Politics is local, climate damage is regional: a novel conundrum for allocating federal resources to protect infrastructure and water quality (Sept. 2022)
Global warming is increasing atmospheric moisture and melting Arctic ice. Both phenomena create unprecedented excess water in many regions. In 2022 there were five domestic “one in 1,000 years” storms, swollen rivers drowning towns from Germany to Kentucky, and faster than expected melting Arctic ice locking in future sea level rise. In addition to community and infrastructure damage, this excessive water threatens public health from exposure to toxic flood water mixtures, additional pollutants to waterways, and damaged drinking water supplies. Excessive water that washes pollutants from industrial sites, developed areas, streets, landfills, and agricultural fields is called nonpoint pollution. A solution to both physical water damage and nonpoint pollution involves slowing, storing, and absorbing water before damage occurs. State and local entities have largely exclusive authority to shape flood-resilient landscapes and reduce nonpoint pollution under the Clean Water Act (CWA).
The phrase “all politics is local” commonly characterizes domestic politics. Politics at the state and local levels are often driven by economic development, whether competing for new jobs or adding development tax revenue. Given this orientation, politicians reluctantly impose new land requirements or invest in existing infrastructure. Even with a large percentage of the domestic population experiencing excess water and other climate damage, state/local entities overwhelmingly use their unique land use authorities to accommodate future development (e.g., elevating buildings in floodplains) rather than enacting measures to mitigate hazards or channel development away from risk areas. Sarah J. Adams-Schoen, Michigan Journal of Environmental and Administrative Law, Beyond Localism: Harnessing State Adaptation Lawmaking to Facilitate Local Climate Resilience, Vol. 8, Issue 1 (2018). How can the federal government leverage funding discretion and CWA authorities to encourage supportive state/local action to protect infrastructure, public health, and the environment from climate changes?
Good news: In the last year, the Biden administration enacted legislation creating significant financial capacity to reduce global warming greenhouse gases (GHGs) and fund resilient infrastructure. With the passage of the recent Inflation Reduction Act (IRA) and 2021 Infrastructure Investment and Jobs Act (IIJA), the Biden administration has enacted more climate-related mitigation and resilience legislation than any previous administration. Bad news: Even if the United States meets its GHG reduction target, there is little evidence that all countries can collectively meet the Paris Climate Agreement GHG target. Thus, today’s extreme weather will be the norm, threatening environmental standards and living conditions. Can this new funding help overcome spotty state cooperation in enacting critical landscape changes to handle damaging and polluting water?
On the federal level the Biden administration has quickly mobilized agencies-- passing Executive Orders to focus domestic policy on combating global warming, protecting vulnerable communities, and creating climate-related data/tools. These actions are extensively documented in “Building Climate Resilient Communities for All: Suggested Next Steps for Federal Action in the US”, Nicholas Institute for Environmental Policy Solutions, Duke University, July 2022. However, further action is needed to develop criteria for allocating infrastructure and pre-disaster resilience funding. These criteria can foster more state/local cooperation in controlling key components for successful climate-related solutions, such as stormwater management, building codes, zoning for development, water usage, and septic systems. These components are critical for adapting to this wet normal.
Results from past climate adaptation efforts are not promising. In a pioneering study analyzing 1,682 academic articles, adaptation efforts were largely fragmented, local, and incremental, with limited evidence of transformational adaptation and negligible evidence of risk reduction outcomes. Berrang-Ford, et al., “A systematic global stocktake of evidence on human adaptation to climate change”, Nat. Clim. Chang. 11, 989-1000 (2021). http://doi.org/10.1038/s41558-021-01170-y. Similarly, the 2022 Intergovernmental Panel on Climate Change concluded current adaptation efforts as incremental and inadequate to address necessary coordinated efforts to reduce climate risks.
Congress recognizes the importance of cross-jurisdictional coordination for adequately scaled regional activity. In 2021 Congress amended the Stafford Act to create a hazard mitigation revolving loan program, entitled Safeguarding Tomorrow through Ongoing Risk Mitigation (STORM) Act. The STORM Act increases capitalization loans for regional resilience activity that reduces damage to natural and built infrastructure. The STORM Act incentivizes local governments to pursue larger projects that cross jurisdictional boundaries for more impactful regional-scale risk minimization, especially land use controls. The projects must include “the systematic and regional approach to achieve resilience in a vulnerable area…” Sec. 205 (b)(1)(E). The IIJA specifically allocates $50B for resilient water system projects, including encouraging integrated and regional approaches. In addition, Congress included general language in the IIJA specifying “resilience” for the $1.2T funding for infrastructure. However, the Act and current guidance does not incorporate resilience requirements for design or assessing climate risk for infrastructure investment.
Whether Congress’s resiliency objective translates into more state partnerships to protect infrastructure investments remains uncertain. Additional agency funding criteria can encourage state/local governments to partner with other jurisdictions and create resilient landscapes to protect infrastructure and provide environmental benefits. This is especially important for infrastructure incorporating cost-effective nature-based technologies that generally involve landscape change.
