By Alexander Gordon of Aon Risk Solutions
The contemporary philosopher Slavoj Žižek has suggested the toilet as an exemplary metaphor for today’s environmental challenges: when we flush a toilet, excrement disappears from our world —though rationally we know the waste is traveling through pipes, treatment facilities, and so on— at the level of our most basic experience it has entirely vanished. The problem, as Žižek explains, is that excrement, like industrial waste and the other harmful market externalities, does not actually vanish. To what, then, do we owe this bizarre feeling, the sense that what vanishes in the whirlpool of a toilet drain somehow travels to another order of reality? The answer is simple, though rarely acknowledged: the Clean Water Act of 1972. While today, swimming contests are held around Manhattan Island and waterfront property is prized across the country, for those Americans strolling the Hudson River forty years ago, the mystery of the toilet bowl was hardly a secret. That is, before the Clean Water Act freed up major public financing to create municipal sewage treatment facilities, raw sewage was just another elementary, albeit inglorious encounter. In a time of endless legal revision and environmental reform –when the list of regulated water pollutants and potential liabilities can balloon overnight– without careful management and foresight, penalties for water contamination, like sewage of the past, can quickly become an equally routine and painful encounter.
As the Clean Water Act (CWA) celebrated its 40th anniversary this past October, we offer a forecast of regulatory actions under the CWA at least for the next four years of Obama’s second term. As the federal government struggles to clean up an estimated one-third of American waters that continue to fail to meet the CWA’s swimming and fishing standards new regulatory targets like construction site effluent, hydro-fracturing fluids, and agricultural runoff are emerging as priorities for the EPA. The past four years have seen the jurisdictional reach of the hand of the EPA expand with respect to the CWA as highlighted by the clarification of what constitutes the “waters of the United States” (i.e., recent guidance reaffirming that protection under the CWA extends to small waters that feed into larger bodies of water through any “hydrological connection”.)
Other recent efforts by the Obama Administration that are expected to continue include:
These efforts underscore the Obama Administration’s commitment to maintaining strong and clear standards for water protection, and suggest more rules through the CWA to come over the next four years.
For example, stormwater regulation is likely to be one of the priority areas where new rules are likely to emerge. In February of 2012, the EPA issued the final version of its new ‘Construction General Permit’, which requires construction companies to follow increasingly stringent effluent limitations when seeking permits to discharge stormwater from work sites. Contractors and other businesses involved in construction can expect an uptick in new litigation related to stormwater issues. The EPA is also looking at expanding stormwater rules for developed, re-developed, or post-construction sites, including shopping centers, residential subdivisions, roadways, and industrial facilities.
Hydraulic fracturing operations have continued to be a focus of the media and enhanced controls over wastewater from these operations under the CWA’s National Pollutant Discharge Elimination System (NPDES) have already emerged as a controversial test for Obama’s second term. Currently, the EPA is conducting extensive research on hydro-fracturing fluid discharges, with new rules expected in 2014. While the Administration appears firmly committed to the expanding role of shale gas as a central part of our energy mix, the push to create a stronger federal permitting system for wastewater disposal seems likely.
Finally, there is growing pressure to extend CWA jurisdiction over agricultural pollution discharges into public waterways. Nutrient pollution from agricultural and livestock activity continues to escalate, leading to deadly algal blooms across many of America’s major rivers and tributaries. Industrial agriculture operations should expect a budding regulatory attention, as the Administration seeks to rein in one of the largest sources of water pollution.
Forty years later the Clean Water Act remains a cornerstone of environmental legislation with its ideal of a country made safe for swimming and fishing. As the Obama’s Administration moves into its second term and a new environmental leadership regime begins to takes shape, it is critical that the affected business community which, spans a gamut of industries including agriculture, construction, municipalities and real estate, takes a closer look at the impact of their current and prior business operations upon our nation’s water systems. At Aon, we have the expertise, experience, and resources to assist our partners and clients in identifying and managing these risks. We know that even for the most competent risk managers and business executives, the shifting landscape of environmental compliance can sometimes feel like a vanishing horizon on the path towards a more resilient and secure future. While we can not see the future, we believe that in a world in which nothing truly disappears, the task of knowing environmental risk – regulatory, hydrological, or otherwise– is one to which Aon can offer meaningful risk management solutions.