September 16, 2009

One More Point on the N.Y. Times Water Article -- the Problem of Nonpoint Source Pollution

Sunday’s New York Times article about the neglect of our clean water laws included a shocking example of how a regulatory gap in the Clean Water Act can harm public health. For example, the article referred to water supplies in parts of the Farm Belt that are contaminated by dangerous levels of pesticides, which originate with agricultural runoff and cannot be corrected by enforcement of the Clean Water Act. Although the Act provides a comprehensive regulatory program for point source discharges of pollution — discharges from pipes and other discernible conveyances — it does not directly regulate generalized runoff from farms, forestry activities, overflowing septic tanks, parking lots, and mining operations, something that is generally referred to as nonpoint source water pollution. As a result, nonpoint source pollution, especially from agriculture, has become the chief impediment to achieving national water quality objectives. Water pollution from nonpoint sources dwarfs all other sources by volume and often adds dangerous pesticides, other toxics, and fecal contaminants to our waters.

The Clean Water Act today requires that the states identify those rivers and other waters that are unable to meet water quality standards because of nonpoint source pollution. The states are then directed to develop Best Management Plans (BMPs) to address these nonpoint source problems. This program, unfortunately, has not worked well. One major weakness is that many states have adopted non-regulatory approaches, including voluntary BMPs, to deal with the problem. These voluntary programs have not produced significant progress, and the CWA gives EPA only limited power to deal with such ineffective approaches. EPA can only approve or disapprove of an inadequate state plan; it cannot promulgate a federal plan in lieu of an inadequate state plan. Thus, EPA has been placed in an unenviable position. It can disapprove a state plan and thus withhold the funding that a state needs to make at least some progress in the area, or it can approve an inadequate plan. The result has been predictable.

Congress, therefore, needs to revisit the problem of nonpoint source pollution. States need to review their waters on a regular schedule in order to update the list of those which are impaired due to nonpoint source discharges. The Best Management Plans required by the Act must require enforceable conditions and requirements. If a state fails to include such conditions and requirements, EPA must be empowered to promulgate a federal BMP for the state. Only in this way can EPA ensure that effective nonpoint source controls are established. Finally, Congress must stipulate that the states establish credible enforcement programs for their nonpoint sources and give EPA the authority and resources to backstop these enforcement efforts. It is time to complete the work that Congress undertook in 1972 when the original Act was passed. It is time to fill the gap that has stood as one of the primary impediments to achieving the nation’s dream of actually having fishable and swimmable streams.

William Andreen, CPR Member Scholar; Clarkson Professor of Law, University of Alabama School of Law. Bio.

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