This year marks the 50th anniversary of the federal Clean Water Act (CWA). Recent articles in Wisconsin Lawyer have noted some of the dramatic improvements in water quality since passage of the CWA in 1972. This is particularly true for waterbodies whose water quality had been historically impaired from end-of-pipe, point source discharges and conventional pollutants. There have been dramatic reductions in conventional pollutants that enter waterways through a discrete pipe or conveyance. The upshot is that in places where the CWA provides for regulatory control, it has worked very well at reducing the discharge of pollutants into waters in the United States.
Given the success of the CWA approach, some may wonder why so many water quality concerns persist in Wisconsin. One answer is the existence of nonpoint (diffuse) source runoff. While the CWA has been effective at reducing pollution from point sources, the scope of authority under the CWA is limited with respect to nonpoint sources. Instead of taking a regulatory approach to nonpoint runoff, federal and state governments rely on a patchwork of largely voluntary programs and grants.1 Congress had legitimate reasons to limit the regulatory scope of the CWA in 1972, and those same practical and political reasons persist 50 years later. However, the pragmatic exclusion of nonpoint sources creates one of today’s biggest water quality challenges: Nonpoint source pollution remains a leading cause of impairment to the nation’s waters.2 These challenges require farmers, urban-area residents, and businesses to change behaviors and practices in the absence of traditional regulation.
Another area of ongoing water quality concern relates to emerging contaminants, such as per- and polyfluoroalkyl substances (PFAS), pharmaceuticals, medicine, cleaning products, and personal care products, for which conventional wastewater treatment processes typically do not work. Because emerging contaminants typically cannot be treated via conventional wastewater treatment processes, regulation of these pollutants often relies on source reduction and pollutant minimization measures, which prevent these pollutants from entering the waste stream in the first place.
Both nonpoint source pollution and emerging contaminants pose significant challenges for regulators and others working to advance continued improvements in water quality. There are, however, some creative approaches to regulation that might continue the significant improvements in water quality resulting from the CWA.
The Nonpoint Landscape
Nonpoint source pollution occurs when water from rain, melting snow, or irrigation runs over land or into the ground, picks up pollutants, and deposits them into streams, rivers, lakes, and groundwater. In conceptualizing nonpoint pollution, it is helpful to think about a drop of rain in Wisconsin and the journey it will take back to a body of water. Any pollutant it picks up along the way can become part of the nonpoint problem. During its course, this drop of rain may encounter nonpoint pollutants such as nutrients from agricultural sources or leaf debris, chlorides from road salt, motor oil, animal waste, or sediments.
Vanessa Wishart, U.W. 2012, is a partner at Stafford Rosenbaum LLP, Madison. She practices in environmental law, including water and wastewater utility work, remediation and redevelopment, and land use. Before joining the firm, she was a law clerk in District IV of the Wisconsin Court of Appeals.
Jane Landretti, Drake 2004, practices with Stafford Rosenbaum LLP, Madison, in environmental, administrative, and local government law. She was previously chief legal counsel at the Department of Agriculture, Trade and Consumer Protection and a staff attorney at the Wisconsin Department of Natural Resources and the Wisconsin Department of Transportation.
Get to know the authors: Check out Q&A below.
That drop of rain has a much different journey than it did 50 years ago, when more drops of rain landed in a natural unpaved environment than today. Those raindrops would generally seep into the soil, trickling down to replenish groundwater. Under those circumstances, many pollutants in the water would naturally attenuate.
Over the past 50 years, much more pavement and other constructed, impervious features have become part of the landscape. Even if rainfall and storm-event frequency remained unaffected by climate change (which they do not), the dramatic increase in impervious surfaces alone would still generate much higher volumes of runoff as compared to years past. In turn, far more water runoff enters storm drains, which convey it directly to nearby bodies of water.
Adding climate change to the mix, in Wisconsin, there are more raindrops, with increasing frequency of intensity, landing on more impervious surfaces.3 With this increase in development and climate change impacts, the runoff’s journey to groundwater or a surface water body will likely occur more swiftly and with less natural ability to attenuate pollutants than it did 50 years ago.4
Addressing Nonpoint Source Pollution: Two Approaches. The fundamental challenge to managing this nonpoint source pollution is that the CWA regulates discharges from point sources. It was not written to address the nonpoint sources. In response to this basic limitation, two types of efforts have arisen.
One has been to engage in the legal fiction that some nonpoint sources are point sources that require permits under the CWA. This has been the approach taken for some urban stormwater sources and for concentrated animal feeding operations (CAFOs). But given the different nature of the discharges, CWA permits for those “point sources” are different than traditional point source permits. They tend to rely more on best management practices than numeric effluent limits.
