Please forgive me. Here are three plausible stories: (1) I'm an economist, and economists often comment on unintended effects of well-meaning programs. It's a professional bias! (2) I'm a libertarian, and libertarians often believe that well-meaning government programs do more harm than good. It's an ideological bias! (3) I'm interested in environmental law and policy, and surely it's relevant, perhaps even important, to know the actual effects, both harmful and beneficial, of a particular policy? The beneficial environmental effects are intuitively plausible on the face of the statute, so it's the potential harmful effects that require a research bleg. It's a substantive interest!

Finally, I could always do a literature review on the subject. But research blegs are easier, and that's part of what blogs are good for.

You see cynical Conspirators; I see cynical commenters. Perhaps we are all cynics.

I'm an economist who has written about the Clean Water Act. Unintended consequences seem unlikely if only the limit is changed. But an important issue in the NPDES permits is the time-dimension of the limit (daily maximum, weekly average, monthly average). A change in the EPA's focus (e.g., daily maximum vs. monthly average) would likely have substantial effects on discharges.

Sasha, you still need to be more clear. The NPDES program covers point source discharges to waters of the US, and municipal separate storm sewer systems (the MS4 program). What, precisely, would you add?

The big topic in water quality circles is ag. runoff. Regulating ag. runoff (to eliminate nutrient plumes that are ever more rapidly killing the world's oceans -- see the LA Times last Sunday) would be incredibly difficult, not to mention politically impossible.

Assuming, arguendo, that the NPDES program was expanded to cover ag. runoff into the nation's rivers, one possible impact could be, hypothetically, the relocation of row cropping (corn, soybeans, etc.) overseas, where farmers could use even worse practices for adding nutrient loads that are subsequently discharged to the ocean. However, it's worth noting that US row crops are heavily subsidized and are farmed in a way which is very energy intensive. It would take some pretty extensive modelling to analyze where row cropping would move to (if at all), and whether the farming practices in that country would have a greater or lesser environmental impact.

i'm not personally aware of any such modelling.

The definitions of "point source" and "navigable waters" have been subject to elastic interpretations over the years. The Rapanos saga deals the expansion of waters of the U.S./ navigable waters to include dry ditches and the like and even vehicles have been interpreted as "point sources" by at least one court. While my job requires me to usually oppose these types of expansive readings, I must concede that I can't think of how expanding the universe of facilities requiring a NPDES permit really engenders unintended environmental harms. At the very far reaches of my imagination, I could argue that limiting discharges could require facilities to store more pollutants in lagoons or tanks until they could be discharged. These lagoons and tanks could overflow or rupture, causing catastrophic environmental consequences, but this is a relatively rare problem already present at currently permitted facilities.

Here's an example of what I'm thinking about.

(1) Dams take from upstream and discharge downstream. The upstream water may contain pollutants; the dam doesn't itself add anything. Current doctrine is that the operation of the dam doesn't add a pollutant to navigable waters. No NPDES permit required.

(2) Some water diversion projects take from one body of water and discharge into another body of water. The original body of water may contain pollutants; the pump doesn't itself add anything. Current doctrine is that the operation of the pump does add a pollutant to navigable waters. An NPDES permit is required.

My point in this post and comments thread is not to argue whether this is right as a matter of CWA doctrine. Rather, let's consider two changes: (a) Dams must get NPDES permits, or (b) water diversion projects don't need to get NPDES permits. Intuitively, one might guess that (a) is "better" for the environment because it requires more permits, while (b) is "worse" for the environment because it allows more unpermitted discharges.

All I'm looking for is whether there are some non-obvious ways in which the effects would go in the unexpected direction. Would requiring an NPDES permit in (a) create unintended anti-environmental effects that might partly undo the benefit? The flip side: Would foregoing an NPDES permit in (b) create an unintended pro-environmental effect that would partly mitigate the harm?

Yes, that's the sort of thing I had in mind. Of course, I'm looking for specific examples tailored to the NPDES program. Perhaps there are none; perhaps there are but they're not documented; but I'm still looking.

Yes, I understand that the operation of the pump isn't the issue -- I specified in each hypo that the dam or pump didn't provide any extra pollution just to make it extra-clear that the only issue was the presence of pollutants in the original body.

Also, from an environmental standpoint, 401 certification needn't always be highly onerous? Clearly, it's not negligible (see S.D. Warren), but NPDES must be something extra, or else NWF v. Gorsuch, Miccosukee, etc., wouldn't have been big deals, right?

Thanks. Really, my sole point of interest right now is dams and water diversion projects. Does anyone have anything on that?

Sasha:

Try talking to the lawyers in the Friant Dam litigation. I think you'll discover that it's not so much the scope of the NPDES and 401 programs that led to 18 years of litigation as it is the interplay between the Clean Water Act, the Reclamation Act, the state and federal Endangered Species Act and other state water law.