With all the recent “news” about rogue regulators and heavy-handed enforcement, though, it’s a good time to review some basic principles and emerging opportunities to make environmental progress, while minimizing politicized extremes.

For starters: Enforcement is a bedrock principle of environmental law. If it’s nonexistent, inconsistent, unclear or simply unfair, it unravels the regulatory fabric, leaving good actors frustrated, the public angry, and ecosystems and communities at risk. Enforcement done right serves as a powerful deterrent to those who contemplate short-cuts or bad acts.

Second: Compliance assistance should be the first step and enforcement the last resort. That doesn’t mean “no enforcement” or “weak enforcement” either. It’s a sequence of events, a hierarchy of actions designed to instill a culture of collaboration and compliance.  Surprise inspections add value but should be selected carefully and fairly. There should be incentives for third-party audits and self-disclosures of violations that are corrected. Agencies that strive to measure environmental outcomes, rather than just penalty beans, can instill public trust and dispel accusations of playing “gotcha!”.

Third:  Intent and process matter. Statutes and regulations spell out the various states of mind for culpability and criminal intent. For many environmental laws, a non-criminal defendant’s conduct is judged under “strict liability” standards rather than negligence or gross negligence. This means you’re liable if you violate the law, whether or not you made a good faith effort or even a college try to comply. That bright-line approach works well if the enforcers work extra hard in the subsequent damages phase to review the circumstances such as the gravity of the offense, efforts to comply, and economic benefit to and environmental track record of the violator.

It gets trickier in certain areas, such as stormwater and wetlands regulation under the Clean Water Act. Municipal stormwater dischargers have to reduce pollutants to the “maximum extent practicable”. That’s an important duty but not a clear standard all the time and the requirements to reduce such pollution and monitor results can add significantly to a community’s expenses. Permits for discharges of dredged or fill material into wetlands and other waters of the U.S. also lead to controversy as agency jurisdiction isn’t always clear, to put it mildly, and decisions about “practicable alternatives,” “unavoidable impacts,” and compensatory mitigation are often close calls.

Process is especially important when defendants, whether multi-national corporations or individual homeowners, dispute an agency’s jurisdictional reach.

As EPA knows, finding the right balance in this area is hard.  The 2012 Supreme Court case,  Sackett vs. EPA, involving an Idaho homeowner and a regional EPA’s compliance order, underscores the difficulty but also the need for the agency to broaden its view of administrative warning notices and opportunities for defendants to appeal without too much delay waiting for his or her day in court. The stakes can be high, both for the watershed which can suffer death by a thousand cuts, and the property owner who can be dragged into bankruptcy if regulatory uncertainty persists.

Fourth: Flexibility helps. Clean Water America Alliance does not support rolling back environmental standards. Increasingly, though, we see the possibility for even better results through progressive, integrated and innovative efforts, where flexibility, accountability, and mutual trust are given a chance.  Watershed-based permits, resulting from collaborative public-private partnerships, can score more points for the environment, economy, and social justice if done right and in close coordination with regulators.  That’s a major mission of our Urban Water Sustainability Council, which looks for ways to manage water more holistically and successfully.

There’s an important role for judicially enforceable consent decrees but we need to continue looking for improvements. I have personally seen these instruments drive environmental progress in cities and businesses over the last 25 years. There are growing opportunities to improve upon the look, feel, and use of these documents. Can more be done through permits rather than consent decrees and can more decrees include watershed planning and permitting concepts as was done in the case of Northern Kentucky’s Sanitary District #1 several years ago? Will we see more agreements on wet weather and green infrastructure like those reached recently in Cleveland and Philadelphia?

Also, supplemental environmental projects that have a close nexus to the type of violation involved and well-run mitigation banks that operate within the affected watershed and respect the permit sequencing process continue to offer promise, in my book.

Fifth: States can lead. More often than not, delegated state programs should take the lead on enforcement. They are the best positioned to understand the situation. It’s a bad idea, though, to preclude interstate and federal agencies, including EPA, from having any meaningful role or taking specific action, when truly needed. It’s also absolutely critical to recognize the feds do need to step in, in various ways, when interstate impacts occur and states are not able or willing to work through them. Federal intervention of sorts is even welcome at times in some cash-strapped states.

