Implementation of Section 208 In Finally Underway: Environmental Law Institute Will Assist by Preparing Handbook for Designated Agencies

[6 ELR 10039]

The Environmental Protection Agency recently awarded the Environmental Law Institute an eight-month contract to prepare a handbook which will assist local governmental bodies known as "208 planning agencies" in the design of regulatory programs for the control of water pollution. The handbook will focus on the legal and institutional aspects of programs regulating water pollution and will supplement other EPA technical studies.

Section 208¹ is the most significant of several planning requirements in the Federal Water Pollution Control Act Amendments of 1972 (the Act).² It provides for designation of state and local government agencies to do areawide waste treatment planning and management, including developing procedures for control of nonpoint sources of pollution, such as erosion, construction and agriculturally related run-off. Section 208 is the only provision in the Act that deals directly with these important sources of water pollution.

The planning process, as designed by Congress, was intended to precede issuance of point-source discharge permits and award of construction grants for sewage treatment works.³ Unfortunately, implementation of the Section 208 planning process is only now getting underway: in the current fiscal year (FY 1976), EPA dispensed $163 million to 149 areawide planning agencies; in the previous year, the comparable figures were $13 million to 11 agencies.⁴

Summary of Planning Process

To understand the role of the ELI handbook, it is necessary to describe the complex and ambitious planning process and structure contemplated by the Act. According to EPA's interpretation, selection of appropriate planning agencies and boundaries for planning regions is the responsibility of the Governor in each state, subject to the approval of the EPA Regional Administrator. EPA regulations specify⁵ that to qualify, § 208 planning agencies must:

include selected officials of local governments in the designated area;

possess planning jurisdiction for the area;

have the capability to begin the planning process within a year after designation;

bring the plan to completion no later than two years after the process is in operation; and

have extablished procedures for adoption and review of plans, including mechanisms for public participation.

For those parts of a state where no areawide planning agency has been designated, responsibility rests with the state itself.⁶ EPA regulations also indicate that preference for designation is to be given to areas of urban-industrial concentration.

After designation, § 208 planning agencies are eligible for federal funding for up to 75 percent of the cost of planning. In return, they must produce a planning program that provides for:

treatment works necessary to meet anticipated municipal and industrial waste treatment needs for a 20 year period with provision for annual updating;

construction priorities for such treatment works with time schedules for initiation and completion;

a regulatory program to 1) control or treat all point and nonpoint pollution sources, including in place or accumulated pollution sources; 2) control the location, modification, and construction of any facilities within the area; and 3) assure that industrial or commercial waste discharges into any publicly owned treatment works meet applicable pretreatment requirements;

measures necessary to execute the plan (including financing), the time required, costs and its economic and environmental impact upon the residents of the area;

a process to identify agriculturally, silviculturally, mine and construction related nonpoint sources of pollution, and proposed procedures and methods (including [6 ELR 10040] land-use requirements) to control such sources;

a process to 1) identify salt water intrusion into rivers, lakes and estuaries, and 2) proposed procedures and methods to control such intrusion;

a process to control the disposition of all residual waste generated which could affect water quality; and

a process to control the disposal of pollutants on land or in subsurface excavations to protect ground and surface water quality.

After approval by the Governor and EPA Regional Administrator, the § 208 plan is to guide EPA's construction grant program for municipal treatment works and the permit program for point source discharges; approval of construction grants and discharge permits is expressly contingent upon their conformity with the plan.⁷

Once the initial plan is completed, one or more "management agencies" are to be designated to implement the plan. Management agencies also must satisfy several criteria listed in the Act. They must be able to carry out the management plan; design, construct, and manage waste treatment works; raise revenues and incur indebtedness; assure that communities participating in waste treatment management pay their proportionate share of treatment costs; and refuse to receive wastes from municipalities which fail to comply with any provisions of an approved plan.

The Environmental Law Institute's Contribution

The Environmental Law Institute's handbook will offer examples of a variety of documented control techniques for the most difficult pollution problems required to be covered by the § 208 planning process. Obviously, differences in the source of pollution problems and the legal/political environment across the country make it impossible to recommend a single most desirable solution for each water pollution problem. For example, the variety of powers available to different municipalities through state constitutions, home rule statutes, and traditional police powers are difficult even to categorize, and such laws can be crucial to the development of numerous types of land use controls needed for § 208 planning.⁸ EPA has recognized these differences in state needs by making provision for early negotiation between EPA and each state to determine the appropriate level of detail to be included for each pollution problem in each of its planning areas.