The other approach has been to use a series of incentives. Examples of this can be seen in Wisconsin’s nonpoint regulations in Wisconsin Administrative Code chapter NR 151, which establish agricultural performance standards that are enforceable only when cost-share funds are available. Various federal programs also provide an incentive-based approach. Each approach is imperfect.
Non-Point “Point Sources”
Stormwater “Point Sources.” When stormwater from some sites or activities meets certain thresholds, it is regulated as a point source under federal and Wisconsin law.5 Following the CWA permitting standards, Wisconsin requires a point source discharge permit for a construction site of one acre or more, certain industrial activities, and municipal stormwater discharges. Like other industries, these dischargers must obtain a Wisconsin Pollutant Discharge Elimination System permit to cover any discharge to a water of the state.6
In contrast to traditional point sources that typically have one or two outfalls with predictable flows, stormwater discharges typically have a large number of outfalls with highly variable flows. This difference makes traditional wastewater permitting a practical impossibility for many stormwater discharges. Lawmakers have recognized this difference and responded by using a different permit approach than a traditional wastewater permit.
Most important, these permits generally take a narrative approach rather than imposing the numeric standards in traditional point source permits. In other words, they measure success (and compliance) by the use of best management practices that tend to attenuate the movement of pollutants into waterbodies. Permit holders implement practices prescribed by Wisconsin Department of Natural Resources (DNR) administrative rules to manage the rate of flow and to detain the water in basins so that the sediment and other pollutants can settle out before the stormwater is discharged into water of the state.7 Stormwater permit holders create features such as rain gardens, stormwater ponds, and other vegetation-based systems that capture stormwater to filter pollutants. They also encourage permeable pavements that allow stormwater to drain into the ground to give the pollutants a chance to attenuate before the water enters surface water and groundwater.
Agricultural “Point Sources.” CAFOs that reach or exceed a specified size also trigger a point source permit.8 This is another example of a nonpoint source that is defined in legal fiction as a point source to allow some CWA regulation.
Wisconsin’s point source permits reach far more of its CAFOs than does the permitting approach of most other states. This is in part because Wisconsin law protects both surface water and groundwater within the scope of “waters of the state.”9 This contrasts with the federal law and many other states, whose water quality standards reach only certain surface waters and not groundwater.
One significant effect of including groundwater within regulatory purview is that Wisconsin law presumes a discharge to groundwater for CAFOs of specified sizes.10 The permitting requirement is based on the presumption that pollutants will reach waters of the state (at least groundwater) where specified amounts of manure are stored and applied to the land, such as at a large CAFO. Once a CAFO triggers the size threshold because of activities at the production area where the animals are housed, it must also comply with land-spreading requirements without the benefit of the state sharing the cost.11
Carrots Over Sticks
The CWA provides distinct thresholds for when diffuse runoff will require a permit. But the CWA takes a far more patchwork approach to nonpoint activities that do not trigger a permit requirement. There is little regulation designed to address nonpoint water quality problems.
Nonpoint Farm Runoff. Under section 319 of the CWA, each year the U.S. Environmental Protection Agency (EPA) provides grants to states to implement programs and fund projects that address nonpoint source pollution. The state primarily addresses nonpoint agricultural pollution through incentive programs such as cost sharing, adaptive management, and water pollution credit trading.
Cost sharing is the most traditional of these approaches. The easiest path to cost sharing happens when there is a farmer willing to perform practices with cost-share payments. Without a willing farmer, there can still be a path forward, including a regulatory hook. But it can be a hard row to hoe. State or county conservation staff must often perform extensive observation and documentation before cost sharing is offered to an unwilling farmer to require compliance.12
County conservation departments, the DNR, and the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) each play a statutory role in the cost-share process. Many cost-share activities rely on administrative rules from both agencies and an engaged county or state staff member to administer and follow up on the cost-share implementation. The DNR promulgates performance standards that establish which targets will achieve water quality standards, while DATCP rules incorporate technical standards that tell a farmer how to achieve those performance standards. Given the different roles the statute assigns each agency, generally both agencies must perform their rulemakings before a given practice can be required of most farmers.13 Even after the two agencies finish administrative rulemaking, the performance standards will still only take mandatory effect if funds (usually from federal grants) are available to offer cost sharing and a county or state staff member has the time and inclination to make the offer of cost sharing.14 The process does not reflect a sense of urgency.
There are great examples of Wisconsin farmers taking steps to reduce the nutrients leaving their land. Farmer-led watershed-management projects show voluntary collective action, such as planting cover crops without a regulatory requirement to do so. But the drive for farmers to participate in these programs is largely self-imposed.