Sixth: Money matters too. With the concern over the federal deficit and dwindling budgets of environmental agencies, it does make sense for agencies to prioritize regulatory efforts and also to carefully update criteria on affordability and financial capability. EPA’s work to integrate Clean Water Act planning and permitting for wet weather, watershed scenarios makes sense.  Over time, drinking water considerations should be included. The use of penalties prompts a legitimate and long-simmering debate, as well: Should penalties be diverted from the general fund of the U.S. treasury to cover environmental cleanup projects and administrative costs of environmental agencies? Should polluters pay the general operating costs of environmental agencies in order to fill the gaps created by shrinking budgets and fund-sweeping legislatures?

Reality lies between the rhetorical extremes of crooks and nannies. Green infrastructure and holistic watershed strategies provide regulators, enforcers, and communities with opportunities to get creative and innovative. Here’s a toast to such efforts and the legitimate role enforcement can play throughout.

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As a focal point for the national dialogue on resource recovery and green infrastructure, this Leadership Conference has been driving the notion of water as an integrating strategy for the urban environment.

2012 Spotlight Cities include: Chattanooga (TN), Cleveland (OH), Denver (CO), Syracuse (NY), and Tucson (AZ).

• Spotlight City panels will feature cross-agency, cross-department, community and business leaders to share their models of creative integration and innovative approaches.
• Multi-disciplinary and geographically diverse presentations will demonstrate the flexibility of green infrastructure to serve a multitude of needs.
• Strategic Sidebar conversations will allow those at the cutting edge to compare notes and tackle obstacles.
• Roundtable discussions will shed light on emerging opportunities and challenges.

Attendees and presenters will reflect the broad scope of stakeholders needed to recreate our cities with resource recovery and green infrastructure.  Join water leaders, sustainability directors, transportation, parks and recreation officials, as well as business leaders, non-profit organizations, and U.S. EPA regulators as we drive the paradigm shift for water sustainability.

The Leadership Conference is organized annually by the Clean Water America Alliance’s Urban Water Sustainability Council.  Through this Leadership Conference the Council seeks to connect the dots among water, land use, parks, forests, transportation, energy, and other sectors around a goal of revitalizing cities with multi-benefit projects that produce triple bottom-line results. 

Cross agency interest and enthusiasm for the U.S. Water Prize was reflected in the panel of keynote speakers that included the Honorable Anne Castle, Assistant Secretary for Water and Science, U.S. Department of the Interior; Nancy Stoner, Acting Assistant Administrator for Water, U.S. Environmental Protection Agency, and; Ann Mills, Deputy Under Secretary for Natural Resources and Environment, U.S. Department of Agriculture.  The Alliance described each of the winner’s accomplishments:

Milwaukee Metropolitan Sewerage District is embracing innovation and collaboration to reduce pollution throughout the 411 square mile metropolitan watershed.  They’re pursuing a pilot project for watershed-based permitting, and possibly trading, within watersheds of two rivers, to reduce phosphorus pollution in the most effective and efficient way possible, tailoring priorities among diverse interests and stakeholders and continuing to integrate green and gray infrastructure.

Pepsico Frito-Lay is instilling a corporate culture of water conservation and re-use to save water, energy, and money. As one example, a Frito-Lay chip-making facility in Casa Grande Arizona is reducing its water footprint by cleaning and re-using process water, leaving more for citizens and ecosystems in a thirsty region. A 700,000 gallon-per-day system recycles process water and treats it to drinking water standards for various uses within the plant, saving up to 100 million gallons of fresh water per year that would otherwise be withdrawn from the region’s aquifer.

Philadelphia Water Department’s “Green City, Clean Waters” program is a national model for sustaining urban watersheds and uniting citizens and businesses. They’re committing to “greening” more than 34 percent of the combined sewer area’s impervious cover in the coming 25 years, at a total cost of over $2.4 billion. It’s winning praise from regulators, planners, and environmentalists because it embraces “triple bottom line” thinking to advance environmental, economic, and equity goals with principles of innovation, flexibility, and accountability.

Project WET Foundation has created a world-wide water web of students, teachers, trainers, and sustainers in 50 states and 56 countries, with no sign of slowing down. Educational and inspirational tools help children of all ages connect to their watersheds, see the worth of water and take action for stewardship and sustainability.

San Francisco Public Utilities Commission is taking to heart the “one water” management theme, using integration and cooperation to reduce urban stormwater problems, increase the linkages between energy and water conservation, and build public support for investments in the future, including a $5 billion sewer system improvement program. Regulatory and nonregulatory incentives, public education and workshops will help advance low impact development strategies to reduce coastal and ocean pollution and increase water and energy security.

