Several themes dominated NACWA’s recently held 2013 National Clean Water Law Seminar: the Clean Water Act (CWA) is showing its age and is set in its ways but is here to stay for the foreseeable future and the forecast is Stormy with 100% Chance of More Regulation as one session was appropriately titled. While the challenges facing clean water agencies are ever growing and expanding, the outlook for progress is far from bleak and rays of optimism pervade the gloomy forecast, which was clearly evident at the Law Seminar. There appears to be a growing recognition from EPA top officials that nationwide water quality improvement since 1973 has been largely due to the efforts of clean water agencies; a recognition that the best recipe for success is the carrot (intergovernmental partnership) not the stick (non-integrated regulation without regard to cost/benefit); and a recognition that if we do not shift the paradigm drastically, water quality improvement will continue to plateau and the cost of compliance will be almost solely on the backs of economically strained local governments and ratepayers.
These epiphanies and common sense realizations are the result of decades of aggressive legal, regulatory and legislative advocacy, which is now yielding more flexibility than has ever been seen since passage of the CWA. But our work is not done – we must translate rhetoric into action. The attitude of partnership and commitment to flexibility expressed in EPA Headquarters’ speeches is often M.I.A. in the trenches.
In addition, EPA must continue to be educated on the impacts of their actions and reminded of the limitations of their authority. EPA’s announcement at the Seminar about the applicability of the Eighth Circuit Iowa League of Cities blending decision is a perfect example of the need for advocacy and was a stark reminder of the pervasive disconnect between EPA’s actions and the effect on the regulated community. During her keynote address, Nancy Stoner, Acting Assistant Administrator, EPA Office of Water, said that EPA will faithfully comply with the ruling in the Eighth Circuit where it is binding but outside the Eighth Circuit the Agency will examine circumstances on a case-by-case basis. There was no acknowledgement of or appreciation for the legal uncertainty that this creates nationwide and in the Eighth Circuit alone. EPA’s stance could lead to years of litigation and regulatory inconsistency. NACWA will work aggressively to advocate for national applicability of the ruling.
With aging infrastructure, drastically changing wet weather patterns due to climate change, diminishing funding sources and options, more costly regulations on the horizon in areas like nutrients and stormwater, a growing population and a rigid and outdated regulatory framework, the challenges are daunting. We are making great strides but we cannot let up. We must have a relentless focus on our future and as Abraham Lincoln said, “The best way to predict the future is to create it.” We are the experts and have the answers and, therefore, we must shape the regulatory landscape aggressively and proactively in line with our vision rather than in reaction to burdensome regulation. We must spur innovation, be risk-conscious but not risk-adverse, rebrand our industry as essential resource managers, facilitate the rapid transition to the Utility of the Future and transcend the four corners of the CWA in order to achieve sustainable and cost-effective environmental and public health improvements. The importance of national coordination, common messaging and the ability to share our common knowledge, successes and failures cannot be overstated. NACWA’s annual Law Seminar always provides that invaluable opportunity. Presentations and handouts from the seminar are available on the NACWA website.