Can Private Sector Partners Help Resolve Stormwater And TMDL Permit Gridlock?
Total maximum daily load (TMDL) programs are necessary, but not always effective — due in large part to institutional obstacles in the public sector. The private sector may offer a more workable solution.
By Kirk Mantay, habitat restoration ecologist and certified Professional Wetland Scientist
The time, resources, and effort spent trying to restore and repair American waterways can now be measured in decades (four) and dollars (billions). Yet, we are not making the progress we should be. Disagreement and stalemates frequently occur between regulatory agencies and permittees, preventing mandatory programs from advancing — to say nothing of innovative approaches for retrofit and restoration. Too often, project proposals stall when interagency staff impose conflicting requirements — or simply refuse to act on permit applications. However, the fact that this troubling situation exists and seems to repeat itself should not prevent the regulated community from aggressively pursuing waterway remediation.
An important human tool exists that is appropriate for this long-term task: the inclusion of private non-profit and for-profit corporations in these ongoing discussions as program partners, not simply regulated parties. Whether serving as mediators, project managers, or project funders, private third parties can alleviate gridlock and help negotiate better stormwater protocols to benefit the interests of the regulated community, the public resource, and regulators. What’s clearly needed to advance TMDL implementation in particular is an ongoing set of closedloop, multiple party negotiations to explore all options in a way that accelerates regulatory compliance and meets minimum standards set by all parties.
Compliance Killers
At the municipal, county, and state level, considering the inclusion of private partners in interagency water policy discussions, especially those revolving around permitting processes, can be an effective way of resolving gridlock and achieving compliance. This is because private partners have a more focused set of goals (discussed later), and more expansive set of methods for program advancement. Conventional interagency mediation has resulted in some regulators, notably federal staff in regional offices, refusing to negotiate compliance measures and thereby refusing to allow TMDL (or other Clean Water Act programs) compliance to occur in the manner already approved by another office of the same agency. Compliance — the shared goal — becomes the victim. In some cases, regulatory staff have tried to cancel or “kill” water resource enhancement projects previously funded and vetted by their coworkers in the same agency.
This type of gridlock can be alleviated by private third parties who negotiate towards a robust TMDL and stormwater compliance package that satisfies the interests of regulators and the regulated community, while also benefitting water resources. What’s clearly needed to advance the TMDL is an ongoing set of closed-loop, multiple-party negotiations to explore all remediation options, not only those preferred by regulatory staff, in a way that accelerates regulatory compliance and meets minimum standards set by all parties.
Private Sector Advantages
Non-profit conservation organizations, particularly watershed organizations, are well suited to these kinds of tasks because they are mission-driven and do not derive owner or board profit as a result of success. Focusing on a primary objective — local clean water — these groups employ scientists, planners, engineers, and even attorneys. These staff and their board members are versed not only in TMDL and stormwater policy but also have experience implementing ground-level compliance activities. Tools including process negotiation, scientific monitoring, and political advocacy on behalf of agency goals can be handled by local nonprofit organizations.
For-profit organizations, on the other hand, have a valuable ability to change course in dynamic political environments to prescribe actions that best benefit compliance partners without needing to change law or policy. For-profit partners are valuable stakeholders because they can quickly assemble solutions and resources (procedural, regulatory, scientific, financial, and on-the-ground) that can be utilized to resolve permit gridlock if all parties are acting in good faith. Typically, for-profit corporations can be used to advance practice and policy where agencies are politically unable to do so.
Meaningful private sector input changes the dynamic of effort prioritization, if nothing else. As defined by negotiation experts over the past several decades, effective private sector parties can add power sources not always present within public agency debates, including the desire for legitimacy, the willingness to accept risk, and the desire to achieve mission (or retain clients) through repeated successful efforts that meet regulatory scrutiny. When gridlock occurs, it is often a result of some combination of permit agency inflexibility and permittee agency inaction. The next time (likely today) you experience permit gridlock, consider engaging private partners. You may find that the partnership brings to light new opportunities, new energy, and new techniques to accelerate compliance.
About The Author
Kirk Mantay is a habitat restoration ecologist and certified Professional Wetland Scientist with 17 years’ experience in the funding, permitting, and delivery of habitat and stormwater projects in the Mid-Atlantic U.S. He currently serves as the director of watershed restoration for the South River Federation, a nonprofit watershed organization based in Annapolis, MD, and holds degrees in geography and planning (MA), fisheries and wildlife management (BS), and geography (BA).