also be prohibited from discharging during peak wet weather conditions.
If approved, Section 428 would place an arguably impossible financial burden on ratepayers throughout the Great Lakes region. It would also mean that many cities that have already spent millions of dollars to control and reduce CSO discharges would be in immediate non-compliance. In a survey of 180 utilities that hold CSO permits within the Great Lakes Basin, the National Association of Clean Water Agencies (“NACWA”) found that estimated compliance costs would exceed $72 billion. The survey found that if Section 428 were approved, 17.9 million individuals across 182 communities within New York, Wisconsin, Indiana, Pennsylvania, Ohio, Michigan, and Illinois would be affected.
Currently, the national goals and standards for the reduction of CSOs are regulated under the 1994 Combined Sewer Overflow Control Policy, which was codified by Congress in 2001. Under this policy, POTWs are required to develop Long Term Control Plans (“LTCPs”) that outline the POTW’s plans for reducing the discharge of CSOs. This program allows the regulated community to responsibly allocate limited public funds for projects and set a reasonable timeline for reducing and eliminating CSO discharges. Section 428 looks to supplant this policy by calling for the immediate cessation of CSO discharges in the Great Lakes; an impractical and unreasonable demand that by all accounts is economically infeasible.
POTWs across the Great Lakes region and the country will be watching the progression of this Appropriations Bill.
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I hate to get into the weeds so to speak but... The Waters of the United States rule does not provide "broad authority over regulating the pollution of wetlands and tributaries that run into the nation’s largest rivers" by itself. That authority has existed since the Clean Water Act (CWA) was passed during the Nixon, remember him Republican president, administration, remember river's catching fire. The rule simple defines the "waters" to which certain portions of the CWA apply. Not withstanding rather myopic Supreme Court decisions the CWA clearly applies to waters that are not navigable - see for example section 419 addressing waters adjacent to navigable waters. Further the Federal Water Pollution Control Act section 404 makes in clear that WPCA implementation may be delegated to states for all "navigable water" EXCEPT ones that actually or could be used for navigation and "wetlands adjacent thereto". Clearly Congress intended regulation to apply to at least navigable waters and other water bodies that flow into navigable waters. After all water and pollution contained in water does run downhill, a fact that some choose to overlook. Parties that claim the act applies to puddles and agricultural activities are willfully ignorant of the actual statutory and rule language. Environmental studies expert at https://dissertationwriter.org .