The Year Ahead in Energy and Environmental Law: Water

Water Quality and Wetlands

Nutrients

The upcoming year will likely see more regulation of nutrient discharges, including nitrogen and phosphorus. The TMDL program under the federal Clean Water Act (“CWA”) has been the tool most often used to address nutrient loadings. Regulators are now experimenting with water quality trading programs, which Congress has proposed for the Chesapeake Bay.[1] Some states are also developing numeric water quality criteria for nutrients.[2] EPA Administrator Jackson’s January 12, 2010 Seven Priorities for EPA’s Future memorandum lists nutrient pollution as an EPA priority for this year, illustrating that in 2010 we can expect to see a greater focus on limiting nutrient discharges, and continued debate as to the best way to do so.

Stormwater Regulation

Stormwater regulation will become more stringent in 2010. EPA is implementing its Clean Water Act Enforcement Action Plan (“CWA Action Plan”), which aims to overhaul and increase federal and state water quality enforcement, particularly against concentrated animal feeding operations, industrial and construction sites, and municipal separate stormwater systems. EPA has said it will address stormwater by: (1) targeting enforcement at the largest sources, including both point and non-point discharge sources; (2) strengthening oversight of state water quality compliance and enforcement, including possible direct EPA action where state enforcement is perceived as lacking; and (3) improving transparency and accountability, including mandatory nationwide electronic reporting of water quality permit data and reports. EPA is expected to focus initially on mining companies, large livestock farms, municipal wastewater treatment plants, and construction companies.[3]

EPA also recently released a long awaited final construction stormwater rule that will impact nearly every construction and development project in the United States.[4] The rule establishes, for the first time, a numeric limit on stormwater discharges from large construction sites. The rule also requires nearly all construction sites to implement a range of erosion and sediment controls and pollution prevention measures. The rule’s requirements will be implemented in the upcoming months through issuance and modification of NPDES permits. EPA’s final rule will also require revisions to state-issued general construction stormwater permits in 2010.

Federal Jurisdiction over Wetlands – the Clean Water Restoration Act

The coming year will likely see Congress continue to debate whether to amend the CWA to clarify the scope of federal jurisdiction over “isolated” waterbodies. The Obama Administration supports legislation[5] to establish federal jurisdiction over an estimated 20 million acres of wetlands, tributary and isolated waters, prairie potholes, and mudflats.[6] The United States Supreme Court has held these types of waterbodies to lie generally outside federal jurisdiction.[7] Although legislation has been introduced three times (in 2003, 2005, and 2007) to bring isolated waterbodies under the Clean Water Act, all three efforts have failed. Proponents of the legislation will try again in 2010, under the proposed Clean Water Restoration Act  (“CWRA”), S.787, which has the support of the White House. For further analysis of CWA jurisdictional issues, see our articles Three Strikes – You’re Still Not Out: Senate To Again Consider Controversial Legislation to Broaden Federal Clean Water Authority, Marten Law Environmental News (June 12, 2009) and Legislative Solution Possible to Resolve Uncertainty Surrounding Clean Water Act Jurisdiction, Marten Law Environmental News (February 13, 2009).

If the CWRA passes, EPA would begin to regulate water quality, stormwater discharges, water supply and infrastructure, and all other activities that have the potential to create water pollution in the newly covered waters. These waters have not completely escaped regulation, but they have, to date, tended to be regulated by state and local governments. They would become subject to federal regulation if the law is passed, likely adding significant new compliance costs and obligations. Enactment of the bill would almost certainly lead to challenges, and so the issue is likely to be debated beyond 2010.

Water Rights

Many alternative energy projects, including concentrated solar power, small-scale hydro-power, nuclear power, and biomass need large amounts of water to operate.[8] This year, Congress is expected to consider whether to enact the Energy and Water Integration Act,[9] which is more fully discussed in our article Will Energy Producers Run Out of Water Before They Gather Steam?, J. Kray, Marten Law Group Environmental News (March 25, 2009). The Act would require the Energy Department to analyze the impact energy development and production has on United States water resources and develop an “Energy-Water Research and Development Roadmap” to address water-related challenges to energy production.[10] It would also require the National Academy of Sciences to study water use and consumption related to different methods of producing fuel for transportation and electricity.[11] At the same time, the Energy Department would be required to identify best available technologies to maximize water and energy efficiency in electricity production.[12] Finally, the Act would require the Interior Department to identify Bureau of Reclamation water storage and delivery projects that consume the most energy and identify opportunities to conserve water and energy use related to such projects.[13] Collectively these studies would be first steps toward requiring greater water conservation by energy producers.

In order to meet expected water needs, energy producers and other water users have relatively few options. They are to:

• Establish new water rights (a lengthy process and one which has to be considered unlikely in most watersheds),
• Acquire previously established water rights from existing permit holders, or
• Acquire water supplies from a public supply entity such as a city, water or irrigation district, or a private water company.

It is prudent for any energy producer, industrial or agricultural water-user, developer, municipal water supplier, or other water user to inventory their future water supply needs, plan for a future in which water supplies will continue to tighten, and work to secure water rights to meet their present and anticipated needs.