Clean Water Action Plan: a First Step Toward Land Use Control?

Published December 1, 1999

To mark the twenty-fifth anniversary of the Clean Water Act’s passage, the Clinton-Gore administration released its Clean Water Action Plan (CWAP), aimed at bringing together under a single umbrella a wide range of federal environment initiatives.

The proposal deflected attention away from Clean Water Act reauthorization, which no one appears to be interested in for fear of creating something worse than what already exists.

Filling the Gaps with CWAP

The CWA’s weaknesses are widely recognized. Chief among these is the lack of a coordinated watershed management approach that improves surface water quality–thus Clinton-Gore’s opportunity to fill the gaps with a broad, over-reaching plan to control everything from agricultural runoff, nutrients, and pathogens to heavy metals, data collection, and land use planning.

Media hysteria over polluted “hot spots” in Chesapeake Bay and other places around the country enabled EPA to capitalize on the moment. In a speech this summer, President Clinton commented, “parents have a right to expect that our recreational waters are safe for their children to swim in.”

With these words, EPA has become a public health agency. “Mission creep” has expanded its authority from the environment to public health and land use planning. Through 11 federal agencies and state, tribal, and local governments, EPA will coordinate the 111 action items contained in the Clean Water Action Plan. Such a broad mandate will cost plenty.

Though the program is a mere two years old, CWAP funding has already reached staggering levels. In 1998, the program’s first year, the base appropriation was slightly over $1.6 billion. President Clinton requested $568 million for the 1999 CWAP budget, though Congress appropriated about a third of this amount. The President’s 2000 budget request is even more audacious, with nearly a $2.3 billion price tag to accomplish a laundry list of watershed-related matters.

Three Major Themes

Although scores of goals are spelled out in the plan, three major themes anchor the document and make EPA the master of “mission creep”: unified watershed assessment; water quality monitoring and implementation of “pollution caps” within watersheds; and a citizens’ right-to-know component.

According to the first year’s CWAP report, the Unified Watershed Assessment (UWA) is the first national, coordinated record of state and tribal water quality. With assistance from USDA, states and tribes collected existing water quality information to establish priorities within watersheds. All of the states, the District of Columbia, six territories, and 18 tribes have completed UWAs.

With information from those UWAs, EPA and the states are empowered to set “pollution caps” on all sources, point and non-point, through something called total maximum daily loads (TMDLs). Of all the elements of the Plan, TMDLs are the most controversial. There is some doubt as to whether EPA even has the authority to apply TMDLs to non-point sources of pollution.

The TMDLs are aimed at forcing all sources to reduce such pollutants as phosphorus, nitrogen, and sediment that enters a watershed by allocating an acceptable level of emissions–“pollution caps”–from factories, sewage treatment plants, farms, and urban areas. By restricting how much pollution each land use contributes to a watershed, water quality should improve.

Sediment reductions, for example, could be accomplished by establishing buffer strips, or by limiting various types of land development or land-altering activities such as agriculture, forestry, and mining. Some activities might be prohibited altogether in a specific watershed.

The third CWAP component, citizens’ right-to-know component, is embodied in the Water Information Network (WIN), an Internet-based service that will provide specific information on the health and quality of watersheds with real-time monitoring data, technical and financial assistance information, laws, regulations, and more. In addition to EPA, the other cooperating agencies and stakeholders will place information onto the system, allowing anyone with a computer to access the data and receive a report on specific watershed conditions.

Unsound Footing for Policy-Making

CWAP’s policy prescriptions are built on a disturbingly weak foundation of poor water quality data. Much of the data in the UWAs, for example, are incomplete or significantly dated. Water quality monitoring itself is a difficult task, and some of these data are flawed as well.

For example, EPA claims that 60 percent of impaired waters nationwide are due to agriculture. But a close look at the agency’s “muddy math” reveals that the agency has double, triple, or even quadruple-counted certain stream segments, and then used that a small universe of stream-miles to generalize across the nation. Both the U. S. Geological Service and the National Research Council question EPA’s science.

The WIN information service also raises data-quality questions, having to do with how citizens and other groups will collect water quality data for inclusion in the service, what will constitute proper scientific collection, who will certify the validity of the data gathered, and how the information will be used.

What the Future Holds

The Clean Water Action Plan clearly expands EPA’s authority, but does so without legislation authorizing the agency to take on its proposed new roles. By combining the three key themes, unified watershed assessments, “pollution caps” and citizen right-to-know, CWAP allows EPA to become not only a federal public health agency, but a federal land use planning agency as well.

Browner and her staff will continue to take aim at the 111 CWAP action items–such tasks as restoring watersheds, addressing pollution from septic systems, identifying fish habitat, and linking “smart growth” strategies–until the Plan is fully implemented.

This last action item–hitching CWAP to the “smart growth” bandwagon–should concern all state and local governments. Because once EPA applies the “pollution caps” to watersheds, it will effectively place much land use planning under its domain. EPA might well achieve what it’s been striving after for decades: federal control over all land uses, and thus the power to decide the best economic or social uses for all of the country’s natural resources.

Jefferson G. Edgens is an adjunct scholar with the Mackinac Center for Public Policy Research headquartered in Midland, Michigan. He can be reached at [email protected].