Plan of Action

Summer 2014 is filled with opportunities to improve water quality throughout the United States and to better protect people's health in the process. Everyone can now support a long-awaited rule to enhance protections for small streams and wetlands, which benefit beach water quality in two important ways, filtering out harmful contaminants and minimizing polluted runoff. State and federal officials can start using the ample legal tools they have today to rein in stormwater pollution at the city and regional scale. And beach managers can use a new and important tool—the health-protective Beach Action Value—to make swimming advisory decisions that more fully safeguard public health.

Require Pollution Controls for Discharges into All Tributary Streams, and Protect Pollution-Filtering Wetlands

The most immediate and high-priority action that must be taken to address water pollution concerns at the nation's beaches and in water bodies throughout the country is to adopt updated national rules that ensure important surface waters are protected from pollution by the Clean Water Act. Specifically, the Obama administration should complete its proposed rulemaking to restore pollution control safeguards for small, seasonal, and rain-dependent streams, as well as a variety of wetlands. All beachgoers should weigh in on this rule.

Small and Seasonal Streams and Wetlands Perform Critical Pollution-Reducing Functions

By removing different pollutants from water that passes through them and by retaining stormwater that often causes pollution problems, wetlands and small streams help ensure that larger water bodies within the watershed are safe for various uses. EPA scientists documented these and other important functions in enormous detail, in a September 2013 draft scientific assessment that examined more than 1,000 pieces of peer-reviewed literature regarding the connectivity of small or non-perennial streams and wetlands to downstream waters. According to this assessment, tributary streams, regardless of their size or how frequently they flow, and wetlands that are near rivers, lakes, and other waters are "physically, chemically, and biologically connected to downstream rivers."1 Further, even wetlands outside of riparian areas "provide numerous functions that can benefit downstream water quality and integrity."2 According to the EPA's scientific assessment, wetlands and streams "affect the amounts and types of materials that are or are not delivered to downstream waters, ultimately contributing to the structure and function of those waters."3

Headwater, seasonal, and rain-dependent tributaries can affect beach water quality. As the scientific assessment explains, "the fundamental way in which streams and wetlands affect river structure and function is by altering fluxes of materials to the river."4 All streams are inherently connected to their downstream waters.5 There is substantial evidence of specific physical, chemical, and biological connections between headwater streams—including even those with ephemeral or intermittent flows—and downstream bodies of water, in part through the movement of organisms and the transport of water and associated materials.6 Most terrestrial organic matter entering these small headwater tributaries is transported downstream, often as dissolved organic matter or as fine particulate matter.7, 8 And small streams are so numerous that they can make up the majority of a river network (when drainage areas and stream lengths of headwater streams are combined), which allows them to have a significant impact on downstream waters.9

Wetlands may play an important role in beach water quality, whether they are natural or created specifically to absorb and treat stormwater runoff. Stormwater is one of the most significant sources of beach water pollution, and natural and stormwater wetlands are among the most effective management tools for pollutant removal and stormwater absorption.10 A single acre of wetland can store 1 million to 1.5 million gallons of water.11 And since stormwater is frequently highly polluted, upstream absorption that prevents it from running to coastal and Great Lakes beaches is helpful to beach water quality.

Wetlands remove and transform pollutants such as nitrogen and phosphates, which fuel harmful algal blooms.12 In one study, water containing various contaminants was applied to forested wetlands, which removed more than 95 percent of all phosphorus, nitrate, ammonium, and total nitrogen during the study period of several years.13 In fact, wetlands can be so effective at pollutant control that numerous artificial wetlands have been constructed as an alternative to traditional mechanical secondary treatment processes for municipal wastewater.14

Just as wetlands connected to larger water bodies can benefit downstream water quality, "isolated" wetlands can perform similar functions. Specifically, these waters can help reduce contamination by disease-causing organisms, which often live in human and animal waste. Geographically isolated wetlands (those lacking a surface connection to downstream waters), with their water-absorbing and flood-averting properties, can decrease the spread of dangerous pathogens by separating dangerous organisms from solids, such that many of the remaining pathogens are then rendered nonviable by predators or natural ultraviolet irradiation.15, 16

In addition to removing pathogens, these isolated bodies act to reduce the flow of materials between water system components, and this can have "important positive effects on the condition and function of downstream waters."17 As the EPA assessment notes, "even in cases where…wetlands lack a connection to other water bodies, they can influence downstream water through water storage and mitigation of peak flows (flood reduction/attenuation)."18

Many Small and Seasonal Streams and Wetlands Lack Clear Protection from Pollution Today