Climate change will continue exacerbating the largest remaining contributor to degrading water quality, nonpoint pollution. State action is increasingly critical to achieving and maintaining water quality standards. The CWA structure is largely focused on discrete water discharges from facilities (point sources) and mobile sources, leaving states to control nonpoint pollution emanating from local landscapes, such as nutrient runoff from agriculture, pollutants flushed by stormwater, and contamination of groundwater and aquifers. EPA has CWA funding and legal authorities to prod states to manage water that would protect water quality and reduce physical damage.
States have been reluctant to impose land use restrictions on property owners. EPA has traditionally been deferential to state entities because they share many responsibilities in implementing the CWA. However, new water flows make state cooperation critical to protect water quality standards. Excessive water from stormwater, swollen rivers, and coastal storms/sea level rise impacts infrastructure and water quality. Nationwide, urban stormwater alone is estimated to be the primary reason for failure to meet water quality standards in 13 percent of rivers, 18 percent of lakes, and 32 percent of estuaries. National Academy of Sciences, “Report in Brief: Urban Stormwater Management in the United States”, 2009. If rural areas were included along with updated rainfall data, the percentages would be much higher. However, state cooperation to regulate nonpoint pollution is increasingly inadequate. Often citizen suits have been necessary to encourage states to fulfill their role in the CWA’s collaborative federalism framework. EPA has state revolving loan funding capacity to support state nonpoint pollution control programs. Sec. 319, CWA. However, EPA likely needs to more aggressively utilize all CWA authorities to overcome existing state reluctance to control nonpoint pollution. Examples of EPA prodding authorities include:
1. Use existing point source authorities in ways that offer permittees cost-effective land use alternatives to comply with the CWA. EPA can reopen CWA facility permits to further reduce pollutants threatening water quality standards, for example, temperature, pH, and nitrogen. EPA can then allow facilities to negotiate alternative compliance strategies with local authorities and/or private parties to implement land use features, such as buffers to slow, store, and absorb water flows, that can achieve the same water quality objective.
2. Reopen wastewater utility permits and consent decrees to reduce illegal sewer overflows. Most utility CWA permits and consent decrees are based on outdated stormwater data resulting in more frequent permit noncompliance, including sewer discharges before treatment. There are new technologies to remotely control sewer collection systems and prevent stormwater from causing illegal sewer discharges. Several utilities are implementing compliance plans that involve partnering with local governments and/or private parties to cost efficiently use such digital and land use technologies (frequently called green infrastructure). Arthur Smith, “Climate Change Impact on Sewer Overflow Litigation: A Spark for Sustainability and Justice”, American Bar Association, Natural Resources & Environmental Journal, Sept. 2021.
3. Expand testing and scrutiny of required state-impaired water determinations, including enforcing state progress in meeting plan deadlines. Section 303(d) of the CWA requires states to designate impaired waters (not meeting water quality standards) and develop Total Maximum Daily Loads (TMDL) for point and nonpoint sources. EPA either approves or disapproves TMDLs. If EPA disapproves the TMDL or if a state fails to develop an adequate TMDL, EPA has a nondiscretionary duty to develop a plan. Columbia Riverkeeper, et al. v. Andrew Wheeler, 944 F.3rd 1204 (9th Cir.2019).
4. Control facilities and activity releasing unregulated contaminated stormwater. The CWA allows EPA to regulate some stormwater discharges to federal waters, primarily within municipal separate sewer areas. However, the CWA scheme largely leaves the states the ability to reduce nonpoint and ground water contamination from additional sources and activities. EPA can more aggressively inspect and enforce its limited role. EPA can also require permits for additional stormwater dischargers contributing to violations to water quality standards under the “residual designation authority” in the CWA. Although EPA has rarely used this authority, citizen suits prompted courts in California and Maryland to require EPA to expand regulated dischargers. Los Angeles Waterkeeper v. Pruitt, 320 F.Supp.3rd 1121 (C.D. Cal. 2018).
State reluctance to make resiliency-related landscapes creates an allocation conundrum because these land changes are essential to protect infrastructure, communities, and water quality. With new funding capacity, federal agencies should develop funding criteria that optimize the physical integrity of funded infrastructure and energy facilities, especially from predictable water damage. Strategic funding criteria reducing climate risk to potential infrastructure (the carrot) can help overcome state/local reluctance to create resilient landscapes. The CWA requires states to control excess water threatening water quality standards. EPA can require states to meet their nonpoint pollution control responsibilities (the stick). Present day regional climate damage is altering decision making on how and where to invest in infrastructure and how to hold states accountable for meeting Congressionally required nonpoint pollution responsibilities in the CWA. To do otherwise would reverse progress toward clean water, fund climate-vulnerable infrastructure, and continue unsustainable disaster relief spending. Multiple agencies should use this funding to integrate all available carrots and sticks to invest wisely for future generations to realistically confront climate changes.