Nontraditional Permit Compliance.Actions to reduce nonpoint source pollution are also incentivized through some options in Wisconsin for nontraditional point source permit compliance. While permit holders in Wisconsin can opt to upgrade wastewater treatment plants to meet permit limits, they also have the option to trade with other point or nonpoint sources, undertake adaptive management, or participate in the multidischarger variance (MDV) to comply with or obtain a variance from certain limits in their permits. Because most point sources have already reduced loadings of some conventional pollutants from their wastewater discharges to very low levels, these nontraditional options for permit compliance can have a significant effect on reducing nonpoint source pollution.
Water quality trading provides one mechanism for reducing pollution from nonpoint sources. Generally, water quality trading involves a point source facing relatively high costs for pollutant reduction compensating another party (often, a nonpoint source of pollution) to achieve less costly pollutant reduction with the same or greater water quality benefit.15
Adaptive management is another compliance option that allows point source permit holders to work with nonpoint sources to improve water quality through implementation of projects such as streambank stabilization to meet certain water quality standards. The waterbody is then monitored over time to assess compliance.
Finally, the MDV for phosphorus provides eligible point source permit holders with a variance option that includes interim phosphorus limitations in exchange for investment in nonpoint source reduction projects.16 This investment can come through work either with the DNR or a third party on projects that ameliorate nonpoint source pollution or through payments to counties that then implement projects to support nonpoint source pollution reduction.
Emerging Contaminants
Emerging contaminants are another major challenge to improving water quality. At first blush, one might assume emerging contaminants can be regulated just like conventional pollutants from point sources. However, their regulation in practice often takes a best management for pollutant prevention approach, similar to the regulation of nonpoint source pollution. This is because many emerging contaminants, such as PFAS, pharmaceuticals, and personal care products, cannot be removed from the waste stream via conventional treatment processes. Thus, the regulation of emerging contaminants must include more creative solutions than the imposition of limits in point source permits.
Prevention Over Treatment
Although emerging contaminants can present unique water quality challenges, their successful regulation is often tied to a simple premise: Preventing pollution can be easier than treating it. Conventional wastewater treatment processes implement a combination of physical, chemical, and biological processes to remove solids, organic matter, and sometimes nutrients from wastewater. These processes do a good job of removing conventional pollutants, such as biochemical oxygen demand and total suspended solids, from the waste stream. Conventional wastewater treatment processes typically cannot, however, remove emerging contaminants from wastewater. This means that point source permit holders might not be aware that emerging contaminants are entering waters of the state.
One option for ensuring emerging contaminants do not enter surface and groundwater is to upgrade conventional wastewater treatment plant systems. Systems such as reverse osmosis can effectively remove many additional pollutants from the waste stream. Such upgrades, however, are extremely expensive and leave contaminated residuals that are hard to dispose of.
Instead, regulations for nonconventional pollutants and, more recently, emerging contaminants, have often focused on preventing the pollutants from entering the waste stream in the first place. This is accomplished through the implementation of source reduction measures and pollutant minimization programs. These types of programs rely on education, local regulation, and best management practices to stop nonconventional pollutants and emerging contaminants from being sent down the drain and into wastewater treatment facilities. Source reduction and pollutant minimization approaches have been implemented historically, and often quite successfully, for substances such as mercury and chlorides that cannot effectively be treated through conventional wastewater treatment processes. This pollutant prevention model is now being implemented to address emerging contaminants in a cost-effective way.
PFAS Regulation
In some ways, PFAS compounds epitomize the major challenges with regulating emerging contaminants. PFAS were widely used from the 1940s through the early 2000s in numerous consumer products such as non-stick cookware, food packaging, stain-resistant coatings, and water repellants. These compounds are known as “forever chemicals” because they are resistant to chemical breakdown. PFAS are ubiquitous in the environment and cannot be treated with conventional wastewater treatment processes. This means that the best way to keep PFAS from entering waterbodies from point sources is by preventing them from entering the wastewater discharges in the first place.
The DNR has adopted this pollution prevention style approach for regulation of two PFAS compounds, perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA), in new rules for surface water quality standards that recently became effective.17 The new surface water standards for PFOS and PFOA establish thresholds of public health significance of 8 parts per trillion (ppt) for PFOS and either 20 ppt or 95 ppt for PFOA, depending on whether the subject surface water was a public drinking-water supply.
These new regulations take a different approach than the method of simply implementing effluent limitations in point source permits. Instead of immediately imposing effluent limitations, the DNR plans to first collect data from point source discharges to determine the level of PFOS and PFOA in wastewater influent and effluent and, as necessary, require implementation of PFAS pollution minimization programs. These programs would require point sources to identify sources of PFOS and PFOA entering their wastewater and work with dischargers of these compounds to implement source reduction on the front end.
Concern continues over other emerging contaminants, such as pharmaceuticals, which cannot be treated through conventional treatment methods. For these compounds, we are likely to see regulation taking the form of source reduction and pollutant minimization programs.
