The former head of the Division of Water in the state Department of Natural Resources said rollbacks of clean water regulations in Gov. Scott Walker’s proposed budget could put the state in violation of federal laws.
Walker has proposed reducing standards for phosphorus which were set in a rule passed by the Natural Resources Board last year. His budget also includes a plan to eliminate municipal stormwater standards that regulate pollutants running off streets, parking lots and other urban surfaces.
But Todd Ambs, who until last year was chief of the DNR’s water division, said such changes could put the state in violation of the federal Clean Water Act as well as the Great Lakes Initiative, which sets standards for a number of pollutants, including phosphorus, and was approved by the Environmental Protection Agency in 1995.
"It’s a huge step backwards," said Ambs, who is now president of the River Network, a national environmental organization.
At issue, primarily, are rules that were passed by the Natural Resources Board and approved by the EPA last year that set a numerical standard for how much phosphorus can be in the state’s lakes and streams. Phosphorus is a nutrient found in fertilizers and fuels the growth of weeds and toxic blue-green algae in the state’s waters. The new rules were described as among the most important water regulations since the federal Clean Water Act.
Walker’s budget would eliminate the new statewide numeric phosphorus standard for municipalities and businesses and replace it with standards no more stringent than neighboring states. According to Bruce Baker, the current director of the DNR’s water division, Walker would replace numeric standards with so-called narrative standards, which are basically descriptions of what a particular body of water looks like.
Baker said Walker’s intent is to set standards that do not put Wisconsin at an economic disadvantage with nearby states.
Cullen Werwie, a Walker spokesman, said the changes being sought by the Governor would not put the state in violation of any federal clean water laws. Werwie did not elaborate. Officials with the EPA also refused comment.
Ambs, while at the DNR, helped write the new phosphorus rule and was deeply involved in negotiations with the EPA on setting Wisconsin’s new standards. He said the federal agency is requiring all states to set such standards to meet requirements of the federal Clean Water Act. When the EPA approved Wisconsin’s new rule last year, the standards in essence became federal standards.
While Ambs said the budget language is confusing, the intent of the phosphorus rule proposal seems to be to repeal and rewrite the rule. But doing that, he said, would put the state in violation of what is now a federal standard and the Clean Water Act.
"That standard was approved by the EPA as the regulation to work with as far as Wisconsin water is concerned," Ambs said. "A state agency can’t invalidate an imposed standard that has been approved by the EPA."
Others who have studied the budget agree. Melissa Mallott, water program director for the environmental group Clean Wisconsin said that, according to her reading of Walker’s revision of the phosphorus rule, the changes would put the state in violation of the federal Clean Water Act.
Also, Ambs said, changing the standard from a numerical standard — a specific measurement of phosphorus in Wisconsin waters — to a more vague narrative standard will make the law difficult to enforce.
"Narrative standards do not get enforced," Ambs said. "They’re a joke. When I was at the DNR I was quite up front in telling people that when it comes to enforcement, narrative standards just don’t work very well."
What might happen if the new numeric standard is eliminated under the Walker budget? Ambs cited an April 30, 2010, letter in which Peter Silva, assistant administrator of the federal agency, warned the DNR that the EPA would step in to set and enforce its own numeric standard if Wisconsin did not set its own.
The letter also warned that the state, in creating a regulation, should not interfere with the federal Clean Water Act.
Were the EPA to find Wisconsin in violation of the Clean Water Act, Ambs said, other possible actions against the state might include the federal agency taking over all or part of the permit program, which would mean the agency could both conduct its own review of discharge permit applications and carry out its own tougher enforcement actions against violators.
Ambs said the Walker budget also eliminates another, older phosphorus standard that regulates the amount of the nutrient that can be discharged by municipalities or businesses. He said that limit was set in 1995 under an agreement between Great Lakes states and the EPA called the Great Lakes Initiative. Elimination of the standard, Ambs said, would also violate federal law.
In other budget language, Walker would entirely repeal urban stormwater standards, also placing the state in potential violation of federal water laws which require such standards.
"An important question," Ambs said, "would be why are we doing this? The No. 1 water quality problem in the state is polluted runoff. And one of the biggest sources of that is urban runoff."
Ambs also said it is ironic that Walker spoke in support of Wisconsin tourism this week when his budget would roll back important environmental protections that would keep the state’s lakes clean.
"I absolutely believe that not having regulations like these will ultimately cost us jobs in the state," Ambs said. "There is a reason why people in Illinois call Wisconsin their favorite state park."