Because small streams and wetlands perform critical functions, it is important to prevent them from being polluted to the point of losing their effectiveness or being destroyed altogether. And for decades after Congress passed the Clean Water Act in 1972, that federal law worked to prevent unregulated pollution of all kinds of surface waters. However, Supreme Court decisions in 2001 and 2006 undermined this bedrock environmental legislation by creating uncertainty about what types of waters were protected by the law. Agency policies issued under former president George W. Bush further limited the ability of pollution control officials to protect our waters, making implementation of the law difficult, time-consuming, and expensive. As a result, it became unclear whether the law protected a variety of waters, especially those that are geographically isolated from others or that lack permanent flow. Over the past decade, tens of millions of wetland acres, which provide crucial flood protection as well as wildlife habitat, and about 2 million miles of streams, which provide drinking water for 117 million people, have been in legal limbo.

According to The New York Times, EPA regulators reported that in a four-year period, more than 1,500 major pollution investigations involving oil spills, carcinogenic chemicals, and dangerous bacteria in lakes, rivers, and other water bodies had been suspended or dropped.19 As a consequence of the legal morass, the EPA acknowledged that law enforcement has been hamstrung: "EPA enforcement managers have indicated that enforcement efforts are shifting from protecting small streams high in the watershed where jurisdiction is a potential issue. In short, EPA is focusing efforts on larger streams and rivers, where there is more certainty of establishing jurisdiction."20

To address this problem, the EPA and the U.S. Army Corps of Engineers recently proposed a new rule—the Clean Water Protection Rule—to better safeguard critical waters in a manner that is consistent with the Clean Water Act's history and purpose. Although the Obama administration's Clean Water Protection Rule is based on reams of scientific evidence, legal analysis, and additional technical support, it is very simple. The initiative has four components:

  • It slightly increases the amount of waters nationwide protected by the Clean Water Act (by about 3 percent). That is less inclusive than policies in place under President Reagan.
  • It enormously improves clarity about which waters are covered and which are not, making implementation and enforcement of the law far more efficient and predictable.
  • It maintains existing exemptions for agricultural producers, codifies a number of exemptions that have been followed only as a matter of agency policy, and reduces coverage for ditches.
  • It is paired with a ruling that 56 different agricultural/conservation practices are generally exempt from Corps permitting.

The rule certainly can be—and should be—made stronger. In particular, the rule must provide clearer protections for those waters that are not part of a tributary network because they perform significant functions for downstream waters. As discussed above, the agencies have a wealth of information revealing that at least some categories of these more isolated waters have important impacts on the physical, chemical, and biological condition of other waters. But it is heartening that the EPA and the Corps have taken the initiative to propose the rule and seek public input about which waters warrant protection because of their functions. The agencies are accepting public comment on the rule until October 20, 2014, and Americans should weigh in to stress their support for protecting the critical aquatic resources that help keep beach water and waterways clean.

Enforce Effective Controls on Polluted Runoff Across the United States

Contaminated stormwater is one of the most significant sources of pollution to our nation's beaches, rivers, streams, and lakes and is a primary cause of flooding and sewer overflows that threaten the health and safety of our communities. Nationwide, the EPA estimates that urban stormwater runoff is the primary source of water quality impairment for 13 percent of all rivers and streams, 18 percent of all lakes, and 32 percent of all estuaries. Polluted stormwater runoff has historically been the leading known source of closures and swimming advisory days at coastal and Great Lakes beaches. It is the leading pollution problem affecting Puget Sound and myriad waterways and beaches in California, and it is the only growing major source of nitrogen pollution to the Chesapeake Bay. All of these impairments and closings have direct and significant economic impacts for communities and businesses.

Conservation groups have long called for major improvements to national regulations that pertain to polluted runoff management. Advocates especially support the widespread use of natural green infrastructure solutions—such as green roofs, rain barrels and cisterns, rain gardens, pocket wetlands, and permeable pavements—to prevent stormwater from becoming pollution by retaining it on-site. This approach parallels the findings of a landmark National Research Council report calling for major reforms in national stormwater policy.21 In 2009, the EPA promised to reform the national stormwater regulations and evaluate performance-based retention standards for various kinds of stormwater sources; the agency committed to act "no later than November 19, 2012."22 The agency missed that date, as well as several subsequent targets, but consistently expressed its commitment to developing these needed improvements.