Conclusion
Overall, the CWA has been a huge success and should be celebrated. For both nonpoint pollution and emerging contaminants, however, preventing pollution is much easier than treating it. State and local governments must find and use creative solutions to meaningfully address persisting nonpoint pollution and emerging contaminants.
Meet Our Contributors
What prompted your interest in environmental law, specifically water issues?
My childhood was filled with outdoor adventures, from camping in the Sandhills region of my home state Nebraska, to walks through the woods near my father’s childhood home in England. These experiences made me cherish the beauty of the world around me. They also taught me how precious the environment is in all our lives. Working in the environmental law field is a great opportunity to continue to engage with the environment, and the people to whom it matters deeply, every day.
Vanessa Wishart, Stafford Rosenbaum LLP, Madison
What prompted your interest in environmental law, specifically water issues?
One reason I care so much about clean water is that I love the sport of triathlon. When triathletes visit Wisconsin from elsewhere, I feel proud when they marvel at our beautiful lakes. Now my kids are getting old enough to take up the local junior triathlons. I had not appreciated before that hundreds of Wisconsin children are learning the sport of triathlon. It makes me so excited to see them embracing the silent sports like open-water swimming. It also compels me to make sure we will always have our clean Wisconsin lakes to offer them.
Jane Landretti, Stafford Rosenbaum LLP, Madison
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Endnotes
1 See Wis. Stat. § 281.65.
2 EPA, Basic Information about Nonpoint Source (NPS) Pollution, www.epa.gov/nps/basic-information-about-nonpoint-source-nps-pollution (last updated July 7, 2022).
3 According to the Wisconsin Initiative on Climate Change Impacts, many parts of Wisconsin now receive 15-20% higher annual rainfall as compared to 1950. Trends and Projections, https://wicci.wisc.edu/wisconsin-climate-trends-and-projections/ (last visited Sept. 16, 2022).
4 Paul Kent, The Challenge of Water Abundance: Managing Stormwater in a Watershed Context (95 Wis. Law. 20 (May 2022)), www.wisbar.org/newspublications/insidetrack/pages/Article.aspx?Volume=95&Issue=5&ArticleID=29087.
5 Wis. Admin. Code ch. NR 216.
6 Wis. Stat. § 283.33.
7 Wis. Admin. Code §§ NR 151.10-.15 (non-agricultural performance standards).
8 A CAFO may trigger the permitting threshold either by its size or with a discharge to surface water where a federal, state, or local unit of government has conducted an investigation and followed the notice-of-discharge procedures to document the discharge. Wis. Admin. Code §§ NR 243.21-.26 (other animal feeding operations).
9 Waters of the state are defined as “those portions of Lake Michigan and Lake Superior within the boundaries of Wisconsin, all lakes, bays, rivers, streams, springs, ponds, wells, impounding reservoirs, marshes, water courses, drainage systems and other surface water or groundwater, natural or artificial, public or private within the state or under its jurisdiction, except those waters which are entirely confined and retained completely upon the property of a person.” Wis. Stat. § 283.01(20).
10 Wis. Admin. Code § NR 243.11(1).
11 A point source permit is not required for a discharge that is an agricultural storm water discharge to surface waters. Where a permit holder has complied with its land application requirements and its WPDES permit, a discharge that results from the land application of manure or process wastewaters to surface water is an agricultural storm water discharge. Wis. Admin. Code § NR 243.14(2)(a).
12 Wis. Admin. Code. §§ NR 243.21-.26 (other animal feeding operations).
13 The Standards Oversight Council can prescribe technical standards to assist farmers without the onerous rulemaking process that state agencies must exhaust. Technical standards will not be mandatory for most non-CAFO farmers until rules make the standards cost sharable. Wis. Stat. § 281.16. In contrast to state agencies that can work on standards only after a scope statement has been issued and approved, the Standards Oversight Council can continuously update technical standards. Technical standards are exempted from the definition of “rule.” Wis. Stat. § 227.01(ys).
14 See Wis. Stat. § 283.84.
15 In addition to conventional trading, Wisconsin law was recently revised to provide for trading via a water quality trading clearinghouse. See 2020 Wis. Act. 151. The clearinghouse entity would buy credits from nonpoint sources, which could implement practices or undertake other actions to reduce loadings of pollutants into waters of the state and from point sources that have been able to reduce loadings below required levels. Credits could then be sold to point sources to meet permit limits. The trading clearinghouse is still under development, but it has the potential to provide an additional mechanism to encourage and support water quality improvements through trading.
16 See Wis. Stat. § 283.16.
17 Wis. Admin. Code §§ NR 102.03, 102.04, 105.04, 106.97-996, 219.04.
» Cite this article: 95 Wis. Law. 22-27 (October 2022).
