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September 8, 2008

NACWA’s Strategic Watershed Task Force, building on the report it issued last October, Recommendations for a Viable and Vital 21st Century Clean Water Policy () (See Member Update 07-18), has now completed work on initial draft legislation that would create a more holistic, watershed-based approach to improving water quality.  The Twenty-first Century Watershed Act (), or TCWA, addresses both the short and long-term recommendations identified in the Task Force’s earlier report.

Task Force Chair Charlie Logue, Director of the Regulatory Affairs Department for Clean Water Services in Hillsboro, Oregon, unveiled the key elements of the draft TCWA during a presentation at NACWA’s 2008 Summer Conference in Anchorage.  NACWA is now providing the membership with an opportunity to review and provide input into the TCWA before engaging in a broader stakeholder process with environmental activist groups, the states, and other key stakeholders to seek feedback on the concepts in the legislation and begin to garner support for it.  NACWA’s Board of Directors and leaders of the Association’s standing committees will conduct the first of these stakeholder discussions during the Association’s Fall Strategic Leadership Retreat and Board of Directors Meeting, September 22-23, in Washington, D.C.

NACWA welcomes input from the membership on the draft legislation and requests that comments be provided to Chris Hornback, NACWA at This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spam bots, you need JavaScript enabled to view it by September 8, 2008.

Watershed Act Embodies Fundamental Shift in Approach to Water Policy

The Task Force’s October 2007 report recognized the significant contribution of clean water agencies to improving the quality of the nation’s waters over the past 35 years, but also highlighted that we are now spending increasing amounts of resources to curtail end-of-pipe discharges without a proportionate return on investment in terms of improved water quality.  While point sources will always remain a part of the solution, the Task Force noted the importance of embracing a true “watershed approach” to enable more comprehensive control strategies that hold accountable the many diffuse nonpoint contributors to water quality impairments across the country.  The 2007 report outlined a series of short and long-term recommendations for reinvigorating the nation’s water quality programs.  Over the past ten months, the report and its key recommendations have been front and center in the ongoing debate on improving water quality.

NACWA and many other Clean Water Act (CWA) stakeholders increasingly believe that without significant and fundamental change to the various water resource management statutes including the CWA, as well as a number of the other environmental statutes that can have impacts on water quality, continued progress toward restoring and maintaining the physical, chemical and biological integrity of the nation’s waters, the fundamental objectives of the CWA, will not be achieved.  NACWA believes that the TCWA will help to initiate a dialogue on the need for these fundamental changes.

At the same time, there is also an opportunity to achieve individual objective of the TCWA through a more targeted advocacy effort.  For example, with the recent national focus on climate change and energy independence issues, the importance of water as it relates to these growing challenges provides opportunities to make smaller, targeted changes in other legislative efforts that are consistent with the TCWA.

Overview of the Twenty-first Century Watershed Act

The fundamental principle upon which the TCWA (DOC) is based is that water quality is best assessed and addressed at the watershed level.  Under the TCWA, water quality is not evaluated on a pollutant by pollutant basis for each waterbody segment, but is based on the health of the entire watershed, including an evaluation and prioritization of the activities and issues which are impacting water quality, water quantity and aquatic habitat across the watershed.  This more holistic approach is modeled after the existing CWA Section 208 planning process and relies on the establishment of Watershed Quality Commissions by the states.  Under the TCWA, these Watershed Quality Commissions would develop and oversee watershed improvement implementation plans designed specifically to address the problems in a particular watershed.  The implementation plan concept is based on the Clean Air Act’s (CAA) successful statewide implementation programs (SIPs) that put more control of the proposed solutions in the hands of state and local governments.  The TCWA also relies on broad stakeholder involvement at all stages and would allow for better consideration of local conditions impacting the watershed.