Unfortunately, the EPA recently acknowledged that it has shelved this initiative, even though the agency continues to express concern about polluted runoff. In stopping work on the rule, the EPA stated:

EPA is updating its stormwater strategy to focus now on pursuing a suite of immediate actions to help support communities in addressing their stormwater challenges and deferring action on rulemaking to reduce stormwater discharges from newly developed and redeveloped sites or other regulatory changes to its stormwater program. EPA will provide incentives, technical assistance, and tools to communities to encourage them to implement strong stormwater programs; leverage existing requirements to strengthen municipal stormwater permits; and continue to promote green infrastructure as an integral part of stormwater management. EPA believes this approach will achieve significant, measurable, and timely results in reducing stormwater pollution and provide significant climate resiliency benefits to communities.23

The EPA's failure to lead on this issue does not diminish its importance or the need to develop broad-scale solutions to the nation's polluted runoff problems. The agency should reconsider its retreat on national rules; in the meantime, the EPA and states should fully enforce the existing requirements governing runoff pollution.

Require Pollution Controls on Runoff Pollution Sources on a Regional Scale

The Clean Water Act provides citizens with the opportunity to petition the EPA for "residual designation" of stormwater sources that are causing pollution problems. If granted, a residual designation leads to requirements for problem-causing sites to take steps to reduce their pollution impacts. The EPA can also exercise this authority on its own initiative. Especially given the agency's stalled efforts to improve the national rules, it should fully implement this existing authority.

To date, the EPA has not aggressively used its residual designation authority. The agency refused to act in response to petitions NRDC, American Rivers, the Conservation Law Foundation, and several regional watershed groups filed last summer with EPA Region 1 (New England), Region 3 (Mid-Atlantic), and Region 9 (Southwest and California), even though the agency acknowledged that stormwater runoff from commercial, industrial, and institutional properties contains the same pollutants that are fouling our waters. For example, Region 1 stated, "The Region finds that there is a likelihood of pollutant exposure, and therefore presence in stormwater discharges from CII [commercial, industrial, and institutional] sites generally," even going so far as to discuss specific waterways that are polluted by runoff from these sites. Region 3 said, "EPA accepts that many CII sites have significant amounts of impervious surface, which are exposed to a variety of pollutants that can discharge." And Region 9 affirmed, "EPA agrees that it is reasonable to expect that the pollutants identified in the petition may be exposed to precipitation at CII sites with impervious cover."

Yet the agency decided to avoid taking any action to reduce polluted runoff for various reasons, none of which hold up to scrutiny. For example, the agency claimed that current state and federal regulatory programs are "adequately" addressing stormwater pollution. That simply is not true; the programs EPA cites have proved ineffective at stemming runoff pollution over the past several decades. What's more, existing requirements aren't even being properly implemented or enforced, as the EPA's own documentation of permit violations shows.

By deciding not to grant these petitions, the EPA not only backed away from authority that it could use to solve major pollution problems across broad regions of the country, but also missed an opportunity to more fairly allocate the costs and responsibilities of cleaning up stormwater pollution. In giving a free pass to the developers and strip mall owners whose runoff contributes to making our waters unsafe for swimming and fishing, the EPA is leaving municipalities, which may lack the clear regulatory authority to hold these polluters responsible, in a difficult spot. Indeed, the National Association of Clean Water Agencies, a group representing municipal wastewater utilities, sent a letter to the EPA stating that it supported the concept of residual designation (while offering suggestions for how it should best be implemented) because it would ease the burden on struggling municipalities and place more responsibility for managing runoff on the large property owners who are responsible for creating it.24

Small businesses involved in the design, manufacture, installation, and maintenance of stormwater management practices supported last summer's petitions. Nearly 70 businesses sent a joint letter to the EPA last fall that stated: "We also support the recent initiative insisting that EPA require certain stormwater sources in polluted watersheds to obtain pollution-limiting permits. These petitions present an important opportunity to reduce the currently uncontrolled, permanent discharges from already built areas in our communities, discharges which if left unabated will continue to undermine environmental health and economic prosperity."25

Accordingly, the EPA must more fairly evaluate future residual designation petitions, especially where requiring pollution controls on existing sites will help address identified pollution problems associated with stormwater runoff. In addition, the agency should work to identify watersheds where this tool is particularly needed and should designate sources in such watersheds for pollution controls.