In recognition of the differences between states, the ELI handbook will provide thoroughly evaluated criteria to guide each planning agency's selection of particular control strategies. In addition to legal issues such as the scope of various state municipal regulatory and taking powers, tentative criteria include effectiveness in achieving the desired improvement in water quality, ease and cost of administration, procedural due process considerations, enforceability, flexibility, compatibility with long-range planning, and political acceptability.

Another subject to be explored by the Institute is the choice of the appropriate governmental entity to enact and administer controls.⁹ Section 208 calls for areawide management planning, but many controls are more logically implemented at the state or local level. For example, nonpoint pollution problems, such as agricultural run-off, are appropriate for state-wide solution, whereas construction controls are often ideally the province of county or municipal governments. In many cases, the best strategy may be a combined approach using different levels of government for different functions, e.g., state government for technical standard setting and local government for administration and enforcement.

The handbook will attempt to be responsive to the priorities of § 208 planning agencies by emphasizing those problems which states identified as most important in their applications for designation. Agriculture, construction, septic fields, and urban storm drainage are among the most likely issues for consideration. For these issues, the Institute plans to identify and analyze in depth approximately 25 statutes and ordinances that appear to embody the most feasible solutions to particular problems. The number of approaches covered in the study will be broadened by including laws that have already been subjected to thorough analysis elsewhere and found to be meritorious.¹⁰

Edward Selig, a Boston attorney and consultant to several § 208 agencies, will serve as Project Director. Institute staff for the project are attorneys Eve Endicott and Alan Miller, and research assistant Janet Coffin. Interested persons are invited to send comments or suggestions to the Section 208 Project, Environmental Law Institute, 1346 Connecticut Ave., N.W., Suite 620, Washington, D.C. 20036.

1. 33 U.S.C. § 1288, ELR 41108-09.

2. Other primary planning provisions are contained in § 106, which requires state program plans defining annual state water pollution control objectives; § 201, which requires planning for sewage treatment construction grants; and § 303(e), which requires continuous state planning for each river basin. The latter section was combined with § 208 in the most recent EPA regulations to establish a "single Statewide process that fulfills all applicable requirements for water quality management planning and implementation under the Act." 40 Fed. Reg. 55334, 55335 (Nov. 28, 1975), amending 40 C.F.R. part 130, ELR 46341.

3. Section 208 provided for publication of implementing regulations within 90 days of the enactment of the Act, identification of § 208 agencies within 60 days after that, an operating planning process within a year after designation, and a state certified plan not later than two years after the planning process is in operation. In other words, plans were to have been completed by mid-1976. The current EPA timetable calls for submission of certified plans by November 1, 1978. 40 C.F.R. § 130.0, 40 Fed. Reg. 55335 (Nov. 28, 1975).

4. Staff, Draft Report of the National Commission on Water Quality, V-104 (1975).

5. 40 C.F.R. part 130, § 130.13, 40 Fed. Reg. 55339 (Nov. 28, 1975).

6. This procedure was in doubt until a law suit brought by the Natural Resources Defense Council was decided. Natural Resources Defense Council v. Train, 5 ELR 20405 (D.D.C. June 5, 1975).

7. §§ 208(d) and (e).

8. For example, the type of phased capital investment planning upheld in the New York decision Golden v. Planning Board of the Town of Ramapo, 2 ELR 20296 (N.Y. Ct. App. 1972), has apparently been rejected by recent lower court decisions in Virginia. See, e.g., "Fairfax Ban on Sewer Taps Upset," Washington Post, Dec. 30, 1975, p. B1. For a comparison of judicial attitudes toward local zoning authority in 37 states, see N. Williams, American Land Planning Law § 6 (1975).

9. For an excellent discussion of the issues involved in allocation of functions among governments, see the five volume report of the Advisory Commission on Intergovernmental Relations, Substate Regionalism and the Federal System (1973-74).

10. E.g., C. Thurow, W. Toner, and D. Early, Performance Controls for Sensitive Lands (American Society of Planning Officials 1975).