As currently drafted, the TCWA would supersede the existing water quality assessment programs under sections 305(b) and 303(d) of the CWA where impairments lead to the development of total maximum daily loads (TMDLs) and ultimately water quality-based effluent limits.  The TCWA’s watershed quality assessment is used in lieu of these existing programs.   How controls are then developed and implemented to address identified watershed level water quality problems would also be revamped by the TCWA.  Rather than develop loadings to allocate to dischargers for a particular waterbody, the TCWA’s comprehensive, and site-specific watershed improvement plans (WSIPs) would target controls using a more holistic approach in which priorities could be established based on the unique local conditions.  The WSIPs would be implemented by various groups and agencies with oversight and accountability to the Watershed Quality Commissions.

The TCWA is designed to build upon the successful elements of existing federal statutory and regulatory frameworks (CWA, CAA, Safe Drinking Water Act, Endangered Species Act, Coastal Zone Management Act, etc.) to guarantee that the TCWA’s new water resource management approach addresses all possible sources of pollutants and is ultimately viable and effective.  If not specifically revised or modified in the TCWA, the existing federal frameworks would continue to function and serve as additional environmental protection.

TCWA Timeline of Actions

The following timeline identifies an initial overview of anticipated changes and actions that would result from enactment of the TCWA and provides a brief summary of what the TCWA attempts to accomplish.  There are details that still need to be worked out, but NACWA hopes the draft TCWA will serve as the essential framework.  

Upon Enactment of the TCWA

• The CAA is amended to provide for considerations of the impact of air pollutants in water (air deposition).
• The CWA is amended to provide a point source discharger an extension of time, not to exceed ten years, to comply with the provisions of section 402 (National Pollutant Discharge Elimination System, NPDES permit), if the point source seeks to implement innovative or alternative processes for improving watershed quality and is approved by EPA or the appropriate state water pollution control agency.
• Governors appoint Watershed Quality Commissions to develop watershed specific improvement implementation plans (WSIPs).
• EPA initiates watershed-based research and studies.

One Year from Date of Enactment:

• EPA publishes guidelines for assessing watershed quality, using the following designations: excellent, good, fair and poor.
• EPA promulgates regulations that harmonize watershed quality assessments with sections 305 (b) and 303 (d), allowing the watershed quality assessments to be substituted for those sections for all purposes.

Two Years from Date of Enactment:

• EPA publishes a watershed monitoring and assessment plan to be utilized by watershed quality commissions and guidelines for the development of watershed improvement implementation plans (WSIPs) and state-wide watershed improvement implementation plans (SWIIPs), including the date for submission of SWIIPs.
• States/watershed commissions begin watershed monitoring and assessment, and begin developing watershed improvement implementation plans.
• EPA, in coordination with the U.S. Department of Agriculture, reports to Congress on the implementation and effects on water quality for each farm program authorized or created under the Farm Bill to improve environmental quality.

Three Years from the Date of Enactment:

• Watershed quality commissions submit watershed improvement implementation plans to the state water pollution control agency.
• Within 60 days after receiving watershed improvement implementation plans, the state provides comments to the watershed quality commission.
• Within 60 days after receiving the state’s comments, the watershed quality commission revises its watershed improvement implementation plan, responding to such comments.
• Within 60 days after receiving the commission’s revisions, the state approves the watershed improvement implementation plan unless it clearly fails to achieve the requirements of the Act, in which case the state develops that portion of the plan that was not approved.
• The State consolidates the watershed improvement implementation plans to create a state watershed improvement implementation plan (SWIIP) and submits it to EPA in accordance with the schedule and plan EPA has published.  EPA then begins the comparable EPA approval process.
• States and watershed commissions begin to implement approved SWIIPs.

Four Years from the Date of Enactment (One Year from the date EPA establishes for submission of SWIIPs and every five years thereafter)

• EPA reports to Congress on the results of watershed-based research and studies.

Five years from Date of Enactment and Every Five Years Thereafter:

• EPA revises guidelines for assessing watershed quality.
• EPA revises the watershed monitoring and assessment plan.

Six Years from Date of Enactment and Every Five Years Thereafter:

• EPA reports to Congress on the progress made toward achieving excellent water quality within watersheds, and the costs and benefits associated with such progress.

• States must demonstrate progress acceptable to EPA toward achieving the schedules in a SWIIP to assure excellent water quality within its watersheds within 20 years from enactment.