Follow Legal Requirements to Establish Strong Municipal Stormwater Permit Conditions and Slash Sewage Pollution

As noted above, the EPA has failed to update its stormwater pollution control requirements. Consequently, it is critical that pollution control officials take advantage of their authority under existing law to reduce the amount and the impacts of stormwater pollution in our communities. Current Clean Water Act rules require most stormwater discharges to be covered by a pollution-limiting permit. For municipal separate stormwater systems, such permits must reduce pollutants to the "maximum extent practicable" and must require controls sufficient to meet water quality standards in local water bodies. Those cities with combined stormwater and sewage systems must develop long-term combined sewer overflow control plans that similarly contain requirements sufficient to meet water quality standards.

Although the existing requirements have not been vigorously or evenly enforced, they have spurred a number of communities to incorporate the types of controls that ultimately need to be adopted at the national level—including quantitative limits on stormwater retention volume for new development and redevelopment sites, and requirements to improve the existing built environment to reduce runoff volume and pollution levels. State pollution control officials and municipal sewer system operators must enforce these requirements, especially in view of the EPA's failure to develop improved national rules and its reluctant approach to residual designation. NRDC works with states, municipalities, businesses, and citizens in many communities to promote these principles. Here are some examples of cities and states taking steps to meet clean water requirements with green infrastructure:

California—Clean Water Act permits in the San Francisco Bay region, Los Angeles and Orange Counties, the San Diego region, and smaller communities statewide all require new development and redevelopment projects to retain the runoff produced by the 85th percentile storm event. Stormwater permits in California have also begun to promote stormwater capture as a means of increasing local water supplies, something that is critical to the state's well-being, highlighting the ability of local permits to adapt to specific conditions in the region they cover. Although the 85th percentile standard is not as stringent as requirements in some other parts of the country, California's Central Coast region in some cases now requires retention of the 95th percentile storm event based on regional predevelopment hydrology and the feasibility of meeting the standard.

bio-retention swales

©MMSD Graphics DepartmentBio-retention swales for stormwater treatment along grange avenue in the Village of Greendale, Milwaukee.

Cleveland—A federal consent decree with the Northeast Ohio Regional Sewer District (NEORSD) to address the flow of untreated sewage into Cleveland's waterways and Lake Erie requires NEORSD to invest at least $42 million in green infrastructure projects to annually capture 44 million gallons of CSO discharges. The decree also enables NEORSD to look for opportunities to propose additional green infrastructure in exchange for reducing the scope of conventional, or "gray," infrastructure projects.

Metropolitan Water Reclamation District of Greater Chicago—Compared with the green infrastructure investments many other cities and utilities are making to meet clean water requirements, a consent decree settlement between the EPA and the Metropolitan Water Reclamation District of Greater Chicago (MWRD) is a disappointment.26 For example, the consent decree contains a generally stated requirement that MWRD develop 10 million gallons in retention capacity using green infrastructure by 2015. But without robust modeling and targeting of specific green infrastructure measures—neither of which is required in the development of MWRD's green infrastructure plan—there is no basis for assuming that the overall retention capacity requirement will actually be implemented strategically where needed to achieve the district's goal "to reduce CSO discharges, localized flooding and stormwater impacts."27 Nor does the consent decree require—as do other cities' decrees—post-construction monitoring to assess its effectiveness.

Milwaukee—The Milwaukee Metropolitan Sewerage District (MMSD) considers green infrastructure to be a key component of its 2035 Vision for zero basement backups, zero overflows, and improved water quality. In 2013, MMSD released a regional green infrastructure plan with a goal to capture 740 million gallons of rainwater per storm event, the equivalent of capturing the first 0.5 inch of rain. In addition, the MMSD's 2012 clean water permit requires the district to add 1 million gallons of green infrastructure capacity to the region on an annual basis. In 2013, MMSD reported that it worked with partners to install 4.3 million gallons' worth of non-sewer storage capacity, more than four times the mandated capacity.28

poruous contrete sidewalk

©NYC Environment ProtectionPorous concrete sidewalk Paerdegat Basin, CS Detention facility, Brooklyn, New York

New York—In a 2012 state consent order, New York City committed to investing more than $1 billion in green infrastructure–based controls to reduce combined sewer overflows. Importantly, the consent order includes a requirement that the city use green infrastructure retrofits to manage 1 inch of runoff from 10 percent of the impervious acreage in its combined sewer service area by 2030, with interim targets for 2015, 2020, and 2025. Runoff can be managed using either retention, which is a superior means of addressing stormwater issues, or detention, with delayed release to the sewer system. These commitments have been incorporated into Clean Water Act permits, even as the city continues comprehensive planning efforts to reduce its sewer overflows and to establish long-term green infrastructure and water quality goals.

