2
Water Quality Legislation and Policy for Phosphorus Pollution Control

2.1 Introduction

Policy and regulation play a critical role in empowering technological development and innovation process - from preliminary research to technology diffusion on the market (Kemp 2001; Ashford and Hall 2011; OECD 2018a). The major environmental protection policy, the Polluter-Pays Principle (PPP) was introduced nearly a century ago (Box 2.1). Its' global implementation would bring considerable benefits in protecting water quality from pollution and illegal discharges.

Box 2.1 The Polluters-Pay Principle

The PPP states that those who produce pollution should bear the costs of managing it to prevent damage to human health or the environment (OECD 1992; Munir 2013). Nearly 50 years ago (1975), at Community level, the polluter was defined as the person who directly or indirectly causes deterioration of the environment or establishes conditions leading to its deterioration.

In 1972, the Organization for Economic Cooperation and Development (OECD) recommended the PPP as the 'Guiding Principle Concerning the International Economic Aspects of Environmental Policies'. In 1973 the Council of the European Communities approved the First Program of Action on the Environment and the PPP was made one of the principles of Community's environmental policy. The PPP became globally accepted as one of the principles of environmental policy in many countries and regional and international conventions (OECD 1992; Munir 2013). However, In the USA, the PPP has not been fully implemented nor has it been recognized as a distinct principle or a policy (Lockhart 1997).

Policies, and in particular those dealing with environmental protection, are always formulated with a view towards the available technology options for dealing with the particular problem. Therefore, as national environmental policies are influenced by the currently available technologies, technology availability plays a vital role in the policy development process in all stages from formulation to the implementation and development of compliance options (Kemp 2001; Ashford and Hall 2011; OECD 2018a).

However, when attempting to solve environmental pollution problems, the fact that national policies are based on currently available technologies creates complex issues and colossal obstacles to novel technologies development and market introduction. On one hand, it has been recognized that innovative products, processes, and services specifically developed to solve environmental pollution problems may reduce the emission of pollutants and protect natural resources, human health, and biodiversity. They can also foster both economic and social development (e.g. OECD 2011, 2013, 2018a, 2018b). Yet, the fact is that the potential inclusion of any novel technology into national strategies would require the revision and adaptation of priorities, needs, and instruments, which takes a very long period of time (OECD 2011, 2018a). This is best illustrated in the example of the development of policies to support micro Combined Heat and Power in Germany which took 30 years (OECD 2011).

Without a regulatory requirement to deal with a particular environmental pollution problem, the potential recognition, consideration, or inclusion of innovative technologies capable of solving these problems (e.g. Climate Change Mitigation; Water Pollution Prevention, or Reduction) into national and international policies and strategies as 'available technologies' is extremely complex and time consuming. Moreover, even in a rare instances when the inventor succeeds in obtaining his or her technology approved by the accredited environmental technology verification (ETV) authority, its implementation remains hindered for years and/or decades due to absence of national strategies and regulatory requirements for technologies to deal with the particular type of pollution. For example, in the past 10+ years several technologies and products have been developed in the USA that demonstrated capability to reduce P pollution from agricultural and residential onsite septic systems effluents; however, their deployment on the market has been hindered by the extremely long and arduous process intersected with numerous financial and regulatory obstacles and the absence of regulatory requirements. Such a situation results in continuous water pollution from all point and nonpoint pollution sources (NPS). It also prevents the growth of small businesses offering products for water pollution prevention, and consequently diminishes job creation, economic growth, and development.

2.2 Water Policies to Protect Water Quality from Phosphorus Pollution

Current Water Policies to protect water quality from pollution are insufficient and inadequate, globally (UNEP 2016; UN Water 2017). Some of the established challenges and barriers to achieving water quality improvements include: (i) poor data quality and quantity (both data collection sites, density, and frequency); (ii) inadequate or absence of national strategies and practices for pollution reduction; and (iii) socioeconomic and policy constraints (e.g. UNEP 2016; UN Water 2017; Voulvoulis et al. 2017). Moreover, even when considerable national and international strategies and commitments are present for a long period of time, such is the case with the EU Water Framework Directive 2000/60/EC (WFD), there are continuous and persistent problems with their implementation. As a result, although considered the most substantial and ambitious piece of European environmental legislation to date, the WFD has failed to deliver its main goal of reducing pollution (including phosphorus) and improving water quality (Voulvoulis et al. 2017).

Responses to water pollution can be broadly divided to political, legal, economic, and social (Kraemer et al. 2001). One of the common political approaches concerning water pollution abatement is the adoption of Environmental Quality Objectives (EQOs). The EQOs define target values for key ambient quality parameters and are subsequently used to evaluate existing environmental conditions.

Until the 1990s the USA and Europe used a uniform standards approach, which served to set limits on a common coordinated basis to deal with water pollution problems. This approach led to significant pollution reduction from point pollution sources, in particular for municipal and industrial wastewater effluents. However given the costs of implementation of the pollution reduction measures, in early 2000 both the USA and the European Union (EU) changed their pollution reduction approaches from the prevention at the source to in-situ ambient water quality (Boyd 2000; Kraemer et al. 2001). This change in the approach had very negative implications on water pollution reduction (including P) and in achieving water quality improvement goals (Christian-Smith et al. 2012; UNEP 2016; Voulvoulis et al. 2017).

2.2.1 Water Policies for P Pollution Control - the United States of America

The basis of the US Clean Water Act (CWA) was the Federal Water Pollution Control Act, enacted in 1948. The Act was significantly reorganized and expanded in 1972 and became commonly known as the CWA (US EPA 2018d). In the same year, the National Pollution Discharge Elimination System (NPDES) was created (Section 402 of the CWA) and became the central piece of US water quality regulations.

The NPDES programme requires polluters to obtain permits, or licences to discharge; the permits specify pollution amounts that can be legally discharged. Depending on the type of the pollutant, discharge limits are determined based on the 'best conventional' control technology or 'best economically achievable' technology (Boyd 2003; US EPA 2018d). However, there is no reference to innovative 'alternative' technologies. Moreover, the NPDES programme only addresses pollution from point sources leaving NPS completely neglected. In addition, NPS became recognized as the primary cause of the water quality impairment (US GS 1999; Boyd 2000).

In the past 20 years there have been several major rules and a few legislations and amendments enacted in an attempt to deal with the ever-increasing phosphorus pollution and subsequent harmful algae blooms and hypoxia (HABaH) occurrences (Table 2.1).

Table 2.1 US Water policy rules and regulations related to P pollution and eutrophication issues.