Waters
of the US
I have long been a supporter of the navigable waters
concept. Not because this approach is most protective of our surface waters. Rather,
navigable waters is a pragmatic acknowledgment of the States' ability to
assess compliance with ambient water quality standards for major surface waters,
given their limited financial support for water quality monitoring.
State water quality monitoring programs to assess
compliance with water quality standards typically consist of monthly sampling.
This is the time/temporal aspect of compliance assessment. The spatial
component of water quality compliance monitoring is determined by state
scientists and is spatially spread out on streams/rivers/lakes/reservoirs/estuaries/etc.
The net result is that a relatively small space/time grab sample is intended to
represent much spatial and temporal variability.
So with that in mind, consider what expansion of the Waters
of the US implies for water quality monitoring. First, consider this
obvious point - if you do not observe something about which you want to draw a
conclusion, you have essentially no basis for a meaningful conclusion. So,
we can expand the regulatory Waters of the US to the smallest stream, but
unless there is corresponding water quality monitoring, this expansion is
essentially meaningless for surface water quality protection for that stream.
To express this point in everyday terms, consider highway speed monitoring. If a
speed limit on a particular road is increased to, say 55 mph, yet there is no
police/sheriff enforcement, then drivers are free to speed as they choose. Regulatory
enforcement is essential.
Given that perspective, if the definition of the Waters of
the US is expanded, the states must either increase their water quality
monitoring budget or discontinue some current monitoring so they can monitor
waters newly-designated as in need of regulation. I have spoken with several
state agency scientists about this. None of them expected an increase in their
water quality monitoring budgets if the definition of Waters of the US is expanded
beyond navigable waters. Further, these scientists expressed reluctance
to change/discontinue current water quality monitoring even with this proposed
expansion. Right or wrong, their tendency was to continue monitoring at current
locations to focus on water quality trends over time.
Consider what water quality monitoring beyond navigable
waters means for protection of US surface waters. For the most part, with
exceptions, these non-navigable waters are "smaller" than the
navigable waters and have less impact on waterbody use and enjoyment than do
the larger navigable waters. I know that individuals will object to this
conclusion for a particular waterbody, but this conclusion is hard to reject
for all situations.
Water quality monitoring for wetlands is essentially
distinct from monitoring for other surface water bodies, as wetlands have
unique and considerable biological features. As a result, states have
established wetlands water quality standards that reflect this biological
focus. Regardless, states tend to not monitor wetland water quality for
regulatory compliance. For example, the North Carolina Wetlands Program states
that "The state does not have a formal. ongoing, wetland monitoring
program."
So what do I recommend for Waters of the US designation,
and why. Unless states are willing to expand water quality monitoring budgets,
I think that a navigable waters basis for water quality monitoring stations
makes the most sense. In general, navigable waters monitoring is more likely to
discover water quality standard violations of significance, as larger
waterbodies affect more people.
I realize that my opinion is not widely
held within the environmental community. Yet this group should not ignore the
realities of expansions of Waters of the US beyond navigable waters. If, as I
believe, the States do not allocate additional funds to expand their surface
water monitoring, then States face a choice:
- Continue monitoring
the same stations as before Waters of the US designation is expanded.
- Expand the spatial extent of water quality monitoring to smaller waterbodies
So what do I recommend as a strategy
for the environmental community? The expansion beyond navigable waters should
be based on scientific justification for surface water quality standards and
hence protection for these waters. Thus it is essential that a compelling case
be made to the States to increase their water quality monitoring budgets to
expand the spatial extent beyond navigable waters. As someone who is supportive
of surface water quality protection, I understand the merits of expanding regulated
waters, but only if this is undertaken with an analysis of the implications of
this expansion on regulatory monitoring by the States.
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