New York State's general statewide stormwater permit refers to a stormwater design manual that calls for development projects to retain on-site the 90th percentile storm. The manual, however, sets a less stringent standard for redevelopment sites, and the permit does not unambiguously require that the manual's standards be met. Also notable is that the statewide permit requires some municipalities discharging runoff to severely polluted waterways to develop "retrofit plans" to reduce pollution from existing developed areas. However, for other municipalities discharging to similarly polluted waters, the permit does not require a decrease in current pollution levels. In sum, the New York State requirements are progressive in many respects but should be strengthened to ensure protection of local waters.

woman with child

Paul RiderAlthough schools represent only 2 percent of impervious cover in the combined sewer area, Philadelphia's Water Department believes the high visibility and educational opportunities associated with schools make them important places to showcase green infrastructure.

Philadelphia—To address chronic pollution problems related to combined sewer overflows, Philadelphia has established the "Green City, Clean Waters" program, an ambitious effort focused on green infrastructure solutions that will require the retrofit of nearly 10,000 acres of impervious surface on public and private property over the next 25 years. Enforceable targets—both for acres of green infrastructure retrofits and for measurable reductions in sewage overflow pollution—are embodied in a state consent order and will be incorporated into the city's Clean Water Act permits. As part of this program, the city has established a requirement that new development and redevelopment projects infiltrate the first 1 inch of runoff on-site. The city has also adopted a stormwater fee structure providing a substantial credit (up to nearly 80 percent) for nonresidential property owners who install retrofits that manage the first inch of rainfall over their entire parcel on-site, with no discharge.

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The City of Portland is taking a holistic approach toward improving the health of the local watershed with the Brooklyn Creek Basin Program. the program introduces the first prototype for "green" main streets in the country, manages more than 1 million gallons of stormwater runoff, and creates 126 jobs during construction.

Portland, Oregon—To comply with its National Pollution Discharge Elimination System (NPDES) permit, Portland established a comprehensive stormwater management program that includes design standards for source control devices as well as best management practices for reducing stormwater pollution. Portland's runoff retention standard prioritizes the use of green infrastructure over all other control measures for new and redevelopment projects involving as little as 500 square feet of impervious area. The city also requires the development of a retrofit plan for existing impervious areas and is implementing programs to replace city-owned impervious areas along streets and on municipal building roofs.

Prince George's County, Maryland—The county's new stormwater permit requires it to retrofit 20 percent of its impervious surfaces, or about 8,000 acres, to control stormwater runoff over the next five years. To meet this requirement, the county is establishing an innovative public-private partnership (P3) program. A private company will fund, implement, and maintain the retrofit projects, with costs to be repaid over time using revenues from the county's stormwater fee. This approach allows implementation to be completed at less cost and on a faster schedule than would be possible if the county were to install the retrofits itself. P3 programs have been used previously for transportation and housing projects, but never before for stormwater retrofits. Provided that the program is structured to ensure that the county remains accountable for meeting its permit requirements, the Prince George's County approach could be used as a model in other jurisdictions subject to retrofit mandates.

Seattle—The City of Seattle Stormwater Management Plan was developed to comply with its NPDES permit; it specifically requires that green stormwater infrastructure be used to the maximum extent feasible for single-family residential and parcel-based projects.29 To help sites meet the requirement, a range of best management practices are identified, including bioretention, use of permeable paving, retention of existing trees, rainwater harvesting, and installation of green roofs. In June 2014, Seattle Public Utilities is expected to release a plan identifying how city departments will work together to achieve Seattle's goal of managing 700 million gallons of stormwater runoff annually using green infrastructure.

green rooftop

©Capitol GreenroofsTo help incentivize privately financed green roofs, Washington, D.C.'s Department of the environment initiated a green roof subsidy program. the Department provides a rebate of $3 per square foot for installed green roofs; as a result, more than 50,000 square feet of green roof projects are under construction. the rebate has since grown to $5 per square foot.

Washington, D.C.—The city operates a separate storm sewer system that conveys stormwater runoff independently from sewage over much of the city. Its stormwater permit requires new development and redevelopment projects to retain 1.2 inches of rainfall from each storm event. Recently adopted regulations to implement the permit's requirements established a first-of-its-kind program that sets retention standards and a volume credit system that allows some of the retention obligation to be met off-site. This program contains some loopholes that may threaten its ability to fully implement the requirements of the Clean Water Act, but it could be used to target critical sources of runoff and pollution entering the region's waters.

These local and state efforts, although surely in need of further improvement, are critical to advancing stormwater pollution control efforts. They help serve as a platform for development of broader policies, and they ensure that important runoff sources are addressed.