Salmon Falls Watershed Collaborative consists of agencies and individuals who are joining forces upstream to prevent polluted runoff, conserve forests, and reduce downstream drinking water treatment costs. By connecting the dots between forests and faucets and between private lands and public benefits, this unique interstate partnership involving Maine and New Hampshire and local and federal interests protects source waters and promotes smart growth beyond the borders of political subdivisions and bureaucratic boundaries.

In its second year, the U.S. Water Prize is facilitated by the Alliance representing a broad collaboration of interests.  “The water sector is ready to elevate the discussion on water and advance the practice to the next generation,” notes Chair Dick Champion, Clean Water America Alliance.  “Proactively, these business sponsors have come together through the Alliance endowing the prestige of the U.S. Water Prize to advance the practice of the water sector.” Lead sponsors include MWH Global, Brown and Caldwell, Veolia, and CH2M HILL.  Additional sponsors include Malcolm Pirnie/ARCADIS, CDM Smith, and HDR.

Using data from Hydromet (a network of automated hydrologic and meteorological monitoring stations); the USGS Water Data; a previous study; The Water and Power Resources Service Project Data Book; Reclamation Area Office and Irrigation District records; and local staff knowledge; the study creates a preliminary picture of the potential energy that might be harnessed from Bureau of Reclamation’s water distribution projects.  The study also includes an analysis of water flows, different hydroelectric turbine types, green incentives (both federal and state issued), costs of electric transmission lines, and constraints on development regarding land use.

While Reclamation currently generates over 40 billion kilowatt hours of hydroelectric energy at existing facilities, this new study revealed that 191 water conduits, stretching across 17 western states, have potential to serve as additional sources for power generation. The study determined that 1.2 million megawatt-hours of electricity could be generated every year by simply placing a turbine in the water flowing from their assorted water conveyance systems.  This would be equivalent to the energy produced from one coal power plant.

The study serves as a guide for municipalities and private developers looking to invest in power generation from Bureau of Reclamation facilities. The results highlight particular locations that might be economically worth-while for further examination and areas that can be ruled out. The study also produced the Hydropower Assessment Tool, which helps identify hydropower potential in existing waterways. This tool is available on their website, and allows developers to use a few measurements to quickly rule out areas for incapable of producing hydroelectric power.

The Drought Monitor lists Vermont as “abnormally dry”, coincidently just six months after the state’s wettest August on record (mainly caused by the effects of Hurricane Irene). Connecticut encountered its driest January-March period ever on record according to Weather Channel meteorologist Jonathan Erdman. While water shortages are not feared in the region, other parts of the country are already facing a crisis.

The South Florida Water Management District has already issued a water shortage warning from Key West to Orlando. Georgia, considered the state suffering most, has been given the Drought Monitor’s “exceptional” and “extreme” ratings for dry conditions. Winter rains gave Eastern Texas some relief-resulting in a change from 100% drought conditions across the state to only 64% of the state. California is also bracing for a water shortage approaching. The state’s Department of Water Resources said that mountain snowpack, a major source of water, is 45% below normal for this year.

As drought conditions reduce the supply of water, the increased demand for water has been exacerbating the problem.  A study from the Scripps Institution of Oceanography gives Lake Mead, a source of water for millions in the Southwest U.S., a 50-50 chance of drying up by 2021. There is a calculated deficit of nearly 1 million acre-feet of water per year depleting the Colorado River system-the supplier of water to Lake Mead, Lake Powell, and 22 million people in the Southwest. Las Vegas, Los Angeles, and San Diego are just a few of the cities and towns that might be scrambling for an alternative water supply in the coming years.

This would not only affect water supply, but power generation as well. The study estimates that there is a 50 percent chance that reservoir levels will drop too low to generate hydroelectric power generation by 2017. The combination of drought and increased water demand will continue to pose a problem for city planners and leaders in the coming years, especially in the Southwestern U.S.

Learn more HERE.

To prevent overflow, they came up with a simple, yet elegant solution: attach a plug to a floating vinyl ball.  When the tank is at full capacity, the floating ball plugs the gutter, and redirects the excess water to an overflow gutter. Hoses running from the storage tanks are run through a filter, and then pumped to the plants. For extra environmental credit, Iowa State included a design for running these pumps with a battery charged with solar panels. In a temperate climate, their research shows that the design could gain up to half of the required water from this method. See the video of construction here.

