Regulations

A. Endangered Species

The Endangered Species Act (ESA) was passed in 1973, and it remains the primary legal tool the federal government can use to protect and conserve threatened and endangered species in the United States (U.S.C.A § 1531(b) (2003)). The application of the ESA is triggered when a species is listed as threatened or endangered under section 4 of the Act (U.S.C.A § 1531(b) (2003)). The government can list species as endangered or threatened by using “the best scientific and commercial data available.” ((U.S.C.A § 1531(b) (2003)).

The U.S. Fish and Wildlife Service (FWS) compile a list of all endangered species and recovery reports for all endangered or threatened species (Latios, 2002). The Tan Riffleshell mussel, for example, was listed as endangered on October 22, 1984 (U.S. FWS, 2012). The report indicated that this subspecies was recently determined to actually represent two taxa. One of which is essentially restricted to the Upper Clinch River system (Indian Creek), VA (U.S. FWS, 2012).

The Clinch River contains approximately 45 mussel species and 79 species of fish (Kilgore, 47). Several species of mussels are found in the Clinch River and nowhere else on the planet (Kilgore, 42). This ecosystem is home to 29 rare mussel species and 19 rare fish species (Jones, Neves, Patterson, Good, &  DiVittorio, 1. The ESA has created a way to protect endangered species through designation of critical habitat areas. Critical habitat is an area identified for threatened and endangered species (ESA §4, U.S.C. § 1533 (2003).

B. Clean Water Act

The Clean Water Act (CWA) was originally enacted in 1972, and amended in 1977 and 1987 (33 U.S.C.A. §§1251 (2012). It requires that all U.S. streams, rivers and lakes meet certain water quality standards. The CWA set out three goals 1) the elimination of the “discharge of pollutants into navigable waters” by 1985; 2) the establishment of waters with quality sufficiently high to be both “fishable and swimmable” by 1983; and 3) the end of “discharges of toxic pollutants in toxic amount.” (33 U.S.C.A. §§1251 (2012). The Environmental Protection Agency (EPA) is charged with setting effluent limits for each type of point source based upon available technologies for each industry (Salzman & Thompson, Jr., 152).  States are to set ambient water quality standards to be met within the receiving waters. Dischargers must obtain a federal permit, from either EPA, or states, which have been delegated federal permitting authority. The National Pollutant Discharge Elimination System (NPDES) reflects both technology-based and water quality-based standards (Latios, 89). NPDES must ensure that the discharger’s effluent does not exceed these standards, ensure sufficient monitory, and statutory deadlines for compliance are met (Latios, 89). The NPDES permit is generally good for five years (Salzman & Thompson, Jr., 153). Virginia has successfully operated a state discharge permit program since 1946 (Va. Dep’t of Envt’l. Quality, 274). In April 1975, Virginia received the authority to administer the NPDES program as the VPDES permit program (Va. Dep’t of Envt’l. Quality, 274). Control measures recommended in the plans are implemented through the VPDES permit system for point sources and through the application of Best Management Practices (BMPs) for nonpoint sources (Va. Dep’t of Envt’l. Quality, 279).

The EPA and the Virginia Department of Environmental Quality (DEQ) set state limits (Kilgore, 33). In 1997, the Virginia General Assembly enacted the Water Quality Monitoring, Information, and Restoration Act, §62.1-44.19:4 through 19:8 of the Code of Virginia (Va. Dep’t of Envt’l. Quality, at 274). This statute directs DEQ to develop a list of impaired waters and develop TMDLs and implementation plans for the TMDLs. Water quality standards are regulated under §303 of CWA, which require the states conduct monitoring to identify waters that are polluted or do not otherwise meet standards (Va. Dep’t of Envt’l. Quality, at 279). Virginia has found that many stream segments do not meet state water quality standards for protection of the six designate uses: recreation/swimming, aquatic life, wildlife, fish consumption, shellfish consumption, and public water supply (drinking) (Va. Dep’t of Envt’l. Quality, 2012).

In Virginia, DEQ uses Water Quality Management Plans (WQMPs), required by section 303(e) of the Clean Water Act, as the link between the water quality assessment required for this report and water quality based controls (Va. Dep’t of Envt’l. Quality, at 279). When a water body fails to meet standards, it is “listed” in the current Section 303(d) report as requiring a Total Maximum Daily Load ((Va. Dep’t of Envt’l. Quality, at 279). Since 1998, DEQ has developed plans, with public input, to restore and maintain the water quality for the impaired waters (Va. Dep’t of Envt’l. Quality, 2012). These plans are called "total maximum daily loads," or TMDLs. The TMDL is a pollution budget that determines the amount of pollutant the water body can receive in a given period of time and still meet the intended standard ( MapTech, 2012). In order to develop a TMDL, background concentrations, point source loadings, and nonpoint source loadings are considered (MapTech, xix). The TMDL report details the pollutant responsible for the violations, and the suspected cause and source of the pollutant (MapTech, xix). Only by controlling both sources of pollutants can water quality be restored to the affected water bodies. Section 303(d) of the CWA and the U.S. Environmental Protection Agency’s (EPA) Water Quality Management and Planning Regulation (40 CFR Part 130) both require that states develop a TMDL for each pollutant (Va. Dep’t of Envt’l. Quality, 279).

Once a TMDL is developed and approved by EPA, the next step will be development of a TMDL implementation plan (IP), required by Virginia’s 1997 Water Quality Monitoring, Information and Restoration Act (WQMIRA) (Va. Dep’t of Envt’l. Quality, 274). The TMDL Implementation Plan (IP) describes control measures, which can include the use of better treatment technology and the installation of best management practices (BMPs), which should be implemented in a staged process. The final step is to implement the TMDL IPs and to monitor stream water quality to determine if water quality standards are being attained. Once a TMDL IP is developed, DEQ will take the plan to the State Water Control Board (SWCB) for approval for implementing the pollutant allocations and reductions contained in the TMDL (Va. Dep’t of Envt’l. Quality, 279). With successful completion of implementation plans, Virginia begins the process of restoring impaired waters and enhancing the value of this important resource (MapTech, xxvi).

The CWA leaves the regulation of nonpoint pollution up to individual states. In 1987 the CWA added section 319, which requires states to implement a “nonpoint source management program” (Salzman & Thompson, Jr., 162). Nonpoint sources must use best management practices. Congress does not authorize the EPA to impose a management plan on any state and therefore the section lacks any bite(Salzman & Thompson, Jr., 162). For many years, DEQ’s pollution reduction efforts were focused on the treated effluent discharged into Virginia’s waters via the VPDES permit process. The TMDL process has expanded the focus of DEQ’s pollution reduction efforts from WTP’s and point sources to the other pollutant sources causing impairments of the streams, lakes, and estuaries (Va. Dep’t of Envt’l. Quality, at 279). In TMDL Implementation Plans, the reduction tools are being expanded from the permit process to include a variety of voluntary non-point source strategies and BMPs to address load and waste load reductions (Va. Dep’t of Envt’l. Quality, at 279).