Maintain Core Clean Water Act Requirements for Sewage Treatment, and Increase Financial Assistance for Needed Repairs to Aging Sewer Systems

One of the core requirements of the Clean Water Act is that municipal sewage receive, at a minimum, both primary treatment (mainly to remove solids) and secondary treatment (which today typically involves using microbes to break down organic material and kill harmful bacteria, viruses, and protozoa) before the treated wastewater is discharged to waterways. These basic requirements, coupled with substantial federal funding for modern wastewater treatment infrastructure in the 1970s and 1980s, are responsible for huge improvements in water quality nationwide over the past four decades.

Some municipal wastewater utilities, however, have pushed to weaken the law to create routine exemptions from these requirements whenever rainwater enters poorly maintained sewer systems that were designed to handle only sanitary sewage, overwhelming the capacity of collection systems and treatment facilities. The resulting discharges of untreated sewage from sewer pipes are called sanitary sewer overflows; when sewage receives partial treatment and is diluted with other treated sewage before release into waterways, the practice is known as blending. Current law requires that wastewater utilities remedy these deficiencies in their infrastructure to ensure that partially treated or untreated sewage—which commonly contains high levels of harmful bacteria, viruses, and other pathogens—is not released into waterways, except under extraordinary conditions when there is "no feasible alternative."

A decade ago, when the EPA attempted to roll back these requirements and allow the routine discharge of partially treated sewage during rain events, more than 98,000 public comments were submitted in opposition, and the U.S. House of Representatives voted overwhelmingly to reject the proposal. Today, Congress and the EPA should similarly refuse any calls by wastewater utilities to weaken the existing rules. Instead, the EPA should continue to hold municipalities accountable for making the necessary repairs to their aging, failing sewer systems, and Congress should increase federal financial assistance to speed those efforts.

Improve Public Health Protections by Making Precautionary Swimming Advisory Decisions

The EPA is the government agency responsible for ensuring that recreational waters are safe. Unfortunately, in late 2012 the agency adopted allowable bacteria levels—called "criteria" in the Clean Water Act—that miss a critical opportunity to better protect the public from the dangers of swimming in polluted water. Ironically, as the EPA developed this weak approach, the agency also identified a precautionary Beach Action Value (BAV) that would far better protect public health than would the EPA bacteria criteria, if it were used as the basis of swimming advisories. Although the BAV is not required, local beach managers and state officials responsible for beach policies should rely on it to provide important safety information to the public.

The Risks of Swimming in Polluted Waters

Illnesses associated with swimming or otherwise recreating in polluted water include gastrointestinal upset, skin rashes, conjunctivitis, upper respiratory tract infections, meningitis, and hepatitis. Children are especially vulnerable, in part because they tend to submerge their heads more often than adults and are more likely to swallow water in large volumes when swimming. The most common health complaint is gastrointestinal illness, which typically involves symptoms such as vomiting, fever, stomach pain, and diarrhea.

In 2000, Congress enacted the Beaches Environmental Assessment and Coastal Health (BEACH) Act, requiring the EPA to modernize criteria for water quality that would protect beach users from illnesses caused by pathogens such as viruses and bacteria.30 The criteria were to be based on, among other things, the results of public health studies also required by the BEACH Act. The EPA updated these criteria in 2012, but the revisions are inadequate and fail to protect public health in at least three ways.31

First, the EPA's criteria do not protect against single-day exposures to pathogens. The EPA allows water quality averaging over a period of 30 days and permits periodic exceedances of what was once defined as a single-sample maximum for allowable pollution. This approach allows bacterial levels to repeatedly exceed pathogen exposure limits that the EPA has determined are unsafe. Swimmers using beaches vulnerable to dangerous but short-lived fluctuations in water quality—caused, for example, by sewer overflows after rainstorms—are especially at risk. These swimmers do not swim on an "average" day as measured over a 30-day period, nor are they aware that they may be swimming on a day when a periodic exceedance is allowed; they swim on the single day they choose, and on that day they risk greater or lesser degrees of exposure to a variety of illnesses. The EPA's criteria ignore the health risks faced by swimmers from daily exposures to pathogens.

Second, the EPA's allowable risk rate for illness is unacceptably high. The agency's 2012 criteria include a set of values corresponding to a risk rate for gastrointestinal illness of 36 illnesses per 1,000 swimmers in marine and fresh waters. In other words, the EPA has deemed it acceptable for 36 of every 1,000 beachgoers to become ill with gastroenteritis—including vomiting, nausea, or stomachache—from swimming in waters that just meet its criteria values. The EPA's only apparent justification for the 36/1,000 illness rate is that a comparable value was included in its 1986 criteria and therefore had a "history of acceptance by the public."32 But the fact is that most people have no idea what level of risk they are taking when swimming in waters that are supposed to be safe. The EPA's reliance on the public's so-called acceptance of this risk is misguided.