If a building uses less than 300 gallons per day, the permit would cost $90 for the first year, and could be renewed each year for $40. An alternative permit would be for buildings that use up to 1,200 gallons per day. This permit would cost $584 the first year, and then have a $50 renewal fee each year. The owner of a building using more than 1,200 gallons will have to apply for an individual permit, have it reviewed by DEQ, and hold a 30-day public comment period. The cost for this individual permit will vary by the size and complexity of the reuse system.

These new permits will allow consumers to reduce their water consumption and keep money in their pockets.  Since home water use tends to split evenly between inside and outside use, consumers can now take the water they use inside, and reuse it for outside uses such as watering a garden or washing a car. This reuse will also help manage stormwater runoff in large cities like Portland.

U.S. Department of Agriculture (USDA) recognizes this and its “Forests to Faucets” project, is doing something about it. They’re using GIS to model and map land areas most important to surface drinking water and exploring the role forests play in protecting these areas and the extent of threat from development, insects, disease, and fire. The data can help shape state forest conservation plans, identify areas where a “payment for watershed services” project may be an option for financing conservation work, and show the link between forests and the provision of surface drinking water.

It’s all important, urgent work:  USDA notes about 53% of the nation’s water supply originates on forest land and that within the next 25 years 44.2 million acres of private forests in the U.S. will be at risk of conversion to developed uses.

One of the best known examples of the tree-to-tap connection is in the New York City (NYC) watershed. NYC has protected more than 35% of the watershed. Just ask Carter Strickland, the NYC Department of Environmental Protection Commissioner, whether it’s been worthwhile. He’ll tell you NYC not only protects important areas upstream but avoids the need for building multi-billion dollar water filtration plants downstream.  It’s all made possible because of the high quality habitat conservation and pollution prevention projects upstream, which the U.S. Environmental Protection Agency (EPA) continues to review and approve under its Safe Drinking Water Act filtration avoidance regulations.

A great example of interstate collaboration for source water protection has emerged in the Salmon Falls River Watershed of Maine and New Hampshire. In 2010, a Salmon Falls Watershed Collaborative was launched to protect water quality from development-related threats.  Federal and state agencies and individuals are now joining forces upstream to prevent polluted runoff, conserve forests, and reduce downstream drinking water treatment costs. As EPA and Natural Resources Conservation Service (NRCS) would tell you, connecting the dots between forests and faucets and between private lands and public benefits protects source waters and promotes smart growth beyond the borders of political subdivisions and bureaucratic boundaries. Persistence and sweat equity pay off. On April 23, Andy Tolman from the Maine drinking water program and Paul Suska from the New Hampshire drinking water program accepted the 2012 U.S. Water Prize on behalf of the Collaborative and its members who range from the Piscataqua Region Estuaries Partnership to local and state organizations.

The Salmon Falls project is just one of the efforts supported by the Source Water Collaborative, a national partnership established in 2006. 23 partners, from EPA to state agencies and local planning organizations and NGOs, work together and share strategies for protecting the areas “where safe water begins”.

Wetlands, like forests, can perform an amazing array of services for ecosystems and economies. Filtering future drinking water is just one of them. Keep that in mind as you celebrate “American Wetlands Month” in May. EPA and governmental and nongovernmental partners first designated the month in 1991 to celebrate the vital importance of wetlands to the nation’s ecological, economic, and social health. I’m betting more people know February is American Heart Month and April is National Poetry Month but the wetlands education cause is just as important to our health and well-being.

Tapping into the land and water nexus can mean several things on the national policy level, from funding the Farm Bill’s conservation programs that benefit forests, to supporting the Land and Water Conservation Fund, including the proposed use of competitive grants to spur innovation and public private partnerships, to implementing EPA’s Green Infrastructure Strategy, which includes cross-cutting research to Clean Water Act and Safe Drinking Water Act program activities. It should also include a national commitment to the science, policy, and art of understanding ecosystem services. Agencies, universities, NGOs, and private sector experts are pouring millions of hours and dollars into the worthwhile effort.

Aldo Leopold’s 1949 environmental classic, Sand County Almanac, described the need for a “land ethic”–to conserve and protect the land rather than simply view it as a means to get rich. A “wet land ethic” is needed, as well, to connect tree tops and water drops, wetlands and water plants. How we manage the land matters for water.