Nonpoint Sources Mark a Dangerous Vulnerability in the Clean Water Act
Jacqueline Hillman | April 2021
Runoff from a farm in Iowa during a rainstorm in 1999
ince its inception in 1948, The Clean Water Act (CWA) has aimed to protect the integrity of our nation’s waterways. The original goal of the CWA was to restore navigable channels such as the Cuyahoga River, which caught fire in 1969 due to sustained oil leakage into the river from nearby manufacturing plants. In order to prevent similar disasters and clean up our water bodies, the CWA prohibits the discharge of pollutants from point sources into navigable waters without a National Pollutant Discharge Elimination System (NPDES) permit.
To better understand the framework within which entities manipulate CWA policy, I will briefly define often-vague terms in environmental policy. “Discharge” of pollutants refers to the addition of a contaminant that degrades water quality, harming human or ecosystem health. “Point sources” refer to channels, pipes or ditches, excluding agricultural runoff, and “navigable waters” include bodies of water through which a vessel may travel.
While each of these terms has led to various legal and political disputes over the rigidity of its applications, this piece will focus on the distinction between nonpoint and point sources.
Consider this hypothetical scenario: a small family farmer runs a cattle farm. Due to erosion and weather conditions in his region, the side of the hill bordering the pasture has degraded and a significant amount of waste produced from the livestock enters the river below the property. Under the CWA, this farmer’s pollution of the river is considered a nonpoint source, and thus is not subject to the same regulation as, say, a pipeline depositing ecologically-damaging sediment into a lake from a coal factory (a point source).
For point sources, the CWA has a rigid, technology-based standard, utilizing TBELs (technology-based effluent limitations), WQBELs (harm-based, water quality-based effluent limitations), and NPDES permits to set strict limits for the quantity of pollutants allowed to be discharged given the constraints of available technology. These standards are clear, easily enforceable, and NPDES permits in particular have a very straightforward process for their acquisition.
The Problem of Nonpoint Sources
Congress also attempted to produce some sort of cleanup effort for nonpoint sources as part of the 1987 CWA amendments. Section 319 of the CWA outlines the provision of “grants for implementation of management programs” aimed at controlling “particularly difficult or serious nonpoint source pollution problems,” implementing “innovative methods or practices for controlling nonpoint sources of pollution,” and “control[ing] interstate nonpoint source pollution problems,” among other goals. Unlike the strict NPDES permits and TBEL system, nonpoint regulation as outlined in Section 319 relies on the completion of an application process, placing the impetus on farmers, miners, and other common sources of nonpoint source pollution to actively seek out grant funding and implement systems with a lot more ambiguity. Additionally, these grants provide for minimal gains in environmental quality given the massive nonpoint source pollution issues that the country currently faces.
Recall our hypothetical farming situation. The EPA reports that nonpoint farm operations generate approximately 500 million tons of manure annually, with manure runoff causing a plethora of contamination issues including polluting water with “pathogens”, “oxygen-demanding organics,” and “solids that contaminate shellfishing areas.” Farm Aid reports that family farms are under an unprecedented economic strain in the face of COVID-19 and are being edged out of the industry by large corporations. Yet, disappointingly, the EPA allotted a mere $172.3 million in Federal Section 319 grants last year, not nearly enough to help struggling family farmers in even worse economic circumstances due to the pandemic. Moreover, many small farmers lack the information on how to enter the application process in the first place. Unable to pursue the pathway of federal grants, they instead tap into their already-dwindling savings to mitigate the effects of waste management issues. Therefore, regardless of how eager family farmers may be to preserve their land or even prevent pollution, this loose, incentive-based nonpoint policy poses significant challenges to regulating nonpoint pollutants.
So what would be a better solution to regulating nonpoint sources while protecting the interests of small business owners? Statutes with extremely explicit, firm regulatory requirements, such as the Endangered Species Act, can be effective because of their strictness, but can often fail to balance the interests of private property owners with the interests of groups seeking conservatory measures. Instead of imposing further financial burdens on small businesses whose operations intentionally or unintentionally pollute through nonpoint sources, the EPA should devote more resources to fund grants, but also to foster better Federal-State partnerships to ensure more effective distribution of resources. Another solution, perhaps in conjunction with the grant program, would be to synergize public environmental interest with the private sector, including research and development into renewable waste management and runoff systems.
The Clean Water Act has had immense success in employing technology-based standards to clean up our country’s waterways. Yet there is still quite a distance to be travelled in achieving a level of cleanliness that ensures safety for both human communities and the organisms and ecosystems that surround us.