Third, the EPA fails to adequately address the risk of non-gastrointestinal illnesses that result from recreating in contaminated waters.

Non-gastrointestinal effects of pathogen exposure include rashes; upper respiratory illness; and ear, eye, and sinus infections, all of which are commonly contracted by recreational swimmers. The EPA did not properly account for swimmers' risks of contracting non-gastrointestinal illnesses in preparing the 2012 criteria. Instead, it simply assumed that non-gastrointestinal illnesses would occur at a lower rate than gastrointestinal illnesses, and that a measurement of one could therefore be a proxy for the other. Whatever incidental protection the EPA's approach may offer is insufficient to guard against the non-gastrointestinal effects of pathogen exposure.

The EPA must correct the 2012 Recreational Water Quality Criteria so that the above issues are addressed. In the meantime, beach managers and public health officials have an important new tool to better protect public health: the Beach Action Value. The EPA's new Recreational Water Quality Criteria document for beach water quality recognizes the BAV as a "conservative, precautionary tool for making beach notification decisions."33 In addition, the EPA's proposed National Beach Guidance and Required Performance Criteria for Grants would condition states' eligibility for BEACH Act funding on their use of the BAV to trigger beach notifications. NRDC strongly encourages state officials to pursue this approach and to use the more protective BAV.

Ensure Adequate Funding for State Monitoring and Notification Programs

The Obama administration should maintain funding for coastal and Great Lakes states to monitor beach water quality and inform the public about health risks. States' monitoring and notification efforts are critical safeguards that protect more than 100 million beachgoers and swimmers across the nation from waterborne diseases. Monitoring programs help states determine whether there are bacteria in the water that can make people sick; notification programs let the public know when beaches are closed or present potentially dangerous swimming conditions. Both types of programs are needed to keep families safe and healthy.

States do not have the financial resources to run these programs entirely on their own, without federal assistance. Historically, the EPA's BEACH Act grant program has provided nearly $10 million each year to help states keep their monitoring and notification programs and up and running.34 Though these small grants are less than Congress authorized, they represent critical investments in safeguards for our nation's $90 billion coastal tourism economy, which supports nearly 2 million jobs at more than 100,000 businesses each year.35

However, the president's budget proposals for the past three years have suggested the elimination of all federal funding for the BEACH Act grant program. Congress has twice rejected the president's ill-advised proposal, but the program is at risk again this year. If BEACH Act grants are eliminated, many states will have to reduce their beach monitoring and notification efforts, and those states whose programs are funded solely by federal grants may be forced to shut them down entirely.

With beach pollution still commonly threatening public health, now is not the time to stop monitoring beach water and notifying the public of danger. The administration should not jeopardize the health of millions of people, billions of dollars in economic activity, and millions of jobs in order to shave a tiny fraction off the EPA's budget. The administration should restore EPA funding of the BEACH Act grant program at least at the previous level of $9.8 million.

