Nancy Stoner clearly brings enthusiasm and energy to her new position as Deputy Assistant Administrator, U.S. EPA Office of Water. Her excitement is palpable as she describes her commitment to clean water and a healthy environment and the great things that she hopes to accomplish during her tenure with the EPA. The occasional siren in the background could heard during a recent ABA sponsored webinar interview with John C. Cruden, (Chair, ABA Section of Environment, Energy, and Resources and Deputy Assistant Attorney General, Environment and Natural Resources Division), but it didn’t drown out the giggles and evident glee Ms. Stoner showed when describing her role at the EPA and what she hopes to achieve.
Ms. Stoner and Mr. Cruden set a casual tone and their easy relationship made the most of the format by making the interview relaxed but with ample information. Ms. Stoner established right away that she sees this job as being very policy focused. She discussed how she hopes to shepherd along a number of policy initiatives during her tenure. These include setting priorities for sustainable communities, revitalizing urban water sheds, establishing rules for storm water runoff and determining guidelines that consider the expanding area of green infrastructure development.
She described some of the problems the EPA faces with respect to establishing clean, healthy watersheds. Her discussion began with a background of the history and traditional approaches of the EPA‘s Office of Water but indicated that part one of establishing healthy watersheds is to take a ‘watershed approach’. That is to say that there needs to be both clean up of polluted waterways as well as protecting what are now healthy waterways and not just focus on those waterways that are already contaminated. A second part would be nutrient control. She described one of the biggest problems in cleaning up the Chesapeake Bay, for example, is that nutrients flush into the bay by various sources. This is primarily a state problem so she is working with adjoining states to attack the problem.
Ms Stoner spoke at length about another big task on her agenda: rulemaking. Where she hopes to succeed in this rulemaking endeavor is on the subject of storm water runoff. The problem of storm water runoff is that waters flow directly into a city's storm drains which in turn flow, untreated, directly into our waterways. She provided background and the history of how this came about, but the end result is that runoff goes into storm drains, taking with it anything it comes across on its journey from the streets to the waterways. The rulemaking on this subject will attempt to tackle this problem by addressing both a water quality based approach and a technology based approach and attempt to address the implementation of green technologies to solve this problem.
She next turned to the subject of mountain top mining and how it is another ongoing concern for the EPA that is decades old but nonetheless an urgent priority. According to Ms Stoner, guidance documents on this issue need to be interpreted with current requirements in light of new science that is now available and which shows high conductivity levels correlates with loss of species. One subject stemming from this discussion was the subject of the Clean Water Act's Section 303 (which identifies water that is impaired based on its use) and the interplay of the total maximum duty loads (TMDLs) and surrounding states’ roles which need to be drawn up together since load allocations for a given state alone may not trigger the requirements of Section 303 that might avoid or reduce some of these problems.
The conversation circled back to how storm water is a key problem to the health of the Chesapeake. The EPA is working with the surrounding states to go beyond load allocations as these don’t necessarily trigger the action that is needed to alleviate the problem. The states need to determine their water own quality standards and determine the appropriate use. Up to now it has been driven by point source issues and non point source issues and so there is possibly available a hybrid where some states have authority for non point source such as feedlots. (Interestingly, Ms. Stoner indicated that half of all the pollution is sourced from agricultural uses and half is attributable to feedlots or CAFOs (Concentrated Animal Feeding Operations)).
Another priority of the EPA is working to establish efficiencies between the Clean Water Act and green infrastructure initiatives. Ms. Stoner suggested that water efficiency, water quality, rain water harvesting, potable water use reduction (so as not to use potable water where avoidable) will all be of greater concern to the EPA and as will how to issue guidelines and provide harmonization of the various sections of the Clean Water Act (such as Sections 402 and 404 of Act).
There is a new set of considerations arising from the effects of climate change. She cited an adage that traditionally a waters law attorney needed to be able to navigate water quality issues if dealing with water issues in the eastern United States and water quantity issues if dealing with water issues in the western United States. She pointed out that these two distinctions are now merging as the issue of climate change continues to affect water issues generally. We have more floods in some regions and more water shortages in others as a result of climate change and the smart attorney will be versed in knowledge regarding both these issues.
Ms Stoner ended the interview by passing along some good advice to the law students in attendance: she recommended doing what they love and to follow their hearts in choosing a path in law. She noted that many folks would find what she does to be deadly dull but that she considers herself extremely fortunate that she gets to work with wonderful colleagues and to work to protect our waters and our environment. It was edifying to hear someone speak so passionately and knowledgably on a subject that could indeed be seen as very tedious in detail, but which is so vitally important to the health and quality of our vital resources.
For additional information or background on water rights, climate change or environmental regulation, see Waters and Water Rights,Third Edition, Treatise on Environmental Law or Environmental Law Practice Guide, published by LexisNexis Matthew Bender, available in print and on Lexis.com. Or visit LexisNexis’ Bookstore at http://www.lexisnexis.com/store/us to order your own print version.