  1. U.S. EPA Office of Research and Development, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, External Review Draft, at 1-3 (Sept. 2013) (hereafter "U.S. EPA assessment").
  2. U.S. EPA assessment at 1-3.
  3. U.S. EPA assessment at 3-25, citing S.G. Leibowitz et al., "Non-navigable streams and adjacent wetlands: Addressing science needs following the Supreme Court's Rapanos decision," Frontiers in Ecology and the Environment 6 (2008): 364-371.
  4. U.S. EPA assessment at 3-25.
  5. U.S. EPA assessment at 4-1.
  6. Ibid.
  7. U.S. EPA assessment at 4-24, citing T. Gomi, R.C. Sidle, and J.S. Richardson, "Understanding processes and downstream linkages of headwater systems," Bioscience 52 (2002) 905-916; and L.H. MacDonald, and D. Coe, "Influence of headwater streams on downstream reaches in forested areas," Forest Science 53 (2007): 148-168.
  8. U.S. EPA assessment at 4-24, R.A. Bilby and G.E. Likens, "Importance of organic debris dams in the structure and function of stream ecosystems," Ecology 61 (1980): 1107-1113; R.J. Naiman, "Characteristics of sediment and organic carbon export from pristine boreal forest watersheds," Canadian Journal of Fisheries and Aquatic Sciences (1982): 1699-1718; J.B. Wallace et al., "Long-term dynamics of coarse particulate organic matter in three Appalachian Mountain streams," Journal of the North American Benthological Society 14 (1995): 217-232; and P.M. Kiffney, J.S. Richardson, and M.C. Feller, "Fluvial and epilithic organic matter dynamics in headwater streams of southwestern British Columbia, Canada," Archiv für Hydrobiologie 149 (2000): 109-129.
  9. U.S. EPA assessment at 4-2.
  10. U.S. EPA, National Pollutant Discharge Elimination System, Stormwater Wetland, August 2012, available at cfpub.epa.gov/npdes/stormwater/menuofbmps/index.cfm?action=factsheet_results&view=specific&bmp=74.
  11. U.S. EPA, Functions and Values of Wetlands, September 2001, available at water.epa.gov/type/wetlands/upload/2006_08_11_wetlands_fun_val.pdf.
  12. U.S. EPA assessment at 1-3.
  13. U.S. EPA assessment at 1-11.
  14. U.S. EPA, Constructed Wetlands Treatment of Municipal Waters, September 2000, available at water.epa.gov/type/wetlands/restore/upload/constructed-wetlands-design-manual.pdf.
  15. U.S. EPA, Constructed Wetlands, at 56.
  16. U.S. EPA assessment at 3-31, G.R. Hess, "Linking extinction to connectivity and habitat destruction in metapopulation models," American Naturalist 148 (1996): 226-236.
  17. U.S. EPA assessment at 3-29.
  18. U.S. EPA assessment at 5-39.
  19. Charles Duhigg and Janet Roberts, "Rulings Restrict Clean Water Act, Foiling E.P.A.," New York Times, February 28, 2010, available at www.nytimes.com/2010/03/01/us/01water.html?pagewanted=all&_r=0.
  20. U.S. EPA, Economic Analysis of Proposed Revised Definition of Waters of the United States, March 2014, at 10.
  21. Committee on Reducing Stormwater Discharge Contributions to Water Pollution, National Research Council, Urban Stormwater Management in the United States (Washington, DC: National Academies Press, 2008), available at www.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf.
  22. Letter from Peter Silva, U.S. EPA Assistant Administrator for Water, to Jon Devine, NRDC, and Scott Edwards, Waterkeeper Alliance, November 17, 2009.
  23. U.S. EPA, Proposed National Rulemaking to Strengthen the Stormwater Program, available at cfpub.epa.gov/npdes/stormwater/rulemaking.cfm.
  24. Letter from Ken Kirk, Executive Director, National Association of Clean Water Agencies, to Nancy Stoner, Acting EPA Assistant Administrator for Water, February 14, 2014.
  25. Letter from multiple signatories to Gina McCarthy, Administrator, U.S. EPA, October 2013.
  26. U.S. EPA, "Chicago Area Waterway System (CAWS): June 2013 Motion to Enter Decree," available at www.epa.gov/region5/chicagoriver/.
  27. United States and State of Illinois v. Metropolitan Water Reclamation District of Greater Chicago, case 1:11-cv-08859 (N.D. Ill. 2011), consent decree, available at www.epa.gov/compliance/resources/decrees/civil/cwa/mwrd-cd.pdf.
  28. Don Behm, "Green Infrastructure Work Outpaces MMSD's Mandate," Milwaukee-Wisconsin Journal Sentinel, March 5, 2014 available at www.jsonline.com/news/milwaukee/pace-of-green-infrastructure-work-outpaces-mmsds-mandate-b99218007z1-248545981.html.
  29. Department of Planning & Development, Seattle Public Utilities, Director's Rule DWW-201.1 (SPU)/ 15-2012 (DPD), City of Seattle, March 1, 2013, www.seattle.gov/dpd/codes/dr/DR2012-15.pdf.
  30. 33 U.S.C. § 1314(a)(9)(A).
  31. U.S. EPA Office of Water, Recreational Water Quality Criteria, 820-F-12-058, November 26, 2012.
  32. Ibid., at 43.
  33. Ibid., at 44.
  34. U.S. EPA, EPA Grants Available to Implement Beach Monitoring and Public Notification Programs in 2012, fact sheet, January 2012, available at water.epa.gov/grants_funding/beachgrants/upload/2012fs.pdf.
  35. National Ocean Economics Program, Ocean Economy Sector & Industry Data, available at www.oceaneconomics.org/Market/ocean/oceanEcon.asp (search results for economic data in all coastal states' tourism and recreation sectors in 2011).

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